ADA Advocate Responsibilities
The Standard of Care and the ADA Advocates Responsibilities
The Standard of Care
The job of ADA advocates can appear to be impossibly broad and burdensome. However, rather than being all things to all clients, the advocate guides the client in the direction of each of the five focus areas falling under the Certified ADA advocate rubric. The goal is always to enhance the independence of the client, and to offer the least restrictive and intrusive accommodations. Advocates must not encourage dependence but rather lead and support the client in each of the five focus areas toward success and self-sufficiency.
The role of certified ADAAA advocates is to successfully implement federal mandates through unique training and skills that will smooth out the wrinkles in the system, bringing the strengths of the person with disabilities to the forefront. All give a little and, in the middle, there is great reward and protection for all parties. The key to unlocking justice and setting a positive path for humane courts of the future lies in the trained advocate who anticipates and prevents problems.
An effort to creatively develop ways to use the legally mandated role of ADA advocates to their maximum effect under the law involves recruiting and training a national pool of individuals who are personally dedicated to helping disabled litigants obtain and protect their rights in courts throughout the United States. Our organization, through an accredited university, certifies individuals who have been trained in that capacity. They are invaluable to attorneys who open their minds to this strategy, and their participation saves the court a great deal of time and resources.
Through our research and experience, the role of the ADA advocate has emerged as absolutely critical to those with disabilities, allowing them to be functional in court. The need for these services continues to expand.
Affordable professionals who are specifically trained both in the laws that are in place to protect the disabled, and the litigation process itself, can often save the client thousands of dollars. As we have progressed, we have seen a general positive impact in every facet of litigation. When advocates are able to work effectively, the system works better, the law works as intended, legal consumers are more satisfied, and judicial personnel are much less frustrated, especially when dealing with pro se litigants.
Defining the Role of the ADA Advocate
Neither the word nor the role of “advocate” is defined in the ADA statutes. This leaves us then to the standard dictionary that defines the word as: 1) to speak or write in favor of; support or urge by argument; recommend publicly, 2) a person who speaks or writes in support or defense of a person, cause, etc., 3) a person who pleads for or in behalf of another; and/or 4) a person who pleads the cause of another in a court of law. In practical terms, however, the advocate’s role may be broader than that. According to the ADA, the advocate may oppose any act or practice made unlawful by the ADA, charge, testify, assist or participate in investigation, participate in proceedings and hearings, and/or aid any individual in the exercise or enjoyment of his or her rights granted or protected by the ADA (ADAAA, 2008).
At any time, the advocate may be functioning as clerk, drafts-person, legal assistant, paralegal, attorney-in-fact, litigation manager, next-friend or ad litem, confidant, representative, spokesperson, interpreter, consultant, or in any other capacity necessary to assist the client in gaining, protecting, or expanding his or her rights as granted by the ADA. When applied directly to litigation, the advocate may act as follower or leader, depending upon the skills and experience of the client and those of the advocate. Some clients may need only superficial support and assistance; others may need substantial support, guidance and counsel. It is important to choose an advocate who has the mix of skills and experience that can best complement those of the client to form an effective litigation team. The engagement of an advocate is a critical prerequisite for litigation.
