Court Access for Individuals with Disabilities

Court Access for Individuals with Disabilities aetrahan Fri, 02/24/2023 - 09:29

Melanie Bray is the Assistant Director of Legal Services at Disability Rights Louisiana, a nonprofit law firm and the Protection and Advocacy (P&A) agency for the state of Louisiana serving individuals with disabilities throughout the state. She currently works on a variety of cases including Medicaid eligibility and associated services, waiver eligibility and denials, as well as generally protecting the civil and human rights of individuals with disabilities. A number of those cases include advocating for autonomy by challenging interdictions or by advocating for a less restrictive option, such as supported decision making (“SDM”). She was also involved with the development of the Dustin Gary Act, the SDM legislation that passed in August 2020, as well as subsequent trainings and webinars on SDM. She is also working on a few major class action cases, including one pertaining to the treatment of prisoners with mental illness. She has successfully represented people with disabilities individually and in class actions in administrative hearings and state and federal court. She also trains attorneys, advocates, social workers, individuals, and parents on disability-rights legal issues. She serves on the Louisiana State Bar Association’s Legal Services for Persons with Disabilities Committee.

She is originally from New York State and came to New Orleans in 2013. Prior to her move to New Orleans, she graduated from Columbia College with a bachelor’s degree in psychology and criminal justice. After that, she earned her master’s degree in criminal justice securities and administrations from University of Phoenix. She graduated from Loyola University College of Law New Orleans in 2016 and was admitted to the Louisiana Bar the same year.

Material in this chapter is current as of February 18, 2023.

1 Introduction

1 Introduction aetrahan Fri, 02/24/2023 - 09:30

Individuals with disabilities have the same right of access to the courts as individuals without disabilities. It is our job as attorneys to identify barriers to access and to remove or mitigate them for our clients. The failure to provide an accommodation may be a violation of the law or may be a violation of due process. This chapter will explore the need for accommodations, the statutory frameworks that require them, common types of accommodations, and techniques for identifying, requesting, and obtaining the correct accommodations for a particular client’s disability.

Setting aside the legal requirement that courts provide accommodations, we have a moral and ethical obligation to ensure that clients receive the accommodations they need. Advocating for your client to receive a service or device needed to meaningfully participate in court proceedings acknowledges that client’s humanity as well as the right to be part of the proceeding. An individual who has a disability is not “less than” and should not be treated as such. We should push for inclusivity and equality across all facets of our legal practices.

While the ADA may require reasonable accommodations in a variety of contexts, this chapter focuses only on access to the courts. Other chapters of this manual discuss how the ADA is applied in employment, housing, and education.1  The focus of this chapter is representation of clients with disabilities, ensuring their meaningful participation in litigation, the process for requesting reasonable accommodations, and the more commonly encountered accommodations.

  • 1On housing, see Section 13.5.2 of this manual's chapter on Landlord-Tenant Law. On employment, see Section 7.2 of the chapter on Employment Law. On education, see Section 2 of the chapter on the Law of Special Education and School Discipline.

2 Disabilities

2 Disabilities aetrahan Fri, 02/24/2023 - 09:31

2.1 Prevalence

2.1 Prevalence aetrahan Fri, 02/24/2023 - 09:31

According to the Centers for Disease Control, 61 million Americans have a disability.1  That means 26% of people in the United States—1 in 4—have some type of disability. In Louisiana, approximately 1,122,487 people have a disability, which is equal to 33% or 1 in 3 adults.2  15% of Louisiana adults have a mobility disability, 16% a cognitive disability, 8% a hearing impairment, and 8% a vision impairment. Everyone has the possibility of experiencing disability, even if only temporarily, at some point during their lifetime. That likelihood increases as we age. These statistics show that the likelihood of a client needing an accommodation is relatively high. As attorneys, we have an obligation to recognize our client’s varied needs and understand how to address them.

2.2 Definition

2.2 Definition aetrahan Fri, 02/24/2023 - 09:32

A disability is any physical or mental impairment that substantially limits one or more major life activities for an individual.1  The Americans with Disabilities Act (ADA) also defines disability as a person who has a history or record of such impairment or a person who is perceived by others as having such an impairment.2  The ADA’s broad definition of disability allows a broad application of its protections. A major life activity is a function that is important to most people’s daily lives, such as breathing, walking, talking, hearing, seeing, sleeping, eating, caring for oneself, performing manual tasks, and working.3

  • 142 U.S.C § 12102(1).
  • 2Id.
  • 342 U.S.C § 12102(2).

