THE PLURAL OF ANECDOTE IS NOT DATA:1 ... - UDC Law Review

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\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 24 29-JAN-13 10:2640 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWtwo percent) wished they had a better understanding of the law. One participantwrote, “I just didn’t understand the process at all and I feel when I went beforethe judge I was not clear [about] everything. I think they should have someone toexplain a little better for the first time unemployment clients.” 109This picture of unrepresented and unprepared parties is counterbalanced bythe efforts of the ALJs presiding over the hearings to make sure both partiesunderstood instructions during hearings. This may be a significant factor in whyeighty-five percent of the participants believed they were able to tell their side ofthe story and why seventy-six percent felt the hearing met their expectations.TABLE 6. THE HEARING NOTICE. All numbers in the table representpercentages, and all percentages are rounded.Yes NoThe instructions in the hearing notice were clear. 86 11The hearing notice provided enough information to proceed without 44 43an attorney.The survey also asked about the hearing notice. Some of the ALJs who metwith the faculty members of the research team expressed concerns about whetherboth parties in the hearing were reading the notice carefully. There is some indicationthat the hearing notice was read prior to the hearing, with eighty-six percentreporting that they found the instructions clear. However, the legal andprocedural information contained in the hearing notice is not a substitute forlegal assistance. Participants were split down the middle when asked aboutwhether the notice provided enough information to proceed without an attorney.TABLE 7. WILLING TO POSTPONE HEARING TO OBTAIN LEGAL ASSISTANCE.All numbers in the table represent percentages, and all percentagesare rounded.Yes NoWould have agreed to postpone hearing to be helped by a lawyer. 86 11The majority of participants would agree to postpone their hearing in order tobe helped by a lawyer. But continuances have consequences. For employees whohave been denied benefits, a continuance may translate into a delay in receivingbenefits. For employers, a continuance may mean devoting more time to opposinga claim, with the accompanying cost and stress, and in cases where employeesare receiving benefits, the difficulty of recouping benefits already paid. For OAH,continuances complicate the scheduling of hearings and may make it difficult toprovide timely benefits when warranted to individuals who have lost their means109 Completed UI Survey (on file with authors).
\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 25 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 41of support, and to adhere to strict federal timelines for the resolution of UIclaims. 110 The Department of Labor requires that sixty percent of cases be resolvedwithin thirty days of filing an appeal, eighty percent be resolved withinforty-five days, and ninety-five percent within ninety days. 111 There is considerablepressure to meet these deadlines and “[f]ailure to comply weakens a state’sability to provide [unemployment compensation], increases tax costs for thestate’s employers, and places political pressure upon the state’s leaders.” 112TABLE 8. LEVELS OF PREPARATION AMONG THOSE WHO AGREE ORSTRONGLY AGREE THEY WOULD HAVE USED A FREE LAWYER. Allnumbers in the table represent percentages, and allpercentages are rounded.Agree or Strongly AgreeThought that they understood the purpose of the hearing 60Thought that they knew enough about how the hearing will 32be conductedPrepared questions for cross-examination 11Used documents during the hearing 29Thought that they understood the instructions 57Wished they had been better prepared 54Wished they understood the law better 54Thought that an attorney would have been helpful 66The strongest evidence in support of the need for more legal assistance comeswhen one correlates key indicators of the levels of preparation with who agreedor strongly agreed they would have used the services of a lawyer. Again, themajority of this group thought they understood the general purpose of the hearing,but only thirty-two percent thought they knew enough about how the hearingwould be conducted. Just eleven percent had prepared questions for cross-examination,and fewer than one third used documents during their hearing to supporttheir case. Although they thought they understood the hearing instructions, halfwished to have been better prepared or to have understood the law better. Themajority of this group also thought attorney representation would have beenhelpful.110 OAH has made progress in meeting federal standards by changing the way cases areprocessed, increasing the number of hearings scheduled, assigning additional ALJs to work part-timeon UI appeals, and assigning ALJs and legal assistants to work in teams. Letter from Mary OatesWalker, supra note 49, at 8.111 Letter from Mary Oates Walker, supra note 49, at 8. R112 Richard W. Fanning, Jr., The Federal-State Partnership of Unemployment Compensation, 29U. MICH. J.L. REFORM 475, 477 (1996).
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