Outsmarting the Conservative Judges: My Strategy for Beating the Statistics and Winning More Cases

Outsmarting the Conservative Judges: My Strategy for Beating the Statistics and Winning More Cases

Social Security Lawyers are complaining about how conservative the judges have become. Yes, it’s true the reversal rates have gone down, the judges are paying fewer cases and the fees have gotten smaller.

Times have changed. Instead of just handling every case the way you used to do it, lawyers need to figure out ways to keep up with the times. Your clients deserve your creativity. Figuring out how to win cases is an ongoing adjustment process. Most judges will pay the claims if you push the right button. It is up to you to figure out where that button is and how to push it.

As a lawyer, it’s easy to tell a potential client their case can’t be won. If you want to beat the statistics, you need to become a great lawyer. That means figuring out how to win more cases. Here’s how:

What Wins a Case?: A Judge by Judge Analysis

The first thing to do is take all of the claims you have won with a conservative judge and put them together. Conduct a serious analysis of those cases. What is the common thread in those claims that runs through each case?

For example, one of my clients found that with one particularly conservative judge, the credibility of the client made all the difference. In each case, when the physician of record specifically stated that the patient was credible, the judge paid the claim. That made it easy. From then on, the attorney asked each physician for a comment on the patient’s credibility. My client’s win rate with that judge, who was paying about 20%, skyrocketted to almost 80%.

In another recent situation, the attorney found that the conservative judge ruled in favor of the claimant only when ALL lab work was included. In fact, when all lab work was included, the judge paid EVERY case. If labs were missing, however, the judge assumed that the lawyer was hiding evidence and denied the claim regardless of the other evidence.

Don’t try to make sense of this reasoning. Rather, look for patterns that emerge for each judge that your firm is having trouble with and simply give them what they need to rule in favor of your clients. It is just figuring out what it takes to get a judge to pay the claim.

Sometimes, it’s not so cut and dry. Often mere persistence is the best option. Let the judge know you mean business. You might just have to wear the bad judge down. Go into the hearing room and make up your mind that you will not leave until the judge pays the case. If it is a video hearing ask for three hours. If pain is involved, ask the client about the end joint of their little finger, then the middle joint, then the proximal joint, then move to the ring finger. Tears help as you are working through the pain. Bring in the neighbors to explain how the claimant used to cut her lawn. Now when she tries she ends up in bed for three days and the witness has to cook her meals. Punish the bad judge with lay testimony until you obtain a judicial surrender.

One of my favorite things to do with the bad judge is to tell the claimant in the waiting room that the judge will be offended if they don’t shake hands when they are introduced. Then, when you walk into the hearing room say to your client, “Mr. Smith, this is Judge Jones, Judge Jones this is my client, Mr. Smith” and hold in your smile as the client walks up with their arm out to shake hands. If your client did heavy work and now has soft hands comment on it during the hearing and make sure you say, “Your honor, you probably noticed when you shook hands with the claimant how soft his hands have become.”

Writing a Winning Brief in the Era of the Conservative Judge

Most claims are turned down for the identical reasons they were denied previously. Make it harder on the judge to deny a case on the same grounds by specifically addressing that faulty reasoning. Give them a short (two page maximum) memo on your case. List every diagnosis, past relevant work with DOT codes, all restrictions (not just from RFC but also from office records), non exertional restrictions and a heading that says “Problems with the Case”.

Use bullets to list the problems with the previous decision. This should include the reasons the case was denied and any other problems (i.e. Younger individual, no severe impairment, etc.). After each bulleted “problem,” list the evidence in the file to rebut that problem. You have now made it difficult for the judge to deny for the same reasons the case was previously denied.

Next give one paragraph explaining why the case should be paid. Make your brief be brief. Use bullets. Judges won’t read long paragraphs. They do not need the medical re-written for them. Bullets work.

Real World Praise for this Strategy:

“I just wanted to thank you for sending us your brief/OTR template. We have been using your format along with a bullet point summary of selected medical records, instead of the long paragraph format that my father was using before. We are averaging 12 hearings per month cancelled and paid since we implemented your system. A chief judge called and told me this is the easiest memo he has ever read. He appreciates a nice concise simple way to tell him why the cases should be paid. The judges in his office are all talking about our new format. We used to get maybe one case every four months paid without a hearing. This is great. Our hearing rate has gotten back to where it used to be. We are about to begin using your other memo for initial apps and recons.”

“Your OTR format is incredible. I didn’t believe you but my staff is able to write them and cases are actually being paid without hearings being held. Some of our hearings since we started using it are taking 5 minutes and the judges have said they didn’t read my memo until right before the hearing. Some are getting cancelled. The judges have complimented me on the new format. I didn’t believe it could be done but we are almost at our old win rate.”

For questions about this method or for a sample template:

Jim Brown can be reached at Jim@AttorneyConsultant.com.