2.3 Appropriate Language

2.3 Appropriate Language aetrahan Fri, 02/24/2023 - 09:35

For people who may be unfamiliar with disability-appropriate language, it’s important to know how to talk about disability to avoid language that may be hurtful or offensive. The number one point to remember is to use people-first language. That means you refer to the person before the disability. Instead of saying “a disabled person,” say “a person with a disability.” By making clear that the individual is a person, not a disability, you recognize the humanity of an individual with a disability. It is also important to remember how offensive it is to refer to a group of humans as “the” anything. For instance, avoid using phrases such as “the disabled” or “the impaired” because doing so describes a group of human beings as a thing. People are not things.

The law includes antiquated terms which are no longer socially acceptable or appropriate, such as “retarded”, a term that the medical community no longer uses for diagnosis. However, older medical records and caselaw include this term. As attorneys and advocates, we should be mindful of the words we use and the impact the use of some words may have. Even if we encounter records or caselaw using this term, we should replace it with “developmental disability” or “intellectual disability/impairment” or the actual diagnosis that the person has. Similarly, the term “handicapped” is no longer the appropriate terminology to use. While it should never be used to describe a person, it is still a commonly used term when describing a thing, such as a parking space or a bathroom. Nevertheless, the more appropriate term is “accessible”. We can choose not to perpetuate the use of terms that are outdated, offensive, and no longer provide meaningful information about the individual.

While there are some terms that are on the “no-no” list, and the general rule is to use the people-first language, the bottom line is to always look to the individual with the disability and how that individual prefers to be referenced. For example, there is a difference between capitalizing “Deaf” and using the lowercase “deaf”. For that community, the lowercase “deaf” is used when referring to the audiological condition of not hearing, and the uppercase “Deaf” is used when referring to a particular group of deaf people who share a language—American Sign Language (ASL)—and a culture. While it is not necessary to know every nuance of each individual's or community’s preferred terminology, it is necessary to recognize what you don’t know and to look to the individual for guidance. It is always acceptable to ask the individual how they prefer to refer to their disability and what language they prefer to use.

2.4 Accommodations

2.4 Accommodations aetrahan Fri, 02/24/2023 - 09:36

An accommodation is an alternative to the default mode of doing something that reduces or eliminates barriers that impede the ability to a person with a disability to access a public space or service on the same terms as a person without a disability. An accommodation thus “levels the playing field” for individuals with disabilities.

From a human perspective, we do not want to exclude people. From a legal perspective, the ADA prohibits discrimination or exclusion on the basis of disability, while in the context of court or administrative proceedings, everyone has a constitutional right to due process. The failure to provide an accommodation so that an individual is able to meaningful participate is tantamount to a violation of due process.

3 Working with Clients with Disabilities

3 Working with Clients with Disabilities aetrahan Fri, 02/24/2023 - 09:42

3.1 The Attorney’s Role

3.1 The Attorney’s Role aetrahan Fri, 02/24/2023 - 09:42

It is important to remember that as attorneys, we wear many different hats. Sometimes we wear all the hats, stacked on top of each other, all at the same time. We need to remember all the hats we have and the roles we fill for our clients. First and foremost, we are advocates for the entire human standing before us requesting assistance. As much as attorneys try to compartmentalize their role as only to handle the “law stuff”, we represent humans who have complex needs. We see clients during some of the most challenging times of their lives, whether it is a divorce, an accident, unlawful discrimination, or some other serious dispute. It is unrealistic to think we are not serving as social worker, friend, and advocate as well as attorney.

This becomes even more important when working with individuals with disabilities. It can be easy to gloss over an individual’s unique needs in favor of resolving the matter quickly to get it off the case list to move on to the next 5 cases. Doing so risks alienating your client or depriving your client of meaningful participation in the process. We should be taking direction from our clients; if we do not ensure that our clients are meaningfully participating, we run the risk of making decisions for them. We need to break out of the mindset that we are only one thing performing only one function and expand our representation to the whole human.

3.2 Individual Client Needs

3.2 Individual Client Needs aetrahan Fri, 02/24/2023 - 09:43

In advocating for our clients, it is important to recognize that disabilities may manifest differently in different individuals and call for varied accommodations, even for the same disability. A disability may be open and obvious or something that you cannot see or identify as easily, such as a mental illness or a learning impairment. The accommodation that the individual may need should be conveyed by the individual, and it is important for the lawyer to listen to what the client may need.

For instance, a client with a visual disability may need paperwork provided in braille or read aloud. A client with a hearing disability may need an ASL interpreter. A client with both a visual and an auditory impairment who is unable to see the interpreter sign or hear spoken language may need a tactile interpreter who will sign with the client’s hands placed over those of the interpreter.

Serving a client with a physical disability may require you to ensure that there is an accessible entrance and other accommodations to the physical layout of a space or to request an alternative method of participation if those accommodations cannot be made. For example, a client who was unable to leave his bed has been permitted to attend a hearing via Zoom as an accommodation.

