Raising the Bar: Best Practices for 
Legal Advocacy for People with 
Disabilities 

Presenter: Matthew W. Dietz, Esq., 
Litigation Director 
Disability Independence Group 

January 23, 2018 



Who is Disability Independence 
Group? 



Disability Independence Group, Inc. 
(DIG) 

• 
DIG’s mission: to expand opportunities for 
participation, education, employment and 
acceptance of persons with disabilities 
through advocacy, litigation, education, and 
training. 

What is the ADA? How Can It Be 
Used to Advocate for Clients with 
Disabilities in Legal Settings? 



Obligations of State or Administrative 
Courts 

• 
Title II of the Americans with Disabilities Act 
provides that “no qualified individual with a 
disability shall, by reason of such disability, 
be excluded from participation in or denied 
the benefits of the services, programs, or 
activities of a public entity, or be subjected to 
discrimination by any such entity. 42 U.S.C. § 
12132. 
• 
Cannot deny a reasonable accommodation 
that helps them participate equally. 

Obligations of State or Administrative 
Courts (2) 

• 
Cannot deny auxiliary aids or services to 
provide information in a format that is 
accessible to a person with a disability. 
• 
Cannot be treated differently in the terms, 
conditions, or provisions of services because 
of a disability. 
• 
Only exception: if the accommodation would 
be an undue burden or fundamental 
alteration of services/ purpose. 

Full and Equal Opportunity to Participate 

• 
People with disabilities must be provided the 
same opportunities to benefit from or 
participate in a court’s programs, services, 
and activities as individuals without 
disabilities. 
• 
This may require the aids and services that 
are different from those provided to others. 

Full and Equal Opportunity to Participate 
(2) 

• 
Programs, services, and activities include the entire 
program which the Court is part of: 
• 
Family law – parenting classes, counseling, and 
visitation 
• 
Dependency – reunification programs and 
services 
• 
Traffic – driving classes, testing issues 
• 
Court proceedings – mediation, accessible 
documents, effective communication 

Attorneys and Private Entities’ Obligations 

• 
A private lawyer or a private entity must not 
discriminate against persons with 
disabilities when providing services. 
• 
Attorney may need to modify his or her 
policies and practices to accommodate a 
person with a disability, even if another 
accommodation is not readily achievable. 
• 
Readily achievable = easily accomplishable 
and can be carried out without much difficulty 
or expense. 

Attorneys and Private Entities Obligations: 
Examples 

• 
Ex. 1 – not readily achievable to remove an architectural 
barrier 
• 
Lawyer could meet a client who uses a wheelchair at 
the client’s home, or at a different, accessible location. 
• 
Ex. 2 – an undue financial burden in the scope of a 
lawyer’s entire practice to obtain a sign language 
interpreter 
• 
A discussion can be held between the lawyer and client 
to find some alternate method to provide effective 
communication, such as placing items in an electronic 
format for the Blind, or using the video relay system for 
a Deaf client. 

Federal Programs and Services 

• 
Similar to state and local courts, Federal Courts 
must have internal policies to ensure 
accommodations are provided to persons with 
disabilities. 
• 
Federal agencies, and entities that receive federal 
money (like courts) are subject to Section 504 of the 
Rehabilitation Act, and may not discriminate. 
• 
The interpretation of the Rehabilitation Act and the 
ADA are identical. 

Question #1: 

Is 
there 
a 
limit 
of 
the 
accommodations 
that can 
be provided 
to a 
person 
with 
a 
disability 
in 
the 
Justice 
System? 


Answer 
in 
the 
chat 
box! 




Determining What 
Accommodations to Request for 
Your Client with a Disability 



Rule 1 – Your Knows His or Her Disability 
and Needs 

• 
Always 
speak to your client about his or her 
disability and to find out what 
accommodations he or she usually has. 
• 
DO NOT rely on parents, family or friend to 
determine what the preferences are of a 
person with a disability. 
• 
DO NOT speak to a parent, family member 
or friend in lieu of the person with a 
disability. 

