24th Annual Lawyers and Court Personnel Food & Winter Clothing Drive

Attorneys, Judges, court clerks and other officers of the court will be donating food and winter clothing to the less fortunate. Of course, you don't have to be an attorney to donate! The public is also free to participate in this even to help others. I encourage the people of Utah to either volunteer or drop off needed items at the locations listed below:

Giving A Presentation On Living Wills In St. George

I will be giving a presentation regarding wills in at the Deaf Center in St. George, Utah on October 24, 2013. See the flyer below for more information. 

Can Deaf People Serve On A Jury?

One of the most common and popular misconceptions that exists in America and around the world is that Deaf people cannot serve on a jury. In America, Deaf people have both federal and state rights to serve on a jury. Internationally, Deaf people want to serve on a jury but current laws prevent them from doing so. 

Deaf People Can Serve On A Jury In America

In America, Deaf people do have a right to be on a jury and have been serving on juries since the Americans With Disabilities Act (ADA) was first enacted by Congress and signed into law by President George H.W. Bush on July 26, 1990. 

According to one statistic, there are 36 million people in this country with some degree of hearing loss. That means that there is a high probability that they will be involved in the court system either as a witness, a jury member or a litigant. Some Deaf and Hard of Hearing individuals will work as attorneys in the court room.

Under Title II of the ADA, courts are not allowed to exclude qualified individuals by reason of their disability from "the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. That means, under federal law, a court cannot exclude a Deaf individual from serving on the jury because they are Deaf. Additionally, the ADA requires courts to take the "appropriate steps" to provide communication and/or language access to Deaf and Hard of Hearing individuals. 28 C.F.R. § 35.160(a)(1). The ADA outlines what appropriate steps a court may take to ensure effective communications by requiring courts to “furnish appropriate auxiliary aids and services where necessary” to provide “applicants” who are “qualified individuals with disabilities” an “equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1). Title II of the ADA explains that “auxiliary aids and services” includes Sign Language interpreters. The ADA's describes Sign Language Interpreters as “Qualified interpreters on-site.” 28 C.F.R. § 35.104(1). A qualified on site interpreter is defined as someone who “is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.” 28 C.F.R. § 35.160(b)(2)

In plain English, under Title II of the ADA, a Deaf person cannot be excluded from jury duty because of simply because they are Deaf. Courts are required to ensure that Deaf people have an equal opportunity to serve on a jury and that Deaf people are given that opportunity by providing a qualified sign language interpreter for the potential Deaf juror. 

Deaf people who wish to serve on a jury can make a reasonable accommodation requiest to have the court provide auxiliary aides such as sign language interpreter, cued speech interpreter, or Communication Access Real-time Translation (CART). These aren't the only auxiliary aids a Deaf person could ask for. There are others. However, these auxiliary aids help Deaf and Hard of Hearing individuals to perform their duties as members of the jury. Its also important to know that Federal law also makes these auxiliary aids to Deaf and Hard of Hearing witnesses, litigants, attorneys or Deaf people who wish to come and observe a trial.

Additionally, Certified Deaf Interpreters (CDIs) could also assist a potential jury member based on the statutory language of Title II of the ADA. According to The Registry of Interpreters for the Deaf (RID),  a “Certified Deaf Interpreter (CDI) is an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” Additionally, many states statues allow for CDIs to work in court by describing them as “intermediary interpreter” or “relay interpreter" or "Certified Deaf Interpreter."

In addition to federal law, many states, such as Texas, Florida and California, have passed laws allowing for Deaf individuals to sit on a jury. Moreover, many courts, such as the 9th Circuit Court of Appeals, have rules or handbooks that allows Deaf people to serve on a jury and provide instructions for what to do in the event a Deaf person does serve on a jury. Many organizations such as the National Consortium of Interpreter Education Center (NCIEC) exist to assist Judges, lawyers and other employees of the court in following the proper steps in providing an Sign Language Interpreter.

