We are all familiar with actor Sylvester Stallone’s series of action movies featuring John Rambo, the angry soldier who slaughtered his enemies with abandon. Wikipedia states it well: “The term “Rambo” is used commonly to describe a person who is reckless, disregards orders, uses violence to solve problems, and is exceptionally tough and aggressive”.
In the legal world, the phrase “Rambo litigator” has come to refer to a hyper-aggressive lawyer who observes no ethical boundaries in his question to win. There are many legal settings in which a combative and disagreeable lawyer may serve a client’s needs well, and the public often seeks out “the toughest lawyer around” in personal injury and family law litigation matters. But is this the kind of lawyer that will serve the social security disability claimant well in the administrative hearing before an Administrative Law Judge? My years of handling only social security disability cases (since 1991) tell me no.
The administrative hearing is not an adversarial proceeding. There is no attorney for social security to spar with, and the hearing is intended to be a fact finding inquiry. While judges in civil trial settings may depend upon the vigorous combat of both side’s lawyers, in a social security disability hearing there is only one person to argue with: the administrative law judge. And as the now retired attorney I started social security disability with 23 years ago in Dallas Texas used to say: “I have never won an argument with a judge”. Effective representation in a social security disability administrative hearing is all about persuasion. Any behavior that suggests to the judge that he or she must be bludgeoned into doing what is right will only alienate the very person most able to help the social security disability applicant.
Administrative Law Judges often secure the expert testimony in the hearing of either/or a medical doctor or vocational expert. The effective social security disability attorney has more latitude in vigorously questioning these experts but it is still true that seeking to embarrass and humiliate these experts will offend all, including most importantly, the admnistrative law judge.
In recent months I have become aware of a trend with some social security disability attorneys who maintain that vocational expert testimony is based upon faulty numbers and that vocational experts do not in fact have the expertise to testify about job availability for given limitations. These arguments have some merit, but in my opinion, do not serve social security disability claimant’s well. A broad challenge to the basic fairness of the administrative hearing will only alienate the judge. In my thorough review of case law I find no federal courts that have found the use of vocational experts in hearings to be improper.
The sad fact is the Rambo lawyer in a social security disability hearing puts on a great show that may impress claimants who simply do not understand the process. They leave the hearing proud that their attorney stood up for them and roughed up the vocational expert, only to receive an unfavorable decision in the mail months later that might have been favorable had their attorney used a carrot and not a stick.