As disability attorneys, we have all witnessed the difficulties faced by our clients. Some clients have limited education and a poor understanding of the world in which we live. They are often rightfully angry about the hand they were dealt in life. While some people can rise above their situation and lead successful, productive lives, others cannot do so without assistance. It seems outrageous that a person with disabilities should have to endure further difficulties in the hands of an unfair judge, but it is here that claimants benefit most from our representation.
While the Administration aims to ensure a fair process, in practice we may occasionally encounter judges who act inappropriately. It is well established that an administrative law judge is required to conduct the hearing in a non-adversarial manner and treat everyone with dignity and respect. This does not mean that they need to approve every claim, but if you feel anyone is being mistreated at a hearing, I offer five tips to handle apparent misconduct by a judge.
- Remain calm. While many state and federal courts condone “zealous advocacy,” an emotional cry of outrage will often escalate the matter into a more volatile situation.
- Show empathy. Keep in mind that everyone has bad days, even people in positions of power. Simple recognition of the problem could quell a judge’s frustrations and subtly offer an opportunity for them to correct the apparent bias.
- Keep records. Remember that the hearing is being recorded and is subject to review. If you feel the judge has engaged in misconduct, state so on the record or in a post-hearing memorandum to preserve an argument on appeal.
- Be fair. While we may present facts in a light most favorable to the claim, as attorneys we also have a duty to be honest and uphold the legal process. Calling foul when it is unwarranted undermines the integrity of the legal profession.
- Seek action. If, after giving the matter further consideration, the judge continues to exhibit unfairness, prejudice, bias, misconduct, or discrimination in violation of SSR 13-1p, you may file a complaint with a higher authority, such as the Appeals Council or Office of the Inspector General. Administrative pressure from above and below can result in eventual correction of a judge who repeatedly misbehaves.