|
Post by funkyodar on Apr 2, 2014 10:20:24 GMT -5
The only way I could ever see it happening is if ssa were to successfully convince congress to give it the full control they want over their judges. Thus making ssa aljs at worst "hearing officers" and at best AJs similar to what immigration and the VA has without the APA protections.
Then an independent alj corp could be easily put together to serve all the other agencies that have adversarial hearings.
Lets all hope that never happens.
|
|
|
Post by luckylady2 on Apr 2, 2014 10:31:55 GMT -5
If you read the APA, a pool of fungible ALJ's is exactly what the Act contemplated.
|
|
|
Post by mamaru on Apr 2, 2014 11:02:35 GMT -5
Anything is doable Funky. I went on the "mommy track" as a lawyer because of my special needs kid. I can remember wanting to be an ALJ in 2000! Worst case scenario is that you stay put in your current gig which is one of the best legal jobs for parenting.
|
|
|
Post by funkyodar on Apr 2, 2014 11:47:31 GMT -5
I agree mamaru. Having my odar job has meant working 40 hours a week over 5 days (versus 60 to 70 over 6 or 7). Being off every holiday the schools are closed. Having the leave and flexibility to take off for doctors appointments of school activities. Great med insurance I couldn't get in private practice due to my son's preexisting condition. Possibly one of the last great retirement packages to insure I can afford to help him for a long time. And no stress of an upcoming trial, unhappy client or late night/weekend call. Not having to worry about tax deposits, sick days for employees, or scheduling family vacations around court dates or working a family trip into a week of depositions.
I certainly miss the thrill of private practice. Of cross examinations and closing arguments. The lottery ticket aspect of knowing any day could be hugely lucrative or highly expensive.
But, certain things in your life make you rearrange priorities. If you need to put family first and can set aside your ego needs of being a "litigator" (and learn to live on guaranteed but less income) an odar gig is perfect.
the only major complaint is, unless you wanna go management, the only way to advance is to alj. And anyone can see from this board how competitive and how high quality the competition is for those gigs.
And as a judge, you will make more but actually have less of that freedom than you do as an attorney with odar. But its definitely gonna be worth it if I am blessed to get a gig.
|
|
|
Post by privateatty on Apr 2, 2014 17:01:25 GMT -5
The only way I could ever see it happening is if ssa were to successfully convince congress to give it the full control they want over their judges. Thus making ssa aljs at worst "hearing officers" and at best AJs similar to what immigration and the VA has without the APA protections. Then an independent alj corp could be easily put together to serve all the other agencies that have adversarial hearings. Lets all hope that never happens. I've asked this before and I'll ask it again. What's not adversarial? Oh, I get that there is only one lawyer in the room and often none or some rep/paralegal/whatever. And I get that the ALJ has to ask all the questions needed to develop the record. And I get that the ALJ not only has to look out for the Claimant in the face of incompetent reps or none at all yet also protect the Trust Fund from underserving claims. And I get that this whole process is informal and not rooted in the Federal Rules of Civil Procedure and that evidence rules are relaxed or sometimes non existent. You ODAR ALJs need alot of skills and I will bet that there are a few ALJs who will read this who will concur that their prior skills in court as a lawyer were truly honed in wearing the Black Robe. The Claimant wants his/her lifetime benefits in the worst way! And SSA/DDS has denied them and will be oblivious to see them starve. Is it that much different than a work comp hearing when the Claimant is unrepresented? I think not. If someone wants something of true value and the Agency up till now has denied them, of course its adversarial--at least to the Claimant who until they see you in the black robe has only known the bitter taste of defeat and an empty belly and has had no hope. I think this whole mantra of "non-adversarial hearings" is code for ALJ=Hearing Officer. It devalues you, IMHO. Be careful, my friend. The job IS special in the two or three hats you must wear, but I think you would be hard pressed to find a Claimant who would call what he/she has been through non adversarial. They have the wounds to dispute that.
