Accommodating Disabilities in Courts

05/18/2015
According to the Census Bureau, nearly one in five—almost 58 million—Americans has a disability. The definition of disability is fairly broad, and under the ADA described as “a physical or mental impairment that substantially limits one or more major life activities.” More than half of respondents to the Census Bureau reported that their disability was “severe.” More than 8 million reported having difficulty seeing. Of those, 2 million were blind. About 7.5 million reported having difficulty hearing. Of those, 1.1 million reported the disability as being “severe.” Over 30 million Americans suffer from mobility issues. The numbers are startling. The probability of having a severe disability is one in four for those aged 65 to 69, the population is aging, and courts are not completely prepared.
 
Some disabilities are easier to address than others. Fredric Lederer, director of the Center for Legal and Court Technology (CLCT), notes that courts tend to lean toward mobility issues, but there are myriad other areas to consider, and while compliance to the Americans with Disabilities Act (ADA) is clearly an important issue to address, there are also other concerns about inclusion and access. A 2006 report for Washington State Courts titled Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts noted that there were 940,000 people in Washington who had a disability, which is a significant number for a state with a then population of 6 million. The report furthered that The Civil Needs Study, which was conducted by a task force in 2003 to study the needs for Washington’s low-income and vulnerable populations, also found those with disabilities experienced legal discrimination at a much higher rate than many other low income groups, and low income people with disabilities are the least likely group to secure legal assistance from an attorney.
 
There is, says Lederer, a general framework to consider. The first is for access to justice during trials and hearings, where people are actually in attendance. The second is in regards to court staff who may have disabilities and may do, for example, tasks such as data entry/processing. The third is the general public who wants to access information remotely but may have hearing or sight difficulties and encounter a situation such as at one time having been able to have text read to them but finding out that someone later added graphics. The fourth are those who come to the courthouse.
 
Federal courts generally, says Lederer, are mostly for the resolution of disputes. State courts are more involved in probate, marriage records, etc. According to the National Association for the Deaf, the ADA requires state and local courts to provide interpreters, real time captioning, assistant listening devices and other aids to ensure communication. The ADA, though, does not apply to federal courts, and state and local courts are not required to provide accommodations if doing so would “fundamentally alter the court’s services or that would result in an undue financial and administrative burden.” The question that arises is what is reasonable?
Lederer points out that one court that discussed the matter of access with CLCT responded that once a year or so the issue arises that someone who might need assistance has to wait for a clerk to help them. They may feel that, while they are in this situation, their time is valuable too, and perhaps they should simply be able to assess the material on their own. Other courts may encounter such concerns daily. Numerous courts offer training. The Washington Court Guide is a trove of information. The Tennessee Supreme Court’s Access to Justice Commission recently developed a training video that it states will help attorneys and legal agencies that work with persons with disabilities. Nearly 400 people attended Justice R. Fred Lewis’s training sessions that were designed to prepare participants to survey the accessibility of court facilities across Florida.
 
There was a time, Lederer notes, that if someone was blind or deaf, he or she would not be a juror. Now there are blind judges. Richard Bernstein, who has been blind since birth, was appointed to the Michigan Supreme Court in 2014. He prepared for 10 cases by memorizing key points in every case read to him by an aide. (On a personal note, he has also run more than 15 marathons and completed a triathlon, which involved running a 26.2 mile marathon, completing a 112 mile bike ride, and swimming 2.4 miles.) Justice Richard Teitelman of Missouri has been legally blind since age 13. Judge David Tatel, who sits on a federal appeals court in Washington, D.C., is also blind. And there are now hearing-impaired jurors. That means when the jury retires to the deliberation room, there would need to be an interpreter, which is not illegal, but it is unusual, Lederer points out.
 