Deaf people have done well in serving on a jury. Cantrece Simmons was praised for her service as the first Deaf individual to serve on a jury in the City of Baltimore's court system.  Debbe Hagner was one of six jurors to serve on a jury in the Pasco County Circuit Cour on a matter involving an automobile accident. Marcia Finisdore was the first Deaf individual to sit on a jury in Delaware County located in Pennsylvania. Keith Davis was deaf individual who served as juror on a murder case in Atlanta. Karen Smith was also deaf individual who served as juror on a criminal case in Rochester, Minnesota. For a personal perspective on what it is like to be a deaf juror in a civil and criminal case, see Sheila Mentkowski’s blog post.

In one highly unusual case, the Public Defender's office in Riverside, California asked to allow for all-Deaf jury to sit on a case where the Deaf Defendant was accused of raping a Deaf victim. A majority of the witnesses are Deaf and communicate in American Sign Language. The Judge denied the Defense's request.

Despite the protections provided by Federal and state laws, Deaf people in America sometimes face discrimination at the jury box because of their Deafness. For example, David Branfield was dismissed from serving on a jury in Syracuse, New York because of his hearing loss. 

In Ohio, the Defense in a criminal trial tried to remove a Deaf juror, Linda Leow-Johannsen, from serving on the jury because of her Deafness. What made the Ohio case more appalling was that the Defense didn't dismiss her by using one of their four peremptory challenges but asked the Judge to dismiss her after they had gone through all of their peremptory challenges because of her hearing loss. Judge Richard Markus denied the Defense's request.

Some legislators in the North Carolina House of Representatives objected to the idea of allowing Deaf and Hard of Hearing individuals from serving on a jury. Some of the legislator's comments and reasons for why a Deaf person shouldn't serve on a jury were jaw dropping.

While Deaf people in America can serve on a jury, it is still not easy for Deaf people to do so. It is clear that many unnecessary obstacles exist in in our country that need to be removed.

An International Look at Deaf People's Right to Serve on A Jury

In other countries around the world, Deaf people are not allowed to serve on a jury because of the fact that they are Deaf. Another reason why Deaf people are not allowed to sit on a jury is because of misconceptions many people have about Deaf people. In some countries, there are cultural reasons for why a Deaf people cannot serve on a jury. Finally, some countries do not have the resources to provide Deaf people with Sign Language interpreters or other services that might allow them to serve on a jury.

In England, Deaf people struggle with being allowed to sit on a jury. For example, Emma Ferguson-Coleman  was a Deaf woman who received her jury service summons and informed the court that she needed a British Sign Language (BSL). The Court refused to allow her to sit on the jury because of her Deafness and that her Deafness would violate the court's procedural rule that jurors are allowed to be present in the jury room (an interpreter would constitute a ’13th person’).

Deaf people in Ireland also struggle for the right to sit on a jury. Damien Owens, was denied to sit on a jury because the law in Ireland does not allow a 13th person such as a Irish Sign Language (ISL) interpreter to be present in a jury room during its confidential deliberations. 

In another case, Joan Clarke, who is Deaf, challenged the Galway County Registrar's decision to exclude her from jury service because she is Deaf and won. Judge Daniel O'Keeffe in the High Court ruled that the Registrar made the wrong decision to exclude her. He also found that there could be no blanket ban on deaf people serving on juries. Unfortunately, the Judge also ruled that sign language interpreters could not be allowed into a jury room (presumably because an Irish Sign Language (ISL) interpreter would constitute a 13th person) which means that an Irish Deaf person who relies on an ISL interpreter) could be excluded from the jury. 

However, in a separate case in Ireland, Judge Paul Carney, allowed Senan Dunne, who is Deaf, to sit on the jury. He found a way around the "13th person rule" by requring the ISL interpreter to take an oath of confidentiality. Although Mr. Dunne had to stand down from the jury, he was allowed to remain on the jury panel.

In Australia, Deaf people also desire to have the right to sit on a jury. Gaye Lyons, a Deaf woman from Queensland was excluded from serving on a jury because having an Australian Sign Language (Auslan) interpreter would violate the "13th person rule. " The NSW Law Reform Commission, which is an independent statutory body constituted under the Law Reform Commission Act 1967 (NSW), commissioned a study to look at whether or not Deaf people can serve on a jury.

