Sep 30, 2010

The Binder And Binder Lawsuit

Binder and Binder, which probably represents more Social Security claimants than any other entity, has sued Social Security seeking an order that would require Social Security to allow its employees to appear at hearings before Administrative Law Judges (ALJs) solely by video. It is unclear to me whether Binder and Binder seeks this only where a video hearing has already been scheduled or whether the firm seeks to appear by video even in cases where no video hearing has been scheduled because the claimant and ALJ will be in the same room. I will post my views later on the legal merits of this lawsuit but I will talk now about what I think is behind this suit.

I have no inside information about Binder and Binder's motivations. However, I have been practicing Social Security law for 31 years so I have some idea of the economics of their type of practice. I think this helps me understand what is going on.

Binder and Binder is representing Social Security claimants nationally. There are very few other entities trying to do this. Certainly, Binder and Binder is audacious. Just about everyone else is trying to get clients only in local areas.

I think there are major disadvantages to trying to operate nationally but Binder and Binder has one thing going for them with a national practice. If you are going to have much of a Social Security practice, you just about have to advertise. Television advertising is the most efficient way to do this, assuming you want a lot of cases. Television advertising is more efficient when it is done nationally rather than locally.

Normally, attorneys and others who represent Social Security claimants meet with their clients at least once or twice well in advance of any hearing. Binder and Binder is big but nowhere near big enough to have offices all over the country. Sending employees out to meet with clients in advance of hearings would be impossibly expensive for Binder and Binder so they dispensed with that a long time ago. This has the effect of reducing client satisfaction but you are not looking for repeat Social Security business anyway. This has to cut down on referrals from satisfied clients, however. Binder and Binder does not have to worry too much about clients firing them. Binder and Binder is notoriously aggressive when clients try to fire them. They always refuse to waive their fee meaning that anyone replacing them must file a fee petition, which is a pain in the neck. Binder and Binder always files a fee petition in these cases. It is amazing just how many hours of work that Binder and Binder shows on these fee petitions. This makes it hard for anyone replacing them to get a decent fee. Most people who represent claimants dislike messing with former Binder and Binder clients.

I am of the strong opinion that eliminating face to face contact before the hearing reduces the effectiveness of representation. There are some things that cannot be done well over the telephone. As an example, gauging the severity of mental illness and persuading a mentally ill individual to get under psychiatric care are much less difficult to do in person. However, I must admit that there are plenty of attorneys who are not trying to operate nationally who meet with their Social Security clients for the first time on the day of the hearing. I think this is wrong on many levels. Even if viewed only in financial terms, this is the wrong decision because it cuts down on referrals from satisfied clients and because it reduces the chances of success.

Whatever disadvantages come from not meeting with clients prior to the day of the hearing pale in comparison to the expense which Binder and Binder must bear when their employees travel, often a considerable distance, to attend ALJ hearings. Many, perhaps most, of Binder and Binder's hearings require them to send someone by air. In most cases, this will take at least a day. Even if Binder and Binder is able to send an employee by car to a hearing, the employee may be traveling hundreds of miles round trip. On the whole, I am pretty sure that this alone completely overwhelms any advantage they have from advertising nationally.

There are reports that Binder and Binder runs a very lean operation. Another way of putting it is that they pay low wages, give few benefits and afford their employees poor working conditions. You can read about it here, here here, here and here. I hesitate to link to such anonymous reports but from conversations I have had with former Binder and Binder employees, I think these anonymous reports are true. This has to make it difficult to give good quality service and has to reduce the firm's chances of success in winning cases.

If Binder and Binder could dispense with the need to have their personnel travel to hearings, they would be better positioned to overcome the disadvantages that flow from operating nationally. They would be better situated to compete in an environment in which the average fee per case is reduced because backlogs have been reduced.


Anonymous said...

I don't see a due process argument or other constitutional claim in the complaint (which probably has as much to do with standing as anything else because Binder is not filing on behalf of any claimants). What's left is essentially a contract claim. Binder is arguing because they were selected as a pilot office and because they had to purchase equipment for VTC hearings, SSA is bound to accommodate their request for three way hearings. All I can say is good luck with that argument.

Anonymous said...

I've taken over a few of the Binder and Binder Social Security cases. I have never seen one bit of work done by Binder and Binder in those files. No medical records, no brief. Nothing at all in advance of the hearing. In each case the reason a client came to me was because Binder and Binder was charging inordinate expenses. The client had to pay to fly a Binder and Binder rep from NYC to a New England city and pay for overnight motel costs. $750.00 was a common figure for expenses. I don't worry about their fee petitions. I have always gotten 100% of the available fee. I include statements from my client with the petition to the effect that my client had never been able to talk to the B&B folks, and to the best of their knowlegde B&B had done nothing on their case.

Anonymous said...

Binder can still get some limited reimbursement for travel expenses from Social Security which somewhat offsets the travel expenses.

Anonymous said...

Just want to throw my towel into the ring here: As a former Binder employee, I read all of those links and can assure you, 99% of what is said is the honest-to-goodness truth. It is truly that bad. I can also tell you that, despite the enormous expense of their hearing travels, the Binders themselves are doing just fine. Everybody else, not so much, and none are worse off than their clients. Binder is a prime example of someone biting off WAY more than they can chew. In most cases, they would be better off outsourcing their remote hearings to local counsel for a 1/3 of the fee, and they would probably make more money and the clients would actually get decent representation.
The best way to describe them truly is the McDonald's of SSD law.

Anonymous said...

A #4: I think your remark is an insult to McDonald's! ;)

Anonymous said...

As a retired DM, I've had dealings with these folks as a CR on up the line for years. They are part of the "uberfax" crowd, as in faxing multiple copies of the same status request/1696/etc. over and over. I had to assign an OS to cover the fax machine for these redundant requests (and to be fair, they're not the only firm that commits tree murder on a regular basis). As if she had nothing ELSE to do all day...

One day, my office received a call from B&B. They wanted to know when the claims file had been sent to ODAR. The appeals forms hadn't even been received yet! The caller berated the CR with whom she spoke, and the call made it to me. I couldn't believe the lack of courtesy and professionalism on the other end. I finally reluctantly had to hang on the b****.

I decided to complain to my RO in hopes they'd get it to the other RO. Surprise, surprise. Nothing happened. These people are creeps, and having read Charles' links about the way they treat their OWN EMPLOYEES, it's no doubt their clients are getting screwed.

Anonymous said...

Maybe Glenn Beck could do an expose' lol

Anonymous said...

B&B is a volume business. Besides cutting down on travel expense, what B&B wants to do could also cut the number of "advocates" it uses. One advocate could handle East Coast hearings in the morning, then shift to West Coast hearings in the afternoon. What is sad is that most B&B clients could be getting better, more effective, and much more personalized service with a local attorney/representative at the same cost to them (1/4 of retro benefits).