Regardless of your client’s ability to self-advocate, your client knows their limitations and is able to tell you what they may need help with.1  An important part of being able to provide accommodations in communications with clients is knowing where and how to provide those accommodations. It may take creative thinking on your part in some cases, but you should listen to what your client needs and then determine how you can remove the barrier.

Lawyers often are so accustomed to using legal terminology or phrasing things from a legal perspective that at times we forget that not everyone thinks or speaks like lawyers do. Of course, failing to remember that we may need to modify our communication when speaking to non-lawyers affects our relationships with all clients, not just those with disabilities. However, if the client has a disability, it can sometimes add another layer to those communication needs that an attorney must be mindful of. Some examples of what this could look like include using reading-level-appropriate language or language that is understandable for the individual; providing written communications in larger print for clients with visual impairments; providing written communications in an electronic format, such as an email, to allow for use of an electronic reader; and having written communications produced in braille.

Language interpreters may also be a vital resource for adequate communication, but it is important to note that a language interpreter is not a disability accommodation; it is a communication accommodation. For instance, the need for an English-Spanish interpreter is a communication accommodation, but an ASL interpreter is a disability accommodation. There are different considerations for language interpreters and for a disability accommodation interpreter.2

  • 1In the case of a client or potential client whose disability raises questions of mental capacity (e.g., a severe intellectual disability), additional technical assistance may be available through Disability Rights Louisiana. See Disability Rts. La.
  • 2For additional discussion of language access in the courts, see this manual’s chapter on Language Access.

4 Statutory Protections for Individuals with Disabilities

4 Statutory Protections for Individuals with Disabilities aetrahan Fri, 02/24/2023 - 09:59

4.1 General Principles

4.1 General Principles aetrahan Fri, 02/24/2023 - 09:59

While we should all strive to be inclusive, providing accommodations for individuals with disabilities goes beyond moral high ground. Accommodations are statutorily required when they are requested or when it is obvious that there is a barrier, such as ensuring an accessible entrance into a public building. The primary sources of these statutory protections are the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

These statutes place affirmative duties on entities to not only prohibit discrimination but also to take steps to make the program, service, or physical location accessible to individuals with disabilities. It is important to dispel the common misconception that providing an accommodation gives an individual with a disability an unfair advantage. In fact, providing an accommodation simply levels the playing field to ensure that such an individual has the same access and opportunity to participate as an individual without a disability.

4.2 The ADA

4.2 The ADA aetrahan Fri, 02/24/2023 - 10:00

4.2.1 General Principles

4.2.1 General Principles aetrahan Fri, 02/24/2023 - 10:00

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.1  The ADA does not specifically name all of the impairments that are covered.

The ADA is divided into 5 titles that cover different areas: 1) Title I – Employment; 2) Title II – Public Services, which covers public entities and public transportation; 3) Title III – Public Accommodations, which includes commercial facilities; 4) Title IV – Telecommunications and 5) Title V – Miscellaneous. This chapter focuses primarily on Titles II and III.

  • 142 U.S.C. § 12102(1).

4.2.2 Title II – Public Services

4.2.2 Title II – Public Services aetrahan Fri, 02/24/2023 - 10:01

Title II covers all activities of state and local governments regardless of the government entity's size or receipt of federal funding.1  Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities (e.g., public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings).

Title II may be enforced through private lawsuits in federal or state court; although state courts have jurisdiction to hear ADA claims, advocates typically bring these claims in federal court. Unlike Title I claims for employment discrimination, it is not necessary to file a complaint with any federal agency or to receive a "right-to-sue" letter before going to court

  • 142 U.S.C. §§ 12131–12134.

4.2.3 Title III – Public Accommodations

4.2.3 Title III – Public Accommodations aetrahan Fri, 02/24/2023 - 10:02

Title III requires that state and local governments follow specific architectural standards in the new construction and alteration of their buildings.1  They also must relocate programs or otherwise provide access in inaccessible older buildings and communicate effectively with people who have hearing, vision, or speech disabilities. Public entities are not required to take actions that would result in undue financial and administrative burdens. They are required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided.

There is no exhaustion requirement for Title III claims, and a private lawsuit may be brought to remedy the discrimination if advocacy is unsuccessful.

  • 142 U.S.C. § 12181.

4.2.4 Disability Under the ADA

4.2.4 Disability Under the ADA aetrahan Fri, 02/24/2023 - 10:07

An advocate’s first step is to determine if the client has a disability under the framework of the ADA. The ADA has an expansive definition and guidance for disability, found at 28 C.F.R. §35.108. This definition “shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”1  The definition provides coverage for individuals under three rubrics.