Rule 1 – Your Client Knows His or 
Her Disability and Needs (2) 

• 
The goal is to ensure that your client: 
• 
Is empowered; and 
• 
Has an equal opportunity to benefit from the 
programs and services as people without 
disabilities. 
• 
Lessoning your client’s input is taking self-
determination away from the client. 

Rule 1 – Your Client Knows His or Her 
Disability and Needs (3) 

• 
Sometimes there may be several accommodations 
that are available and will address the disability-
related need. 
• 
If your client is unfamiliar with the accommodation 
or it is not their proposed accommodation, it may 
be ineffective for your client. 
• 
The person knows what he or she needs. 

Questions about Accommodations 

• 
Persons with disabilities have different needs 
depending on: 
• 
their disability 
• 
history of accommodations 
• 
level of independence, and 
• 
many other factors. 
• 
Each person is unique. 
• 
The discussion with a client involves barriers, and 
responses to questions regarding what 
accommodations would be needed for that 
individual. 

Rule 2 – You Should Determine the 
Barriers in the Program or Service 

• 
After learning about your client’s disability, 
review the court process / legal program to 
determine the barriers your client might 
face. 
• 
In addition, review the policies and 
procedures in your practice to ensure that 
the barriers to your services are removed as 
well. 

Rule 2 – You Should Determine the 
Barriers in the Program or Service (2) 

• 
If you have any questions, speak to your client. 
• 
Talking to your client: 
• 
Shows that you are not making assumptions 
about your client’s needs; and 
• 
Allows the client to participate in the efforts 
to ensure equal opportunity. 
• 
Ensuring accommodations is part of effective 
advocacy. 

Questions about Accommodations – 
Sensory Disabilities 

Blind or low vision 


• 
What do you need to read documents? 
• 
Do you use a screen reader program? 
• 
How do you prefer I send you 
documents? 
• 
Do you have any transportation issues or 
needs? 

Questions about Accommodations – 
Sensory Disabilities (2) 

Deaf or Hard of Hearing 


• 
Do you need an interpreter, a CDI 
(Certified Deaf Interpreter)? 
• 
Do you need me to review the 
documents with you? 

Questions about Accommodations – 
Physical, Invisible, or Psychological Disabilities 

• 
The needs of persons with physical or invisible 
disabilities are varied, and may require a discussion to 
determine the type of accommodation the person 
prefers. 
• 
An accessible environment in compliance with the 
specifications of the ADA will satisfy the needs of most 
persons with mobility disabilities. 
• 
For example, accessible parking spaces, doors, bathrooms 
and accessible paths throughout the facility will make the 
facility usable for a person who uses a wheelchair. 

Questions about Accommodations – (2) 
Physical, Invisible, or Psychological Disabilities 

• 
However, many persons with disabilities have other 
needs that are not easily observed, which may include 
the following examples: 
• 
Need for additional breaks to stand or stretch, or to 
use the bathroom. 
• 
Inability to leave an institution or a home. 
• 
Inability to concentrate or exhaustion for 
proceeding more than a set time. 
• 
Use of a service animal. 
• 
Need for plain language documents. 

Question #2: 

What is 
the 
most important issue 
in 
determining 
the 
best, 
and 
most 
effective 
accommodation 
for 
your 
client? 


Please 
put 
your 
answer 
in 
the 
chat 
box. 




How to Request Accommodations 



ADA Coordinator vs. Judge 

• 
Every public entity that employs 50 or more persons 
have a person who is in charge of ADA compliance – 
courthouses have an ADA coordinator. 
• 
This is usually the point person for requesting any 
type of accommodation. 
• 
Each judge controls the procedures in his or her own 
courtroom. If accommodations involve the proceedings 
itself, the request needs to be made of the judge. 

ADA Coordinator vs. Judge (2) 

• 
If there is cost involved in securing the 
accommodation, the ADA coordinator 
should be involved. 
• 
Because of the overlap, best practice is to 
ask both the ADA coordinator and the 
judge. 

ADA Coordinator vs. Judge (3) 



Avoiding the Adversarial Process 

• 
Any issue before the court is subject to the 
adversarial process. 
• 
Attempts should first be made to the ADA 
Coordinator before requests are made to the Court. 
• 
Any request that involves a party or witness’ 
disability should be requested with notice to the 
Court as to the rights under the ADA or Section 
504. 
• 
There must be a connection between the disability 
and the request made. 