NEW BOOK AVAILABLE: Marketing for the Contingency Fee Law Firm, By James M. Brown

James M. Brown’s first book is already creating buzz – and more clients and higher profits for contingency fee lawyers around the country. The first ever book specifically written on marketing for the contingency fee law firm presents strategies that are proven to work.

If you want to take on more clients, handle cases more efficiently and enjoy your work more than you do now, this is the book for you. Jim’s book will teach you how to design a marketing strategy that will get you more phone calls and prospective client inquiries, how to organize your office to handle the increased volume, how to retrain your staff, and how to rethink how you manage your own time all so that you can be more effective and less stressed out.

James M. Brown is receiving phone calls daily from lawyers thanking him for the endless succession of great and easy to implement ideas about how to improve their practice! Don’t be left out! Order your book now!


ACI Takes the Backyard Agrarian Pledge, Goes Green.

Backyard Agrarian is a sustainability consulting and education company that encourages businesses and individuals to take the Backyard Agrarian pledge. The pledge looks different depending on who is taking it, but all Backyard Agrarians pledge to implement some positive and meaningful steps towards health and rejuvenation.

Backyard Agrarians recognize that what’s good for us and our families and our communities is also, amazingly, good for the Planet too. View pledges.

Attorney Consultant, Inc. is pleased to announce that we have taken the Backyard Agrarian Pledge:

“I pledge to try to be always conscious of the products I am using in order to make proper choices in protecting the environment. I will also continue to speak up about the causes that are important in protecting our world. I will do it in a respectful way, but will not ignore quietly instances when people are destroying the precious earth we live on. I will add environmental links to my web site if Backyard Agrarian shows me how. I will continue to be politically active in supporting political candidates who pledge to support environmental causes. Whenever possible I will mention the importance of the environment in my speeches. I have and will continue to do my best to leave this world a better place when I leave it than it was when I entered.” ~ Jim (Shaker Hts., OH)


Even the most experienced and successful law firms are sometimes faced with surprising and devastating events. Maybe you have just discovered that an employee has been stealing large sums of money from the firm. Perhaps a client has decided to sue the law firm and has threatened going to the press with an outrageous scandal. Maybe there is a real scandal that threatens the longstanding reputation of the firm that you have built.

As a firm’s managing partner, this might be the first time you have had to deal with a crisis of this magnitude and it is probably consuming your every thought. How will you ever get through this without losing face or worse, losing the company? Plus, you can’t ignore your other client and management responsibilities while managing the crisis.

When you have a major crisis on your hands, you have react quickly and there is no room for error. At times like these, it is well worth it to hire an outside professional – someone who can clearly assess the situation without the fear and emotion that you are no doubt experiencing.

When asked to step in to manage a firm’s crisis, ACI, for example, has found that being an outside party gives us certain abilities to deal with the situation that the people most closely involved just can’t manage at that particular moment. We have assisted firms in managing the resulting media attention, dealt with firing employees, written severence agreements and organized and facilitated post-crisis clean-up.

Whatever crisis your firm is facing, whether it is financial, personell or client-related, you need to quickly create a plan of action and work with the right people to implement it. The crisis will soon be past and you will be back to doing what you do best, representing your clients! What we have seen though, is that you can not ignore the crisis. It can snowball out of control without a professional management strategy

BOOK RELEASE COMING SOON: Marketing for the Contingency Fee Law Firm, by James Brown

If your legal book shelf is in need of a make-over, and most are, it might be time to pre-order ACI’s upcoming, life-changing book!

Attorney Consultant, Inc. is really excited to announce the upcoming releases of our book, Marketing for the Contingency Fee Law Firm. Written by ACI CEO, attorney James M. Brown, this book is riddled with real-life anecdotes, road-blocks and solutions encountered by Jim along the exciting path of his 40-year career representing disabled clients and now, consulting with other contingency fee law firms.

Learn from the nation’s leading consultant for contingency fee law firms how to market yourself and your firm. Jim Brown reveals unbelievable ways for you to market YOUsm – Your Own Uniqueness. You will be amazed when your eyes are opened to the sources and methods to create a marketing plan that will enhance your image to prospective clients, judges, the medical community and politicians that write the laws which determine the future of your practice.

  • Learn how to create a brand that is YOUsm
  • Discover how to use the local media to generate prospects
  • Increase your physician referrals.
  • Get referrals from health-related

Pre-Order your book before May 31, 2012 and save 25% off the cover price.


Expected publication date is July 2012.

PHOTO CREDIT: University of Connecticut School of Law

Contingency Fee Law Firms Are in Danger and What You Can Do About It: Get Your Clients to Vote

Contingency fee practices are in danger. People in Washington and in your State Legislatures want to take away the rights of your clients on injuries, Workers’ Compensation and Social Security Disability. Your practice is essential in protecting the dignity of many deserving people.