Solutions: Ideas For Reform In America and Abroad

There are wide range of options and solutions that can open the doors to allowing Deaf people to serve on a jury.

The best way to quickly open the door to allowing Deaf people to serve on juries is through judicial reform as well as updating laws and statues. Elected officials and members of the judicial system both in America and other countries can easily make the necessary legal changes. For example, in many nations that were formally a part of the British empire could abolish the "13th person rule" if additional rules and regulations for Sign Interpreters were implemented. (See below).

In doing research about Deaf people's right to sit on a jury in other countries outside of the United States, one of the common concerns that comes up on the issue of Deaf people serving on a jury in another country is the ethical duties of the Sign Interpreters. In America, ASL interpreters (as well as CDIs) abide by a code of ethics which includes the duty to keep information confidential. Other nations would do well to establish rules of conduct and ethics for interpreters working in the court room. 

Other rules, regulations, polices and procedures that are found in America in can serve as a model for other nations who have interpreters working in court. For example, an interpreter cannot disclose what she knows unless they are required to either by law or by court decree. Moreover, having a qualified ASL interpreter who is interpreting for a Deaf client who is meeting with their attorney does not destroy the attorney client confidentiality. Additionally, in many states, interpreters may have to undergo further testing and training to be come certified to interpret in court and will have additional obligations to abide by. 

Another area of improvement is improving the training and education of interpreters. Also, requiring interpreters to meet additional standards and undergo further training and education that would help them to be specialized in courtroom interpreting. 

Another solution for improving Deaf people's access to the courts is to invest in technology. There are some amazing developments that will help Deaf people and improve communications. It will help keep court costs down and improve access for Deaf people and allow them to sit on a jury.

The U.S. can serve as a model for other countries who wish to provide the resources, infrastructure, education, funding and statutory mechanisms to allow Deaf people to serve on a jury. Allowing Deaf people will strengthen the judicial system and can still protect the rights of individuals who are involved in the court system. Of course, America isn't perfect. We have a long way to go in penal reform, improving interactions with between police and law enforcement and providing greater access to the judicial system for Deaf people.

Conclusion

Deaf people should be able to serve on a jury.  With modern technology and capable and well trained Sign Language interpreters, they can successfully uphold their duties as members of the jury. Justice is not justice if members of the community are excluded from the judicial system merely because of their disability.

Legal Requirements of Representing Deaf Clients

With approximately 220,000 deaf people residing in the State of Utah, it is likely that at some point a deaf person may seek your legal services.  

Being the only practicing deaf attorney in Utah that I am aware of, I would like to share some suggestions on how to best represent deaf clients and how to meet your ethical and legal obligations when representing them.

It begins by understanding that the Americans With Disability Act (“ADA”) governs you and your firm’s representation of anyone with a disability, including deaf and hard of hearing individuals. A person becomes a protected class under the law when there is “a physical or mental impairment that substantially limits a major life activity” such as walking, seeing, hearing, breathing, learning, reading, concentrating, thinking, communicating, and working. 28 C.F.R. § 36.104.

There are five sections to the ADA.  Title I covers employment. Title II applies to public entities such as state and local governments. Title III applies to places of public accommodations such as football stadiums, businesses and restaurants. Title IV covers Telecommunications. And Title V deals with miscellaneous items.  

Attorneys working in a small law firm frequently assume that there must be minimum number of employees in the firm in order to be subject to the ADA.  The law, however, is much more inclusive.  Although Title I of the ADA contains language covering businesses of a certain size, Title III of the ADA does not limit the law’s coverage to an entity of any particular size. As a result, whether you are in private practice as a sole practitioner, or whether you are part of a large, high-profile law firm, both are considered as places of “public accommodation” and therefore both are forbidden from discriminating against people with disabilities, including clients who are deaf or hard of hearing. 42 U.S.C. § 12182. Even if your law firm is a non-profit organization, you are not exempt from the ADA.