What Type of Proof is Required? 

• 
Judges do not receive in depth training in 
disability issues. 
• 
They may not understand the disability or 
the requested accommodation. 
• 
The judge may need further explanation as 
to why an accommodation is necessary, and 
will not be a fundamental alteration to the 
Court process. 

What Type of Proof is Required (2) 

• 
If the disability and the need for accommodation is 
not obvious: 
• 
Be prepared to have documentation from an 
expert to attest to the disability and the need for 
accommodation. 
• 
If necessary, the expert may need to present live 
testimony for the Court. 

Procedural vs. 
Substantive Accommodations 

-To ensure that a court program or service is accessible 
for a party with a disability, the Court may need to 
order additional services. Examples include: 

-Deaf specific victim counseling for a Deaf person 

-Additional home health care to prepare for family 
reunification 

-To ensure participation in a program or service, a 
procedural change may be required, such as: 

• 
Participation by telephone at a hearing 
• 
Special setting or limitation of length of testimony 
• 
Assistance communicating 

If Accommodations Are Denied….. 
Within a Proceeding/ Case 

• 
If the failure to accommodate affected the fairness 
of the proceeding, it needs to be appealed to the 
appellate court for that jurisdiction. 
• 
The failure to accommodate a person with a 
disability, where clear or obvious, may be a basis for 
recusal of that judge (the judge withdrawing from 
hearing the case) 
• 
The denial may be proof that the party is not 
receiving a fair trial, or bias or prejudice by the 
judge. 

If Accommodations are Denied….. 
Outside of the Court Case 

• 
If the accommodation involves access to 
the court or the courthouse, and is not 
material to the specific case, then the 
matter can be the subject of an ADA claim. 
• 
It will not effect the case. 

Question #3: 

How 
do 
you 
request 
a 
sign 
language 
interpreter 
for 
a 
court 
hearing 
versus 
requesting 
a 
sign 
language 
interpreter 
for 
a 
parenting 
class? 


Please 
put 
your 
answer 
in 
the 
chat 
box. 




How Can You Advocate to Make 
Systemic Change? 



Ensure that Courts Comply with the ADA 

• 
Each Court system has a procedure to comply with 
the ADA. 
• 
They must provide notice of rights under the ADA 
and remedies if such rights are violated. 
• 
Use the ADA coordinator – he or she ensures that 
accommodations are in place. 
• 
Judges are trained on the requirements to change 
their practices to accommodate participants who 
have disabilities. 
• 
Judges are aware that they can order 
accommodations to ensure equal treatment. 

Ensure that Lawyers Comply with the 
ADA (2) 

• 
Effective advocacy demands respect for the rights 
of others, including persons with disabilities. 
• 
Law offices should ensure that their offices are 
compliant with standards under the ADA and other 
applicable disability laws, at a minimum. 
• 
As effective communication is part of an attorney’s 
professional responsibilities, lawyers must ensure 
that persons receive information in formats that 
they can understand. 

Systemic Change Outside the Courtroom 

• 
Local Level 
• 
State Level 

Ensure that the Justice System Includes 
Persons with Disabilities 

• 
Approximately 25% of the population has a 
disability. 
• 
However, there are fewer persons with disabilities as 
lawyers or in affiliated positions in the justice 
system. 
• 
The lack of persons with disabilities employed in the 
justice system results in systemic discrimination to 
persons with disabilities who participate in the 
process and difficulties in obtaining equal provisions 
of programs and services. 

Question #4: 

Do 
the 
Rules 
of 
Professional 
Responsibility 
require 
a 
lawyer 
to 
provide 
an 
accommodation 
to 
his 
or 
her 
own 
clients? 


Please 
put 
your 
answer 
in 
the 
chat 
box. 




Thank you! 

Contact Information: 


Matthew W. Dietz, Esq. 
Disability Independence Group 
Phone Number: 305-669-2822 
Email: mdietz@justdigit.org 
Website: www.justdigit.org 



Questions? 



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