The attack on teachers, unions, the environment and the social fabric of our society extends all the way to contingency fee law firms. Contingency fee law firms represent people in their times of need and help their clients navigate the complex system of government programs for the disabled. It is no surprise that these safety nets and the rules regulating this type of practice are also under attack.

The role of contingency fee law firms is essential. When individuals attack you for handling malpractice claims and medical malpractice cases your response should be, “if the State Prosecutors did their jobs, many class action suits would not have to be filed. If physicians turned in other doctors who did not practice properly, there would be less malpractice lawsuits. But they don’t, so the work of protecting and defending people in need is left to the private practice of contingency fee attorneys, who are the last line of defense in protecting the rights of the injured and the disabled.”

We, as a coalition of contingency fee lawyers, do not have the resources to financially compete with the paid lobbyists and corporate donors who work to take away the rights of our clients. We cannot give enough dollars to legislators to convince them to retain the current laws rather than listening to the groups who want to destroy this system.

We do, however, have numbers, and that translates in votes, and that translates into power. Contingency fee law firms should harness the power of their client base to vote for politicians that have a friendlier, more rational perspective with regard to maintaining the programs that our clients so desperately require. Use them!

STEP I: Register Your Clients to Vote

Ask every client and every prospective client if they are registered to vote. If they are not, sign them up. If you sign up new clients over the phone, send them a voter registration application in the mail. In most states you can get the voter registration forms from the Secretary of State. Obtain the forms and then make copies. Ask each client if they need voter registration forms for their spouse or children.

STEP II: Share Knowledge About Candidate Positions

It’s not enough to just register your clients. They look to their attorney for advice. The next step is to ask the candidates their position on tort law, the right to jury trial, Social Security Disability and Workers’ Compensation. Send your clients a letter or include it in your newsletter and inform them of each candidates’ positions on the issues important to your practice and their cases.

Be clear that no one should vote for a candidate on any one position-be it abortion, gun control, taxes or anything else. Their legal matter is an important consideration however, and you are the expert that can best inform them of the candidate that will best protect their rights.

When it comes to judges you have an obligation to your clients, the legal system and to society to make sure the best candidates are elected. Our clients don’t know which candidates to vote for, but you do! I was often asked if I was worried about the consequences if I endorsed a candidate who lost. The truth is I wasn’t. I was protecting the causes I believe in.

At the trial level I want to elect judges who understand the law, respect attorneys as well as the parties involved and move the cases in a judicious manner. A side benefit turned out to be that most races for judge are very close. Judges who won that did not receive my endorsement were always fair to me to show that they deserved it in the next election. Not once has there ever been a negative repercussion.

If the plaintiff’s bar exercised its muscle at the ballot box we would be powerful. The amount of votes we could generate for candidates who support our positions is staggering. Sure, money opens doors when you want to talk to a candidate. Try sending 500 letters from a representative’s constituents when you want to schedule an appointment. That talks too; especially when they receive newsletters from a lot of attorneys in their district or in their state either endorsing them or endorsing their opponent.

We cannot raise enough money to compete with the industries we are challenging. But our cause is just; our clients are deserving and our mission should not be stopped by people more interested in their bottom line than in the amount of people they are maiming and killing. Start doing something about it! Are you willing to step up, speak out and take action to begin defending the rights of your clients politically?

Image Credit: CBS News

Good Business IS Green Business.

It’s hard to write a blog on greening the office because everyone has such a different understanding about what this means. Some people think it’s about calculating and then reducing your carbon footprint. Others think office sustainability means using less paper or switching to recycled printer paper. Still others think office sustainability has to do with getting chair massages in the break room, offering healthier foods in the vending machines, flexible work schedules, improving indoor air quality, installing solar panels or offering tele-commuting options. They’d all be correct–sustainability is, or can be, about all of these things–and more.

Office sustainability is about creating a work culture of respect for others (colleagues and clients) AND the environment. It’s about creating a healthy, non-toxic environment that allows everybody to feel good and perform optimally day-in and day-out.

Business owners often worry that going green will cost them money or make them look unprofessional. Nothing could be further from the truth. A good sustainability strategy will involve a thorough review of where you are wasting money AND wasting resources. The two often go hand in hand. You will create a strategy for reducing paper use (don’t decree it, make sure to obtain buy in from staff) and reduce energy consumption. You will create a strategy for saving money on these unnecessary expenditures. Now that’s just good business.

On the health/happiness/productivity side of things, did you know that more people in the U.S. have heart attacks on Mondays than on any other day of the week? People feel more stressed out on Mondays, they feel less healthy and happy at work and are less productive. What if you allowed people to come into work just one or two hours later on Mondays? What if you created a once-a-week telecommuting opportunity? Your staff would be happier, healthier and it’s been shown, more productive. It doesn’t work for every business, but it’s worth considering. It will save you money on sick days, in lost productivity and your staff will enjoy working for you even more than they already do! Again, good business.