Preliminary Menu of Goals and Tasks:
- Ensure equal access to the litigation process;
- Foster the highest level of functional effectiveness for the litigant during legal proceedings
- Enhance the independence of the client
- Navigate the bureaucracy to mitigate and/or overcome obstructions that threaten to prevent the disabled person’s equal participation
- Act as liaison/filter/translator when communication is traumatic for the client, i.e. domestic violence cases requiring communication with abusive spouse
- Ensure that boundaries are maintained to prevent intimidation or exploitation of the litigant
- Help to establish safe emotional boundaries during court for the client while adhering to the rules of the litigation process (the judge will sometimes ask that the advocate perform tasks helpful to the court, i.e. help smooth out problems with service of documents or other procedural matters)
- Assist in getting the witnesses in and out of the courtroom in a timely and orderly fashion
- Expect the unexpected – be prepared to assist in a broad spectrum of issues that will pertain to the client’s accessibility, and assist to maintain a fair legal process keeping the advocate’s role under the ADAAA
- Attend court to assist the litigant and attorney
- Design and request accommodations
- Hold a power of attorney for legal, medical, and/or other purposes as narrow or broad as is needed
- Provide supportive counseling using Huffer’s 8-Steps as a guide, to keep the momentum of the case moving, by supporting the litigant in being comfortable and functional
- Act as liaison, keeping in contact with the appropriate ADA administrative office, the judge’s staff, and opposing attorneys
- Prepare for courtroom requirements such as planning the litigant’s table arrangements, preparing the client for the next hearing, meeting with opposing staff, or designing cues and working out a system of cuing the judge when an accommodation is required
- Provide or arrange for notary public services to facilitate proper and timely document filing and swearing in if testimony is provided long distance
- Help to index and maintain files in proper order in court
- Support the client in locating target research helpful to the case
- Refer the client to medical and legal resources as needed
- Evaluate the appropriateness of mediation
- Establish the client’s weaknesses and strengths to rule out malingering
- Testify as an expert witness if qualified
For the purposes of this work, access to legal proceedings means full:
- Emotional ability to participate
- Cognitive and mental capability with concentration
- Ability to communicate, verbalize, and form concepts
- Ability to get into the courtroom, physically keep a posture conducive to participation in the process by maintaining reasonable physical and mental health throughout the process
- Knowledge of the rules that are to be followed by all participants in the process
- Ability to fund the case to its completion
- Confidence in tenets of honest services, good faith, fair and ethical dealing, and goodwill, free from oppression by an adversary with more money, more power, and/or corrupt motives
Client Expectations vs Reality
The client is introduced to Huffer’s 8-Steps, a process of preparation for effective performance and general survival during litigation. Too often, disabled litigants initiate litigation prematurely, and are consequently unprepared for the realities and rigors of the litigation process. Throughout Huffer’s 8-Steps process, the litigant is encouraged to use each of the steps for healing and preparation. Jumping into litigation too soon can doom the litigant’s chance for going the distance, and winning. Consider the following example: if you have ever had to drive a car that sat out in winter weather, you would know how imperative it is to scrape off or de-ice the windshield and back window before your journey could begin. If you jumped into the car and took off, you would have found it extremely difficult to reach your destination and, for sure, you would have driven without proper visibility and safety. Jumping into a lawsuit is just as dangerous. Unless you know where you are going, where you want to end up, what the costs, distance, health and comfort requirements are going to be, you are vulnerable to a host of threats, and just as unlikely to “get there.”
Now, think of putting the iced up automobile onto a racetrack where a competitor wants to run you off the track, and where the rules are inconsistently enforced. That scenario is even more akin to what you may experience in litigation. Just as in racing, you need a crew to support your efforts, a team at every turn, and the money to make sure you can remain competitive over the long haul. You need all that -and more -when you decide to litigate.
Vetting the Litigant with Disabilities
Historically, the validity of PTSD in litigation has sometimes been challenged as being “PTSD for profit” in the court. For trained advocates, it is usually simple to ascertain the sincerity of clients. Those who will courageously endure the rigors of the eight protocols in treating Legal Abuse Syndrome are not likely to be malingerers. The fakers who seek a false diagnosis for profit frequently want the advocate to provide a quick report, and resist working through their painful psychological issues to a point of recovery. The client’s case history will also give clues as to his or her seriousness and credibility.
We generally attempt to rule out malingering before advocating for any client. To do so, we have developed some procedures to determine whether the likelihood of it is more or less certain. By using the following list of questions, an advocate can determine the relative credibility of an individual claiming to be deserving of ADA protection:
- Does the individual have a poor work record?
- Were the individual’s prior “incapacitating” injuries questionable?
- Is there a discrepancy between the individual’s participation in work and recreation?
- Does the person experience unvarying, repetitive dreams?
- Does the person exhibit antisocial personality traits?
- Does the person describe over-idealized life prior to the trauma?
- Is the person evasive about relevant issues?
- Is the person inconsistent in his or her symptom presentation?
- Is the person too accurate, and does he or she exhibit perfect consistency in reporting symptoms (true memory always varies somewhat)?
By completing this process, the advocate can assure the court that the client has been vetted, and their behavior is not consistent with malingering or deceiving the court in any way.
Guide of Conduct in the Courtroom
The courtroom is a choreographed, intellectual combat. As with any such contest, the client must first learn the rules. Then, the litigants must follow them, and insist that the opponent does the same. Depending upon who initiated the proceeding, one litigant will present his or her side first. The opponent will respond, and the first litigant will have a chance to reply. If the litigants are represented by attorneys, their attorneys will make the presentations. Otherwise, the clients will be expected to do it, or have their advocate speak for them if they are unable to do it (Gov.com).