First, an individual is protected by the ADA if the individual has “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.”2  An impairment “substantially limits a major life activity” if an individual is unable to perform, or is significantly limited in the ability to perform, an activity compared to an “average person” in the general population.3  The threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.4  There are three factors used to determine whether an impairment substantially limits: 1) its nature and severity; 2) how long it will last or is expected to last; and 3) its permanent or longer-term impact or expected impact. For example, a person who is legally blind or who has low vision has an impairment that substantially limits the major life activity of seeing.

Second, an individual is protected if the individual has “a record of such an impairment.”5  This situation arises when a disability that is not open and obvious and is not readily identifiable by a person interacting with the individual. For example, an individual with autism may fit under this category; you may not be able to identify that the individual has autism, but the individual may have a diagnosis declared in medical records.

Third, an individual falls under the ADA if the individual is “regarded as having such an impairment.”6  This arises when people who interact with the individual believe that the individual has a disability and associate the individual with having such a disability, even in the absence of documentation. However, an individual is not regarded as having such an impairment if it may be demonstrated that the impairment is, objectively, both “transitory” and “minor”.7  Transitory is defined, for these purposes, as lasting or expecting to last six months or less.8

  • 128 C.F.R. § 35.108(a)(2)(i).
  • 228 C.F.R. § 35.108(a)(1)(i).
  • 329 C.F.R. § 1630.2(j)(1)(ii).
  • 429 C.F.R. § 1630.2(j)(1)(iii).
  • 528 C.F.R. § 35.108(a)(1)(ii).
  • 628 C.F.R. § 35.108(a)(1)(iii).
  • 728 C.F.R. § 35.108(f)(2).
  • 8Id.

4.2.5 Accommodations under the ADA

4.2.5 Accommodations under the ADA aetrahan Fri, 02/24/2023 - 10:09

Once you have determined that your client has a disability within the meaning of the ADA, the next step is to determine if your client is unable to access the building or service or is unable to meaningfully participate as a direct result of the disability. There must be a clear connection between the disability and the accommodation; otherwise, the accommodation is not a proper request under the ADA.

For instance, if an individual has hearing impairment but is requesting an accommodation for a proceeding to be held on the first floor because they do not like to use stairs, that is not an accommodation tied to the disability. However, if the individual has a hearing impairment and is unable to understand what is happening during a court proceeding without an ASL interpreter, the interpreter is an accommodation required by the ADA.

The key here is to understand the barrier your client faces. This is where a conversation with the client is most valuable. What does the client need? What does the client perceive as the barrier? Does the client have a visual or hearing impairment? Does the client have a service animal? Does the client have a mobility impairment? Does the client have a difficult time understanding if things are not explained in plain language? While the client may not know precisely what accommodation they need, they should be able to communicate the issues they face or problems they have. Talk to your client, listen to your client. Your job is to ensure the client is able to participate.

Once you have determined that your client has a disability under the ADA and is in need of an accommodation, the next question is whether the ADA requires the entity to provide the accommodation.1  The ADA might require an entity to provide and pay for an ASL interpreter, but it might not require the entity to install a ramp if the building is historical and exempt.

4.3 Section 504

4.3 Section 504 aetrahan Fri, 02/24/2023 - 10:10

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.1  The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act.

Under Section 504 of the Rehabilitation Act, “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under” any program or activity that either receives federal financial assistance or is conducted by any executive agency or the United States Postal Service.2  Each federal agency has its own set of Section 504 regulations that apply to its own programs. Agencies that provide federal financial assistance also have Section 504 regulations covering entities that receive federal aid. Requirements common to these regulations include reasonable accommodation for employees with disabilities, program accessibility, effective communication with people who have hearing or vision disabilities, and accessible new construction and alterations. Each agency is responsible for enforcing its own regulations. Section 504 may also be enforced through private lawsuits. It is not necessary to file a complaint with a federal agency or to receive a "right-to-sue" letter before going to court.

  • 129 US.C. § 794.
  • 245 C.F.R. § 84.4(a).

5 Court Accommodations

5 Court Accommodations aetrahan Fri, 02/24/2023 - 10:30

5.1 Criminal Cases

5.1 Criminal Cases aetrahan Fri, 02/24/2023 - 10:31

5.1.1 Importance of Accommodations

5.1.1 Importance of Accommodations aetrahan Fri, 02/24/2023 - 10:31

Ensuring that necessary accommodations are available is particularly important for an individual in the criminal context. The ADA requires all entities in the criminal justice system (including attorneys, courts, jails, juvenile justice entities, police, prisons, prosecutors, and public defenders) to avoid discriminating against people with disabilities.1  This includes making reasonable accommodations to policies, practices, and procedures as well as communicating effectively with people with disabilities.2  The ADA further requires actors in the criminal justice system to avoid unnecessary criminal justice involvement for people with disabilities.3  The obligations placed on the criminal justice system by the ADA have been upheld in cases around the country, further emphasizing the importance and necessity for people with disabilities to be treated equally and have equal opportunity to access the courts.4

If an individual is unable to meaningfully participate in a criminal proceeding because a needed accommodation is not provided, it could be a violation of due process. A defendant in a criminal case must be able to participate in the defense, which necessarily requires an understanding of the proceedings at all stages.