I urge you to take a wide angle approach to office sustainability. Look to really solve problems and to involve the entire staff in the process. Working together we can create healthier more productive office environments, and do our part for the planet in the process.

Planning Ahead: Understanding Your Firm’s Value in Preparation for Unforeseen Death, Disability or Planned Retirement

Your law practice is a valuable asset and is an important component of your financial portfolio, now and for your future. Lawyers should develop a clear understanding about what will happen to this asset when they retire, die suddenly or become disabled. Too often, attorneys face the loss of the financial benefits of their life’s work (their firm) because they have not planned ahead.

Even if you are a sole practitioner, your practice is one of your most valuable assets! It does have value beyond the day to day hours that you put in!

We know one attorney, for example, who became disabled unexpectedly. He struggled to keep the firm going throughout the ordeal, but almost lost it to some untrustworthy associates who attempted to steal the firm’s clients. While in various hospitals trying to recover, the last thing this attorney had the ability to focus on was maintaining oversight of the crumbling firm, yet because there was no emergency plan in place, that is exactly what he had to do.

This disabled attorney did not want to simply close the firm because he understood that significant value would be lost and rebuilding would be untenable. Rather than closing the firm and losing its value, Attorney Consultant Inc. arranged a high-dollar sale of the firm. This allowed the attorney to focus on getting better while feeling secure in knowing that his year’s of work were not lost, and that his future was secure.

The importance of this story is not that everything worked out great for this particular attorney, but rather that it might not have. He had no emergency plan in place and had his personal circumstances been more dire, he may have lost everything. The lesson is that planning ahead can save you a lot of trouble when disaster strikes–and a lot of money.

With regard to planned retirement, attorneys who think they will just close their doors one day are giving away an asset they have spent a career building. For example, prior to retirement, an attorney should learn how to sell the cases on your shelf, your phone number, your web site, your equipment, the referrals that may be coming to you in the future, the goodwill you have garnered throughout your career and yes, even your name. Your name will bring in cases for years after your retire. Find the right person to pay your for all of these assets!

That door you are closing is made of gold. You can’t keep your firm going forever, but with clear planning, you can maintain some excellent benefits from it. Don’t let someone else capitalize for free on all that you have created.


Your firm is an asset. What happens to it if you die tomorrow? I have seen it happen. A competitor will put ads in the newspaper announcing your death and urging clients to retain their firm instead? That has happened elsewhere.

Have the parameters in place for the succession of your firm. Your firm is one of your largest assets. Protect it for your family. I helped one attorney who suddenly became disabled when an associate decided to leave with about half of the clients. That could be you. Or you can plan now to keep your firm intact. The asset can be protected and you, if disabled, or your family if you are dead, will receive the proper value for your firm.

Don’t think you are immortal. Now is the time to plan for the unlikely. If it does happen, and you haven’t prepared, it is too late. What can you get for your firm? Oftentimes, nothing if you didn’t plan ahead. A substantial amount, depending upon your earnings, if you did. Call ACI to discuss the best way to protect your life’s investment.


If a pipe bursts and your office is flooded, everything is ruined, who is in charge? Who calls the insurance company? Who is responsible for finding temporary space? Who rearranges appointments? Who supervises all that must be done? Who reassures clients that their files are not lost?

As lawyers, our job is to see into the future and to assist our clients in setting up their affairs. Even though we take great care of clients, we often forget to do the same for ourselves.

We forget that crisis can strike us too. My advice: put a plan in place now! Then make sure every employee knows what it is. Give it to every new employee.

If there is a shooting in the waiting room, who is the firm spokesperson to the media. Does everyone else in the firm know to have no comment?

What if a discrimination complaint is filed against the firm? Who is the spokesperson? What will be said? Does everyone else know not to say anything to anyone anywhere?

The crisis is unusual but can destroy a firm when it happens. The wrong statement or no statement can be devastating. A lie or partial truth can ruin years of hard work building a reputation.

Be prepared. Know who you will have to speak to and how to speak to them. A law firm has many publics in a crisis and they all may have to be approached differently. Publics, they are your clients, the judges, attorneys who are your adversaries, attorneys who refer cases to you, physicians treating your clients, social workers’ assisting your clients and more. Each of these is a public and, depending upon the crisis, each may have to be contacted differently.

Don’t take a potential crisis lightly.

ACI has helped firms, often mid-crisis. What we have learned is that advance planning goes a long way, but even if you did not have a crisis management plan in place and crisis strikes, there are still many things you or a consultant can do to get through the crisis intact. You need to determine the severity of the crisis, how to approach it, and whether outside sources may be needed to help alleviate potential problems. If managed properly, you can get through a crisis while protecting your clients, your firm and your reputation.