Standing Up for What I Need

http://www.nytimes.com/2017/02/22/opinion/standing-up-for-what-i-need.html

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Opposing counsel and I were at sidebar, talking to the judge out of the jury’s earshot. The judge’s face loomed high above me as she sat behind the “bench” — a four-foot-high wooden desk atop a two-foot-high platform. I was in a wheelchair and had to stretch my neck to communicate with her. Opposing counsel, who stood directly in front of the judge, quite comfortably made eye contact with her as she spoke.

I was not new at this. It was 2013 and I had tried over 50 jury cases in the past three decades, winning quite a few substantial verdicts, but I felt that something was going on. To be effective in my profession, you have to be heard. That can be difficult when you can’t stand up to project your voice. This judge was ruling repeatedly in favor of the lawyer she could see and hear best.

I was already an experienced trial lawyer by the time I learned I had multiple sclerosis in 1995, at age 41. M.S. is a condition in which an abnormal response of the body’s immune system is directed against the central nervous system and attacks myelin, the coating of the nerve fibers, and the fibers themselves. When the myelin or nerve fibers are attacked and damaged, scar tissue, or sclerosis, is formed, which prevents the proper transmission of messages through the brain, spinal cord and optic nerves, producing a wide variety of symptoms. In my case, it has primarily affected the use of my legs.

Since I started trying cases from a wheelchair 12 years ago, my relationship to my profession has changed. When I lose a case, I sometimes feel unsure of the reason for the defeat. Was I not persuasive because I couldn’t get my point across from a wheelchair, or would my argument have lost no matter where it came from? Was I not treated as well by the judge or opposing counsel because I was sitting, or did I just not adequately articulate my point?

I don’t want to believe that I’m being discriminated against because of my disability. Believing that not only requires advocacy for myself when I should be advocating for my clients, but also calls my ability to do what I love into question.

The first time I asked a judge to accommodate me was many years before when I was trying a prisoners’ rights case and still walking on weak legs. That judge agreed before the jury came in that I could violate protocol and remain seated when I addressed her and them during the trial. But when she later told the jury that I had difficulty standing because of a health condition, I was embarrassed. After that, I tried not to draw attention to my needs in the courtroom. That prevented me from asking this judge to come down from the bench so that I could communicate with her face to face.

I realize that I need to overcome this apprehension. For people trying to live a “normal” life with a disability, an aversion to “causing trouble” by asking for or demanding accommodation is understandable. But I know that resisting the reluctance to make waves is important — basic things like ramps, Braille materials, hearing assistance equipment or lowered counters can help people with disabilities live and work on or near par with others.

My wheelchair doesn’t interfere with most pretrial tasks — preparing documents, having meetings, taking depositions. I have no trouble with many processes in court — speaking to a jury, questioning witnesses and talking to a judge from the middle of the courtroom, where everyone can hear me. The big challenge is the bench, particularly during sidebars, when the lawyers have to converse quietly with the judge at the side of her high bench. Jury selection and conferences that are not for jury consumption take place there.

Before that day in 2013, I had overcome the obstacle of the bench in one of two ways: Sometimes, my tall law partner would try a case with me and help handle matters at sidebar. Other times, judges voluntarily came down and handled sidebar matters at the lower clerk’s desk in front of the judge’s bench. For whatever reason, this judge remained behind her high perch. And my own lack of confidence prevented me from asking her to make the accommodation.

The case that day concerned a 7-year-old boy who lost some of his vision when another child kicked a football into his eye during recess. I was arguing that the injury resulted from a lack of supervision on the part of school staff. The safety expert I hired was on the witness stand. The defense lawyer constantly interrupted her testimony, objecting and demanding to speak to the judge at sidebar. Once we were there, he would stand and argue that my questions or the expert’s answers were not phrased properly. I would vigorously argue to the contrary from my seated position, feeling that I could hardly be heard.

This is not how it usually works. Ordinarily, the witness is able to testify and is then cross-examined by the other lawyer; I would have had no problem conducting the trial this way. But my opponent’s tactic of continually interrupting and bringing us to sidebar, while I don’t know if it was purposeful, was effective. We spent long periods with the judge agreeing with him and admonishing me from on high. The flow of my expert’s testimony was disrupted. The jury looked confused as they were kept in the dark for extensive periods of time.

The impact on me was that my identity as a trial lawyer was shaken. As I stared at that wood in front of me, with the angry voice of my opponent and the obliging voice of the young judge above, I had one recurring thought: Maybe it’s time to do something else. I felt I had no business trying a case in a wheelchair.

At the end of that day, opposing counsel unexpectedly approached me and offered to settle the case. The parents agreed. And I was glad to get their son a little money for his future.

I haven’t tried a case since that day but will again. I’m always encouraged to see newer courthouses that have ramps at the judge’s bench for lawyers like me. But if my next case isn’t in one of those courthouses, I will ask the judge to come down. Those of us who need accommodation so that we can keep doing what we love must have the courage and self-respect to seek them, even if we would rather we didn’t have to.