As attorneys, we also have a moral and ethical obligation to ensure that individuals with disabilities are not unfairly punished for having a disability. This is most prevalent in the criminal justice system when individuals with mental illness are arrested for actions that may stem from their disability rather than from an intentional criminal act. For instance, an individual with a developmental or intellectual disability, such as autism, may have a behavioral episode in a public place and be arrested for assault or for causing a disturbance. The individual may not have been acting with criminal intent, but rather may have been experiencing uncontrollable behaviors related to the disability. These individuals should not be in the criminal justice system and penalized for having a disability, and attorneys should advocate for alternative paths to provide these individuals with assistance.

These circumstances are when wearing multiple hats is most important. We need to recognize when an individual would benefit from mental health treatment or intervention instead of incarceration and advocate for the individual’s best interests.

5.1.2 Responsibility for Providing the Accommodation

5.1.2 Responsibility for Providing the Accommodation aetrahan Fri, 02/24/2023 - 10:34

In criminal court, the prosecutor or the court is responsible for ensuring that an accommodation is provided to the defendant. However, it is the responsibility of the defendant or the defense attorney to notify the prosecutor or the court that an accommodation is necessary. The court or prosecutor may not realize an accommodation is needed, but once they are informed of that fact, it is their responsibility and financial obligation to provide the accommodation. The process may vary depending on the particular court, so it is important to ask the clerk whom to contact to request an accommodation.

If the client requires a physical accommodation to access either the building the courtroom, the attorney should contact the clerk to determine what accommodations may be already in place or what options the court may already have. For instance, there may be a portable ramp available that can be put into place so the individual can gain access to the building. If a courtroom is inaccessible due to stairs or other obstacles, there may be a different courtroom that can be used or an elevator.

5.1.3 Possible Accommodations

5.1.3 Possible Accommodations aetrahan Fri, 02/24/2023 - 10:35

An accommodation request is not limited to an enumerated list of things or services, but rather is tied to the needs of the client’s disability and what could be provided to enable participation in the court proceeding. It’s important to remember that there must be a nexus between the client’s disability and the accommodation requested in order for the accommodation to be required by the ADA.

For physical access issues, a requested accommodation could be as simple as permitting the client to provide testimony from counsel table rather than the witness box because stairs may be a barrier. Since the COVID-19 pandemic has pushed courts into using technology, an accommodation request could be to allow the individual to testify remotely via videoconferencing technology if physical barriers to the building prevent in-person testimony. For example, if there are only courtrooms on the second floor and the elevator is broken, but the defendant uses a wheelchair, requesting participation via Zoom would be a reasonable accommodation.

For clients with hearing impairments, you can request that the court provide an ASL interpreter. One important thing to keep in mind is that the interpreter provided by the court is an extension of the court and will not be able to interpret confidential communications between an attorney and the client. You will need to make a plan for confidential communications with your client; this could include communicating in writing or hiring your own interpreter solely for confidential communication purposes.

For clients who have service animals, you will need to inform the clerk that the client has a service animal that will be present during court proceedings. You and the client should keep in mind that if the animal is not well-behaved or housetrained, the animal could be barred from being in the courtroom even if it does provide a service.1

5.1.4 Requesting an Accommodation

5.1.4 Requesting an Accommodation aetrahan Fri, 02/24/2023 - 10:36

Any accommodation requests for physical access to the building or the courtroom need to be made to the clerk of court. The clerk will be able to direct you to another contact if necessary. It may also be a good idea to notify opposing counsel of the accommodation request, particularly if it may impact presentation of evidence. For instance, a witness with a vision impairment may not be able read a document while on the stand.

An accommodation request for an interpreter should be addressed to the clerk of court or to the prosecutor, depending on the procedure used in that court. The clerk of court is typically the best place to start; if the prosecutor is responsible for obtaining an interpreter, the clerk will be able to let you know.

It is typically not required that requests for accommodations to be made in writing, although depending on how tense interactions with opposing counsel are, having the request in writing may be beneficial. The clerk may ask for the request to be provided in writing as well.