The next step is to understanding the ADA is to know that one of the major goals of the ADA is to ensure that “effective communication” takes place between an attorney and any client with disabilities. Law firms of any size are deemed to be “Public Accommodations,” and as such, they are required to provide “auxiliary aids and services” to qualified individuals with a disability in order to satisfy the law’s requirement to provide effective communication. “Auxiliary aids and services” are modifications of existing services, benefits, equipment or devices so as to provide effective communication to individuals with disabilities.

Title III of the ADA requires lawyers to “make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless they can demonstrate that making the modifications would fundamentally alter the nature of the service or facility.” 28 C.F.R.§ 36.302.

Under the ADA, auxiliary aids and services may include “qualified interpreters, note-takers, computer-aided transcription services (“CART”), written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (“TDD’s”), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” [See 28 C.F.R. § 36.303 (b)(1).] Attorneys sometimes operate under the misconception that the list provided above under Title III of the ADA means that the lawyer can selectively choose the aid or service the attorney will provide. That is not true.

Please understand that even though Title III of the ADA provides that “the ultimate decision as to what measures to take rests with the public accommodation” in order to obtain effective communication with their client they “should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication.” 28 C.F.R. § 36.301(c).

Consulting with the client about the specific auxiliary aid and services he needs is essential in meeting the ADA’s goal of achieving effective communication, and your goal of providing the best representation possible for your disabled client. Primarily because the “type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” 28 C.F.R. § 36.303(c)(1)(ii).This requires that you learn from the client the type of aid or service that works for them.

Additionally, in order for effective communication to take place, “auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” Id. 

Often times, a deaf or hard of hearing client will request an American Sign Language (ASL) interpreter. Other deaf or hard of hearing individuals may request a Cued speech interpreter. These are the most common requests that you can expect to receive when representing a client with a hearing loss.  Having a qualified interpreter will not only help the client, but will be of invaluable benefit to you as well.

One thing you should know about deaf and hard of hearing individuals is that they do not all have the same communication needs. Some can communicate in English, while others use ASL, and yet others communicate through Cued Speech – all of which are different from each other. That is why you must learn from the client the type of interpreter they will need.  Don’t assume that deaf clients need an ASL interpreter.  They may in fact need a Cued speech interpreter, or no interpreter at all.  If the client doesn’t tell you what his communication needs are, take the initiative and have an open dialogue about the best method to communicate during the initial interview. Periodically check if the accommodations are working for the client.

Proper communication is absolutely essential to effectively represent deaf and hard of hearing clients. Refusing to hire a sign language interpreter may constitute discrimination under the ADA.  Discrimination occurs when there is “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities” unless the place of public accommodation “can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”  42 U.S.C. § 12182(b)(2)(A)(ii).

Other examples of potential acts of discrimination under the ADA include: instances where the attorney agrees to provide an interpreter but fails to schedule one, or where an attorney asks a deaf or hard of hearing client to bring a family member to interpret for them.

Under Title III of the ADA, you cannot simply use someone who claims to know how to interpret for a deaf or hard of hearing person, because having the ability to sign does not mean the individual has the ability to interpret. Attorneys are required to provide qualified interpreters to their Deaf clients and patients. A qualified interpreter means an “interpreter who, via a video remote interpreting (“VRI”) service through on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.” 28 C.F.R. § 36.104.

Attempting to use a client’s family member, friend or neighbor who claims to know ASL leads to a minefield of problems for you and your client. They may be too emotionally or financially involved to provide a fair and accurate interpretation of what your client has said to you. Furthermore, an unqualified interpreter will not have to abide by ethical constraints required of a qualified interpreter. Additionally, using an unqualified interpreter may destroy the privilege of confidential communication. Finally, not using a qualified interpreter may expose you or the unqualified interpreter to liability.

Using a qualified interpreter is the only way to avoid these and other unforeseen problems. Doing so will not disrupt attorney-client privilege.  Additionally certified interpreters are bound by a code of ethics that require the interpreter to keep the attorney client communication confidential, and that they be neutral in any matter that they are

The best way to find a qualified interpreter is to contact an interpreting agency who can assist you in finding the right interpreter for you and your client. It is important to mention that you will not always need to hire an interpreter for every interaction or communication with a deaf client. Hiring an American Sign Language interpreter applies for both potential clients as well as current clients. If you are unsure as to the need for an interpreter, ask yourself if the information you need to share with your client needs to be done in person, face to face, or whether it can be done via e-mail, fax, or letter. If you need to share information face to face, then you should hire an interpreter.