Hearing difficulties vary greatly. Someone with a moderate hearing loss might not be affected. As the Washington Courts Report points out, though, once that loss becomes moderate, a person will likely start misunderstanding speech and require a hearing assistance device. When the loss is profound, they may require an interpreter. The Report offers solutions to providing service. The first is to have patience and flexibility. People with hearing loss (the document also admonishes that many deaf people consider the term impairment to be offensive) might feel intimidated by court proceedings and be “distrustful and reluctant to acknowledge confusion or uncertainty.” The key is to never assume one solution will work for everyone. When choosing, courts must abide by the preference of the person in need of accommodation. Most people with such a disability use some form of technology or sign language interpreter.
 
The technology must also meet ADA requirements. Enersound, a West Park, Fla.-based manufacturer of language interpreting, assistive listening, and conferencing products, offers systems such as the ALS-4TP Assistive Listening System that can improve comprehension for people who have difficulty hearing. The 4-Person Assistive Listening System with Neckloops and ADA Plaque is a multichannel solution (in the 72-76 MHz band) to meet the needs of the Americans with Disabilities Act standards for accessible design, useful for venues up to 100 seats.
Mobility is a primary concern when it comes to the ADA, and while technologies such as PESA’s VIQ integrated solution were not specifically designed to address ADA compliance, says John Wright, senior vice president, sales and business development at PESA, the application can significantly enhance access to courts, judicial, and public hearings for those with permanent or temporary physical limitations. “The ease of use and portability of the VIQ-PESA integrated solution allows for hearings, depositions, interviews, or arraignments to take place outside the traditional four walls of the courthouse, police station, or jail facility.”
 
He further explains the developing use of the application. “As is beginning to occur in limited use, taking an interview recording management system to the bedside of a sexual assault or domestic violence victim can reduce the time from initial report of the incident to the granting of a restraining order. Use of a proven system such as VIQ software with the PESA hardware creates an admissible audio and more importantly video record of the victim's injuries for use in legal proceedings.”
In further regards to use of remote technology, CLCT conducts experimental cases in which they study how modern technology can be used in courtrooms. One scenario CLCT is considering is if someone would make a perfect juror but due to a disability was unable to access the courtroom. Among the upcoming trials will be one in which CLCT will experiment with the world’s first remote juror who will be participating through telecommunication.
 
The PESA VIQ system’s user interface with visual cueing could also permit a deaf operator to manage the recording of proceedings. “Additionally the multi-camera synchronization capability of PESA's hardware easily allows for the capture and recording of simultaneous sign language interpretation. For all public proceedings, having this ability will improve access for the hearing impaired,” according to Wright.
 
Visualizers are a growing component in courtrooms, and manufacturers such as WolfVision are taking strides to ensure that users of all abilities are able to access them. Among those strides, says Kyle Greetham, communications manager, was placing full control of the visualizers at the head of the camera with ambidextrous design. “There is no built-in favoritism for right-handed or left-handed people, and surely this can benefit amputees.” They have also modified the units to be able to include dry erase surfaces on the working surfaces of their visualizers.  “This has been a big push from us because many wheelchair-bound users cannot stand up to use a whiteboard.”
 
There is also the matter that many control systems are built into podiums, but if a user is unable to stand to access it, it may be of no use. “Our vSolution Connect app gives full control of all of a speaker’s materials via a control dashboard on their tablet, so they don't have to worry about switching cables or moving objects around,” he adds.
 
Courts are becoming more and more technological, especially in audio/visual matters, and this can lead to issues of access for those with a disability. For example, says Lederer, Public Access to Court Electronic Records (PACER) is not accessible to the blind, so a lawyer who has lost his or her sight is locked out. There is also a catch-22 to the explosion of courtroom technology, Lederer points out. “Technology is great, but it might be making its own problem.” Courts are getting more and more visual and will continue to do so, which will be a barrier to participants with a sight impairment. A PowerPoint demonstration might make matters more difficult for someone who is blind, but it might be invaluable for someone who is deaf. It is, says Lederer, a matter with which CLCT is getting “increasingly more concerned.” It is not a new problem, but “as lawyers get more used to technology, we might be making it worse.”
 
All the more reason to think about accommodations for those physically-challenged and how to best address accessibility for all in your court.
 
 

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