The request should include the client’s name, the specific accommodation being requested, and the reason for the request. As an example, you could request a ramp into the building be provided to allow your client, Joe Smith, to enter the building in his wheelchair. Or you may request that Joe Smith be permitted to attend the hearing via Zoom due to the building lacking accessible entrances to allow him to be present in his wheelchair.

5.2 Civil Cases

5.2 Civil Cases aetrahan Fri, 02/24/2023 - 10:36

5.2.1 Responsibility for Providing the Accommodation

5.2.1 Responsibility for Providing the Accommodation aetrahan Fri, 02/24/2023 - 10:36

Unlike in a criminal case, which may threaten an individual’s liberty, in a civil matter the responsibility to provide an accommodation falls on the individual or the attorney. Just as the court is not required to provide an individual with an attorney in a civil matter, the court is also not required to provide or pay for an accommodation, such as an ASL interpreter. The individual or the individual’s attorney is responsible for ensuring an accommodation is in place.

An important caveat is a physical barrier to accessing the building. The courthouse is required by Title III of the ADA to be accessible regardless who needs to access the building. If the client or a witness needs an accommodation to be in the building or in the courtroom, the attorney should coordinate with the clerk to ensure the accommodation is in place.

5.2.2 Possible Accommodations

5.2.2 Possible Accommodations aetrahan Fri, 02/24/2023 - 10:37

As with a criminal case, the accommodation requested is not limited to an enumerated list and instead depends upon the needs of the individual. The types of accommodations that might be available are the same as those in criminal court.1

  • 1On the accommodations available in criminal court, see Section 5.1.3.

5.2.3 Requesting an Accommodation

5.2.3 Requesting an Accommodation aetrahan Fri, 02/24/2023 - 10:37

Because the responsibility for obtaining an accommodation falls on the individual with a disability or that individual’s attorney, you will need to coordinate the services or accommodation. The exception is the physical accessibility to the building or any physical barriers in the courtroom itself.1  If the client requires an interpreter, for instance, the attorney would need to contract with an interpreter to be present and available. You should also notify the clerk that an interpreter will be present, so that the court is aware.

5.3 Other Litigation Environments

5.3 Other Litigation Environments aetrahan Fri, 02/24/2023 - 10:38

How do you handle issues that arise as part of a case, but occur outside the courtroom? For instance, how do you handle depositions? For depositions, the person taking the deposition is responsible for providing and covering the cost of an interpreter. If your client has been noticed for a deposition, it is your responsibility to inform opposing counsel that the client needs an accommodation and what that accommodation is.

6 Animals

6 Animals aetrahan Fri, 02/24/2023 - 10:38

6.1 General Principles

6.1 General Principles aetrahan Fri, 02/24/2023 - 10:38

Animals have an important role in the lives of individuals with disabilities, whether the animal is a service animal or an emotional support/comfort animal. The way an animal is categorized informs what role the animal plays for the individual. It is important to know the difference between the categories of animals because different rules apply to their ability to present in court.

Emotional support animals, comfort animals, and therapy dogs are not service animals under Title II and Title III of the ADA. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either. The work or tasks performed by a service animal must be directly related to the individual’s disability. It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

It is also important to note that there are limitations to animals being permitted in public spaces, even if they are service animals under the ADA. If the animal is not well-behaved and responsive to commands or if the animal is not housebroken, the animal may not be permitted to remain in the public space. For these reasons, it is even more important for the individual to be clear about what the animal does and whether it is actually a service animal. If an animal’s actions threaten the health and safety of other people, it may also be asked to leave. However, allergies or fear of dogs are insufficient reasons to have a service animal removed. If an individual has an allergy to dogs and it is necessary for that individual to be in a space with the service animal, both people should be accommodated by assigning them to different areas where it may be possible to have enough separation that they are both permitted access.

6.2 Service Animals

6.2 Service Animals aetrahan Fri, 02/24/2023 - 10:41

6.2.1 Definition

6.2.1 Definition aetrahan Fri, 02/24/2023 - 10:41

A service animal is an animal that is trained to provide a service to assist an individual with a disability. Under the ADA, a service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.1  The work or tasks performed by a service animal must be directly related to the individual's disability. Tasks may include, but are not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to sounds, pulling a wheelchair, retrieving dropped items, turning switches on or off, assisting during a seizure, reminding a person to take medication, pressing an elevator button, or providing physical support and assistance with balance and stability. A crime deterrent provided by the animal’s presence or the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of meeting the definition of a service animal.2

Many people with disabilities use a service animal in order to fully participate in everyday life. Dogs can be trained to perform many important tasks to assist people with disabilities. The ADA requires state and local government agencies, businesses, and non-profit organizations  that provide goods or services to the public to make “reasonable modifications” in their policies, practices, or procedures when necessary to accommodate people with disabilities.3  This includes courts and other state buildings. The service animal rules fall under this general principle. Accordingly, entities that have a “no pets” policy generally must modify the policy to allow service animals into their facilities.