When you meet with your deaf or hard of hearing client and an interpreter is present, you should look at and speak directly to your deaf client, not the interpreter, even though the deaf client will be watching the interpreter. When your deaf client speaks to you, look at your deaf client even though your client is signing and listening to the interpreter.  Remember, the interpreter is only facilitating communication between you and your deaf client.  You are not communicating with the interpreter.

If a deaf person is nodding their head during a conversation, it could mean that they are acknowledging that they understand what is being said, or it could mean it is an affirmative agreement or a “yes” response.  Please make sure you clarify why they are nodding their head.

Sometimes attorneys find that when they make a simple statement, such as “I don’t believe the officer had probable cause to search your car,” the interpreter will take additional time in interpreting to elaborate the meaning of certain legal words or phrases to help the client understand what you have said. Often times, legal vocabulary cannot be easily interpreted into ASL. 

In some cases, especially in criminal matters, you may have to hire a Certified Deaf Interpreter (“CDI”.)  The Registry of Interpreters for the Deaf (“RID”) is a “national membership organization representing the professionals who facilitate communication between people who are deaf or hard of hearing and people who hear.” ("About RID: Overview." Registry of Interpreters for the Deaf, Inc. Ed., 2012. Web. 25 June 2012. <http://www.rid.org/aboutRID/overview/index.cfm>.)

According to the RID, a “Certified Deaf Interpreter (“CDI”) is an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” (Professional Standards Committee. “Use Of A Certified Deaf Interpreter.” Registry of  Interpreters for the Deaf . Registry of Interpreters for the Deaf, Inc, Aug. 1997. Web. 20 June 2012. <http://www.rid.org/UserFiles/File/pdfs/120.pdf>.)

RID explains that CDI’s get “excellent general communication skills and general interpreter training, [and that] the CDI may also have specialized training and/or experience in use of gesture, mime, props, drawings and other tools to enhance communication. The CDI has an extensive knowledge and understanding of deafness, the deaf community, and/or deaf culture which combined with excellent communication skills, can bring added expertise into booth routine and uniquely difficult interpreting situations.” (Id.)   They are also attuned to the finer nuances of ASL and non-verbal communication that a hearing interpreter might not have.

A common concern that attorneys have is the cost of hiring a sign language interpreter. The cost shouldn’t be a significant concern for a number of reasons.  First, you won’t need an interpreter all of the time when communicating with your client.  Second, interpreter rates are typically not excessive.  And lastly, it is part of the cost of doing business and providing valuable services to an often under-represented group. In any event, attorneys are forbidden under the ADA from charging the client for the cost of using the auxiliary aid or other services. (See 28 C.F.R. §36.301.)  This includes potential clients as well as current clients. The good news is that although you cannot charge your clients for the interpreter services, the ADA does provide tax incentives to encourage compliance. (See 26 U.S.C. §44.)

When you are not having a face to face meeting with dear or hard of hearing clients, there are inexpensive and free methods of communication that you can use. In fact, you may use most of them already, such as e-mail, fax, or an Internet-based chat program.

If you or you client want to communicate by phone, there are other devices and methods that are typically free and easy to use. For example, deaf and hard of hearing individuals use video phones to sign to other deaf and hard of hearing individuals.  They use a video relay service when talking with hearing individuals, where the deaf person signs to the video relay operator, who will then verbally interpret to you what your deaf client has said.  You can use this video relay interpreter service by dialing a toll-free number and giving the interpreter the deaf person’s video phone number.

Despite the detailed descriptions provided above, it is not difficult to represent deaf and hard of hearing individuals.  It all boils down to asking them how you can best facilitate your communications with each another.  

** This blog post originally appeared as an article the March/April 2013 Utah Bar Journal titled "Legal Requirements for Representing Clients With Disabilities." I am republishing my article on this blog as part of my desire to help attorneys across the United States find the best ways to represent their clients who are Deaf or Hard of Hearing.