|
|
|
Post by Propmaster on Apr 7, 2014 17:16:47 GMT -5
Is it that much different than a work comp hearing when the Claimant is unrepresented? I think not. I disagree. In a workers' compensation hearing, you have a claimant who wants benefits and an employer or insurance company who does not want to pay benefits. They will argue about each issue. The theory of the "adversarial" process is that because each side is invested in the outcome, each issue will be fully addressed both factually and in legal argument (or at least to the extent the pro se claimant can do so). The significance of whether a hearing is adversarial is not the attitudes of the party(ies), but the nature of evidentiary development. In contrast, the ALJ does/should not have a personal stake in the proceeding. The claimant is invested in presenting the best case he or she can present, while the "opposite" side has no development, evidentiary submission, or legal arguments being made. In this situation, the tribunal (the ALJ) relies on the hightened ethical duties of lawyers (I don't know what applies to non-attorney reps) to honestly set forth the evidence and legal argument. In an adversarial situation, if one side makes a legal argument that is colorable, but not well-settled, the decision-maker can count on the other side to rebut it, or to bear the cost of lesser competence if it is not rebutted and the decision-maker follows its lead. In SSA and other non-adversarial contexts, there is no other party doing research to undermine the claimant's allegations or legal arguments, and the 'cost' is borne by 'society.' In SSA and other non-adversarial contexts, the representative arguing a colorable but not settled legal argument should present an accurate synopsis of both sides of the existing legal debate and then explain why he or she would urge the ALJ to find in a particular manner in the instant case. The ALJ can then review the cited research to come to a decision. (I am talking about ideally, here; I know this is not always what happens). This is not related to the desire of the claimant to win, or the need of the claimant for benefits or medical care - the issue is the amount of 'vetting' that the evidence has undergone before being presented to the decision-maker and the amount of 'responsibility' that the decision maker feels or should feel for verifying the facts and law presented. Which is best? Which is best for SSA? I don't argue the points here. I only hope I have helped you understand a possible answer to your initial question, which I understood to be, "how is this process non-adversarial."
|
|
|
Post by 71stretch on Apr 7, 2014 17:21:47 GMT -5
Is it that much different than a work comp hearing when the Claimant is unrepresented? I think not. I disagree. In a workers' compensation hearing, you have a claimant who wants benefits and an employer or insurance company who does not want to pay benefits. They will argue about each issue. The theory of the "adversarial" process is that because each side is invested in the outcome, each issue will be fully addressed both factually and in legal argument (or at least to the extent the pro se claimant can do so). The significance of whether a hearing is adversarial is not the attitudes of the party(ies), but the nature of evidentiary development. In contrast, the ALJ does/should not have a personal stake in the proceeding. The claimant is invested in presenting the best case he or she can present, while the "opposite" side has no development, evidentiary submission, or legal arguments being made. In this situation, the tribunal (the ALJ) relies on the hightened ethical duties of lawyers (I don't know what applies to non-attorney reps) to honestly set forth the evidence and legal argument. In an adversarial situation, if one side makes a legal argument that is colorable, but not well-settled, the decision-maker can count on the other side to rebut it, or to bear the cost of lesser competence if it is not rebutted and the decision-maker follows its lead. In SSA and other non-adversarial contexts, there is no other party doing research to undermine the claimant's allegations or legal arguments, and the 'cost' is borne by 'society.' In SSA and other non-adversarial contexts, the representative arguing a colorable but not settled legal argument should present an accurate synopsis of both sides of the existing legal debate and then explain why he or she would urge the ALJ to find in a particular manner in the instant case. The ALJ can then review the cited research to come to a decision. (I am talking about ideally, here; I know this is not always what happens). This is not related to the desire of the claimant to win, or the need of the claimant for benefits or medical care - the issue is the amount of 'vetting' that the evidence has undergone before being presented to the decision-maker and the amount of 'responsibility' that the decision maker feels or should feel for verifying the facts and law presented. Which is best? Which is best for SSA? I don't argue the points here. I only hope I have helped you understand a possible answer to your initial question, which I understood to be, "how is this process non-adversarial." Agree with this. Yes, SSA denied their benefits, and yes, that feels adversarial to the claimant, but OGC is not at the hearing actively defending that decision, so that what propmaster describes can, and does, happen. As he says, it doesn't always happen, but the structure is there so it can.
|
|
|
Post by privateatty on Apr 7, 2014 19:28:27 GMT -5
Thank you Propmaster. As observer53 points out it must feel adversarial to the Claimant.