6.2.2 Examples

6.2.2 Examples aetrahan Fri, 02/24/2023 - 10:42

Examples of animals that fit the ADA’s definition of “service animal” because they have been specifically trained to perform a task for the person with a disability:

  • Guide Dog or Seeing Eye® Dog is a trained dog that serves as a travel tool for persons who have severe visual impairments or are blind.
  • Hearing or Signal Dog is a dog that has been trained to alert a person who has a significant hearing loss or is deaf when a sound occurs, such as a knock on the door.
  • Psychiatric Service Dog is a dog that has been trained to perform tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and lessen their effects. Tasks performed by psychiatric service animals may include reminding the handler to take medicine, providing safety checks or room searches, or turning on lights for persons with Post Traumatic Stress Disorder, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger.
  • SSigDOG (sensory signal dogs or social signal dog) is a dog trained to assist a person with autism. The dog alerts the handler to distracting repetitive movements common among those with autism, allowing the person to stop the movement (e.g., hand flapping).
  • Seizure Response Dog is a dog trained to assist a person with a seizure disorder. How the dog serves the person depends on the person’s needs. The dog may stand guard over the person during a seizure or the dog may go for help. A few dogs have learned to predict a seizure and warn the person in advance to sit down or move to a safe place.

In addition to the provisions about service dogs, the Department of Justice’s revised ADA regulations allow for miniature horses that have been individually trained to do work or perform tasks for people with disabilities, where reasonable.1  Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds. There are four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility: (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.

6.2.3 Identifying Service Animals

6.2.3 Identifying Service Animals aetrahan Fri, 02/24/2023 - 10:44

An individual with a service animal is not required to register the animal or have paperwork proving that the animal provides a service. A service animal is not required to wear a vest or other identifying items signaling that it is a service animal. Only two questions may be asked of an animal handler:

(1) Is this a service animal required because of a disability?

(2) What work or tasks is the animal trained to perform?

The ADA prohibits further inquiry into either the individual’s disability or other specifics regarding the animal that would necessarily reveal the nature or extent of the individual’s disability. The reason the law limits questioning to only these is to avoid discrimination on the basis of a disability and to avoid inquiries into protected information, such as medical conditions.

6.3 Emotional Support/Comfort Animals

6.3 Emotional Support/Comfort Animals aetrahan Fri, 02/24/2023 - 10:44

An emotional support/comfort animal is an animal that is not specially trained to provide a service. Rather, the mere presence of the animal provides comfort or emotional support that may ease the individual’s signs and symptoms.

An emotional support animal may of any species, but is not trained to perform work or tasks related to a person’s disability. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.

The use of an emotional support animal in a court setting will be entirely dependent upon the nature of the animal’s presence, the potential for the presence of the animal to disturb the proceedings themselves, and the benefit of having the animal present. For instance, if having a small dog sitting in your client’s lap will help ease the client’s anxiety and allow for more coherent and compelling testimony, it may be a good idea to request that the court to permit the small dog into the courtroom. However, if the animal is not well behaved and will cause a disruption, the benefit will not outweigh the harm caused and the court could rightfully request the dog be removed.

6.4 Sheriff Dogs

6.4 Sheriff Dogs aetrahan Fri, 02/24/2023 - 10:45

In this context, a sheriff dog refers to a dog that may be present in the courtroom or the courthouse for the role they fill for the sheriff’s department. The department typically uses dogs to detect drugs, explosives, or other public safety threats. These dogs are not present for the benefit of individuals with disabilities and due to their training cannot be utilized as such. If it is suggested that these dogs can be used in place of a service or emotional support animal, you should educate the court about what the service or emotional support animal provides for the individual with disabilities and point out that a sheriff’s dog cannot fill that role.

In a few courts, a service animal has been denied entry to the building because the sheriff dog was present. In at least one instance, court personnel suggested that the sheriff dog could fill the role of the service animal. This situation arose due to a lack of understanding of what the service animal was for and what function the service animal performed. While this particular suggestion is unusual, it is is important to be aware as it demonstrates some of the incorrect ideas many individuals may have about service animals. A sheriff dog does not replace the functions that a service dog performs. Further, the presence of a sheriff dog in the building should not prevent the entry of a service dog without a showing that one or both animals will be at serious risk of harm due to a lack of training or other reason.