The visual impression you make in the courtroom can be an important part of your strategy. You are not dressing to express your personality but to convey an impression to the judge and/or jury of the seriousness of your intention to assure equal access for your client. Therefore, you should dress in a professional, businesslike manner that shoes you are serious, prepared, and organized. Do not let the courtroom intimidate you. You belong there doing a critically important job per federal law.
During the proceeding, the advocate must be alert to precisely what is being said, and the implications of the argument being made. It is important to develop the skills and knowledge to be able to assure the client is able to keep track of the facts being presented, evaluate how they may relate to the law governing the question at hand, and observe the judge’s reaction to the facts presented and the argument being made. You, as an advocate, are present as a second set of eyes and ears. You have proven your worth when the client turns to you and says, “What’d he say?” and you can repeat the exchange, help decide, and efficiently take whatever supportive action is required.
Request ADAAA Accommodations
Many courts have an official form designed for persons with disabilities to request reasonable accommodations. However, the forms provided to apply for the Americans with Disabilities Act (ADA) Title II accommodations often pertain to accommodations for obvious physical disabilities, but are usually sorely lacking in addressing the needs of persons with PTSD and other “invisible” psychological or psychiatric disabilities. Every court is different. Some court personnel will have knowledge of the ADA, and how to accommodate some types of disabilities, but others may have no clerk, no specified department, and no place to file a request for accommodations. The very act of getting the accommodations written and filed timely in the designated office can be challenging and even prohibitive for the litigant with disabilities without the assistance of an advocate or someone knowledgeable in the workings of that particular court. We have commonly had clients who have been rudely treated, ignored, or simply had their requests handed over to the judge who is just as ignorant of the ADA mandate as the other court functionaries who serve him or her.
Some judges add insult to injury by bringing the request for accommodations out in the open court, exposing private and, by law, confidential information to the adversaries. Under ADA rules, only publicly filed information is to be shared with an adversary. HIPAA and ADAAA protections provide that accommodating disabilities is a strictly private matter between the ADA administrative office, the judge, and the litigant. Accommodating disabilities is an administrative/ministerial matter that is not within the purview of judicial discretion (US Dpt.Labor, 2010-11). Therefore, immunity does not protect judicial personnel if they err in their administrative duties. In other words, the judge’s immunity is set aside regarding these administrative duties.
After the assessment of the LWD (Litigant With Disability) is done, the advocate will use the client’s mind’s eye to mentally walk through the reality of court for that person. How do they feel in court? What do they do? What do they wish they could do? What distracts them and diminishes their performance? Using imagination and creativity, what alterations of procedures, what devices, what changes would offset their impairment and help them to effectively manage their case? Reviewing the following as just a menu of options that have been used successfully by litigants with disabilities will be helpful.
- A digitalized audio or visual recorder to run during legal proceedings due to PTSD amnesia and inability to concentrate should be in the litigant’s possession at all times. The recorder must be accessible by the litigant. A litigant often needs to instantly replay and have an immediate record. PTSD litigants cannot wait for transcripts that are often inadequate. Transcripts fail to deliver intonation, speed of speech, facial expressions, gestures and innuendos that are critical to the litigant’s reactions. Furthermore, transcripts can be tampered with or altered. Many intimidating actions take place in a legal setting using words that, in a transcript, appear to be appropriate and neutral. However, the manner in which the words are delivered may carry a threat or manipulation that can trigger PTSD symptoms. Real time transcripts are not a substitute for recordings. The recorder must not be confiscated by security, even momentarily.
- Presence of a psychiatric service dog trained specifically for PTSD and anxiety disorders may need to accompany the litigant to court.
- A litigant must not be kept waiting for long periods of time in the courthouse before a hearing. A litigant with disabilities must have an opportunity to go to a restful environment, and be notified when it is time for the hearing. There are lounges for lawyers; there must be lounges for those with PTSD who must wait. The waiting area must be separated from the adversary.
- Breaks when needed during proceedings are customary. If flashbacks are triggered by the testimony, the litigant will need a break to recover and refocus.
- Plain English, slowly spoken, is necessary during proceedings. Verbal functioning is often impaired by PTSD and must have no further complications from “litigation language.” Much traditional legal language is Latin, a dead language that is not useful, and reflects an exclusive appearance that shuns and often confuses pro se litigants.
- Equal access to discovery and all rules of court need to be followed especially for PTSD self-represented litigants.
- Litigants with PTSD may need extended deadlines for legal filings if they are symptomatic. PTSD imposes an additional burden in working through traumatic memory and physiological symptoms that must be aided by flexibility in the court’s handling of filing deadlines.