The other point I wanted to make is that despite it being "non-adversarial" it is still an APA Hearing and one that should have an ALJ presiding. I fear that by continuing to call it "non-adversarial" we devalue the process that Propmaster has so well outlined as laymen and politicians in their ignorance may buy the argument that ALJs are not needed.
|
|
|
Post by valkyrie on Apr 7, 2014 20:14:58 GMT -5
Thank you Propmaster. As observer53 points out it must feel adversarial to the Claimant. The other point I wanted to make is that despite it being "non-adversarial" it is still an APA Hearing and one that should have an ALJ presiding. I fear that by continuing to call it "non-adversarial" we devalue the process that Propmaster has so well outlined as laymen and politicians in their ignorance may buy the argument that ALJs are not needed. I agree that these are still APA hearings that require an ALJ, but I fail to see how a non-adversarial setting devalues the process. There is no shortage of ignorance/resentment of the legal system in this country, and the ODAR system is not any more vulnerable than any other legal process. Workers comp, med mal, and PI have taken a bigger beating than we have, but of course they made bigger enemies with bigger donor pockets! Within ODAR most of the concern about the non-adversarial description has come from Old Guard ALJs with litigation backgrounds and fragile egos. They also advanced the argument that if ODAR attorney advisors were hired as ALJs, the ALJs would quickly be replaced by hearing officers.
|
|
|
Post by privateatty on Apr 8, 2014 15:41:07 GMT -5
Thank you Propmaster. As observer53 points out it must feel adversarial to the Claimant. The other point I wanted to make is that despite it being "non-adversarial" it is still an APA Hearing and one that should have an ALJ presiding. I fear that by continuing to call it "non-adversarial" we devalue the process that Propmaster has so well outlined as laymen and politicians in their ignorance may buy the argument that ALJs are not needed. I agree that these are still APA hearings that require an ALJ, but I fail to see how a non-adversarial setting devalues the process. There is no shortage of ignorance/resentment of the legal system in this country, and the ODAR system is not any more vulnerable than any other legal process. Workers comp, med mal, and PI have taken a bigger beating than we have, but of course they made bigger enemies with bigger donor pockets! Within ODAR most of the concern about the non-adversarial description has come from Old Guard ALJs with litigation backgrounds and fragile egos. They also advanced the argument that if ODAR attorney advisors were hired as ALJs, the ALJs would quickly be replaced by hearing officers. I think that the idea of AA's being hired would necessarily lead to a change resulting in hearing officers is absurd. But the underlying concern about an ALJ position being de-valued is important. There is merit in your argument that "Old Guard" ALJs fear the term "non-adversarial" being bandied about does have legs, but I'm not sure I share its basis with you as I can't discern it. If your theory is that non-ODAR ALJs see ODAR as its own set of trees whose dominance in the forest precludes forest like vision (and trust me I mean this with no prejudice) then yes, I see an issue where you do not. Obviously, as Propmaster has pointed out, it is true, from an evidentiary and procedural standpoint, that the hearings bear little resemblence to what we all grew up with as litigators (and conduct now). And yes, not understanding it from a ground-up seat of the pants beeen doing this for a long time point of view adds to the "concern". Heck, there are ODAR ALJs who think the dustup about the change in the Position Description is much ado about nothing. I think they are ostriches. Fine, every one is entitled to their opinion. The folks in Congress who created the APA and control the purse strings (among other things) may think that the "non-adversarial" nature of ODAR hearing don't require hard to fire ALJs. That is my chief concern other than Agency interference.
|
|