7 Interpreters

7 Interpreters aetrahan Fri, 02/24/2023 - 10:45

7.1 Interpreters for Communicating with Clients

7.1 Interpreters for Communicating with Clients aetrahan Fri, 02/24/2023 - 10:45

If you represent a criminal defendant who requires an ASL interpreter, you will be responsible for coordinating those services for all communications with your client. It is important to note that ASL interpreters are bound by their own code of ethics and confidentiality, which prevents them from sharing any information they learn while they are providing interpretation services. It is also important to know that not all interpreters are the same. Some interpreters are specifically trained to interpret specific areas of communication, such as legal or medical. The specific needs of the communication itself should be considered when looking for an interpreter.

7.2 Interpreters in the Courtroom

7.2 Interpreters in the Courtroom aetrahan Fri, 02/24/2023 - 10:46

The responsibility for providing an interpreter during a criminal proceeding falls on the prosecution. The prosecutor must be made aware of the need for an interpreter. The prosecutor should then notify the court that an interpreter must be made available on the day the individual must be present in court. This interpreter is to relay the communications that take place in the courtroom itself to the defendant. If the defendant addresses the court, the interpreter is to also relay the communications from the defendant to the court.

If an individual requires an accommodation to be in place on the court day to allow for meaningful participation in the proceeding and that accommodation is not provided on the day of the hearing, the attorney should request a continuance. For instance, if you and your client appear on the day of the hearing and the ASL interpreter is not there or was not notified, the court should be made aware that communication is not possible without the interpreter and that the proceeding should not take place.

For civil matters, the individual requiring the use of an interpreter is responsible for taking steps to ensure an interpreter is present on the day of the hearing. The party may seek guidance from the court, particularly if the court has interpreters that they regularly use who may be available. However, the cost of the interpreter’s services may need to be paid by the party.

7.3 Qualified Interpreters

7.3 Qualified Interpreters aetrahan Fri, 02/24/2023 - 10:46

A “qualified interpreter” is an individual who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any specialized vocabulary required by the circumstances. Just as attorneys had to learn a host of new vocabulary in law school, ASL interpreters must also learn the signs for that vocabulary. There are qualified interpreters who specialize in different areas, such as legal or medical, and who are able to accurately and effectively interpret. What is important to remember is that an interpreter is not there to provide explanations to the individual, but instead is there to communicate what is being said to the individual in a manner the individual understands. It is important that you ask the interpreter if they are qualified to interpret for the situation you need, otherwise you run the risk that the interpreter will not accurately relay information to the client.

In 2008, the Department of Justice proposed adding language to the definition of ‘‘qualified interpreter'' to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued-speech interpreters.1  As the Department explained, not all interpreters are qualified for all situations. For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally. In addition, someone with only a rudimentary familiarity with sign language or finger spelling is not qualified, nor is someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words. Although some comments on the proposed rule sought to require that interpreters be certified, the DOJ ultimately decided against imposing a certification requirement.2  All that is required under the ADA is that the interpreter be qualified. However, a state or local law may require a higher standard, such as certification.

  • 1Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508, 34520 (proposed June 17, 2008).
  • 2Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236, 56264 (Sept. 15, 2010) (codified at 28 C.F.R. § 36.104).

8 Disability Rights Louisiana

8 Disability Rights Louisiana aetrahan Fri, 02/24/2023 - 10:47

Disability Rights Louisiana (DRLA), formerly known as the Advocacy Center, is the protection and advocacy (P&A) agency for the State of Louisiana. DRLA is a nonprofit organization with both attorney and non-attorney advocates who protect, advocate for, and empower individuals with disabilities. DRLA has federal statutory authority to perform its work,1  and each year publishes its priorities on its website for public viewing.2  As the P&A agencyh for individuals with disabilities, DRLA has amassed a wealth of knowledge about disability rights, resources for individuals with disabilities, and the law as it pertains to disability rights.

While DRLA is not able to provide direct assistance in response to every request, DRLA is able to provide technical assistance to other attorneys who may be handling a matter dealing with disability rights. Some examples of technical support that DRLA has provide in the past are:

  • Assistance with finding interpreters, obtaining materials printed in braille, and identifying and locating other forms of assistive technology
  • Guidance on accessible written materials including what font is appropriate, what color schemes are appropriate, and what formats may be more accessible
  • Guidance on how to represent an individual when eligibility for Medicaid waiver services has been denied or with an involuntary discharge from a provider
  • Assistance with advocating for a placement alternative to jail for individuals with both mental illness and intellectual/developmental disabilities. This assistance has included both technical guidance for the attorney and direct advocacy before the court.
  • 1See Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801, et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15001, et seq.; the Protection and Advocacy of Individual Rights Program, 29 U.S.C. § 794e.
  • 2See Priorities, Disability Rts. La.

9 Template

9 Template aetrahan Fri, 02/24/2023 - 10:48