- Domestic violence victims must never be questioned by, or be placed under the authority of their abuser. They need separate entrances, to sit out of the presence of the abuser, or even to appear telephonically or by Skype, or other video services. They need to feel safe. Bailiffs may need to walk them into the courthouse and back to their transportation. Correction of misinformation that attacks character, and is designed to outrage and interfere with concentration of the PTSD litigant, must be immediate. Lies and misinformation are often used as tactics to create severe stress in PTSD litigants. Misinformation creates a type of fundamental attribution error more recently called correspondence bias that prevents the judge from making a fair decision (Gilbert, 1995). A form exists that can be submitted for this accommodation when the symptoms are triggered.
- Unintentionally, the ADAAA creates another barrier to be overcome by litigants suffering from disabilities by creating a process to qualify for accommodations. Advocates assist in filing for, and securing accommodations. Too often, they find that the process is arbitrary, disorganized, and results in unintentional denial of access and due process for the disabled litigant, unless immediately confronted. Ironically, in such instances, disabled litigants can be frustrated and defeated, while attempting to file the first court document designed specifically to assist them in gaining equal access to the judicial system.
Thus, specific, high-level communication skills are needed because court functionaries’ sheer incompetence or unfamiliarity with ADA law too often contributes to this tragic denial of due process and addition of traumatic stress. Simple persistent communication can avert the occurrence or worsening of Legal Abuse Syndrome (LAS). Some clients with PTSD are veterans freshly back from active military service. Many are citizens who enter the courts naively believing their rights to a fair hearing will be automatically protected. Instead, in the heat of battle, their rights are denied, their disabilities exploited, and they sustain life-altering losses unfairly.
Next, the ADA advocate does a visual check of the litigant with disabilities as a mental dress rehearsal for court. How is the litigant with disabilities dressed? One litigant with disabilities wore very low cut blouses and tight pants to court. She toted overfilled file folders and wobbled on her high heels. With her blond windblown hair, her image played into the disorganized, irresponsible, neglectful mother that the opposition attempted to put forth to the court. She needed to alter her image as the judge looked from the bench, and ensure that it was incongruous with the opposition’s words of attack.
Judicial Immunity from Lawsuits
The Supreme Court has held that judges can be held liable for damages in suits where actions, which are administrative in nature, are challenged. Given this abrogation of state immunity under the ADA, claims can be brought against a state judge in his/her individual or official capacity under the ADA without regard to the doctrine of judicial immunity. Ordinarily, judges enjoy immunity from damage suits from virtually any action they take in their capacity as a judge that requires the exercise of judicial discretion. See Stump v. Sparkman, 435 U.S. 349, 356 (1978). The United States Supreme Court in Forrester v. White, 484 U.S. 219, 224-225 (1988) refused to attach judicial immunity to a judge’s decision to fire a court employee, because the act was not “judicial” in nature. The Court held that truly judicial acts must be distinguished from the administrative, legislative or executive functions that judges may occasionally be assigned to perform. According to the Supreme Court, it is the nature of the function performed—adjudication—rather than the identity of the actor who performed it—a judge—that determines whether absolute immunity attaches to the act. Any time an action taken by a judge is not an adjudication between parties, it is less likely that the act [will be found to be] a judicial one. Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994). (Badillo v Garcia, USA Amicus Curiae).
Many references will be online resources due to the newness of this information. The passage of the ADAAA was just accomplished in 2008 going into effect in 2009. The most pertinent up-to-date material must be accessed online.
The ADA was meant by Congress for all persons to have equal and fair access to the courts as well as other public accommodations. The public service of the judicial system and intentions regarding invisible disabilities are covered on the Title II section of the ADA Act.
The American Bar Association. (1998). The American Bar. Retrieved January 24, 2000 From http://www.abanow.org
Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C. §§ 12101 et seq.
Gilbert, D, T. & Malone, P.S. (1995). The Correspondence Bias. Psychological Bulletin 117, 21-38.
Gov.com. Rule 5072-1 Courtroom Decorum. Retrieved from http://www.flmb.uscourts.gov/localrules/rules/5072-1.pdf.
Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 300gg et seq.
Scalia, A. & Garner, B. (2008). Making your Case: The Art of Persuading Judges. (pp.1-5) NY: Thomson/West.
U.S. Department of Labor (2010-2011). Occupational Outlook Handbook, Judges, Magistrates, and Other Judicial Workers. Bureau of Labor Statistics. https://www.bls.gov/ooh/.