Disabled individuals have the right to access justice and, thereby, the physical amalgamation of the U.S. justice system: the courthouse. But “justice for all” often has extremely high barriers to entry. Thus, many individuals’ roads to justice, including those with disabilities, are fraught. It is vital to acknowledge that current court access can be based on biases that perpetuate the subordination of marginalized groups, including the issue of access to the justice system for those who have disabilities.
Lack of Justice Greatly Affects Disabled People
Justice is more difficult to obtain if a court system is financially, architecturally, physically, organizationally, cognitively, socially, psychologically, or economically inaccessible for an individual. Although crimes against persons with disabilities have been found to occur at almost four times the rate as crimes against non-disabled individuals, this is likely an undercount. This is because disabled people may not have access to a lawyer, the financial resources necessary to hire one, or transportation to report an incident or file themselves. It is of vital importance to note that many disabled persons who have a wrong done against them often never get to the court system to receive justice.
Additionally, persons with disabilities are overrepresented in the criminal legal system and denied informed access to decisions made because of stereotypes, especially stigma surrounding mental, learning, and intellectual disabilities. Those criminalized, whether for minor or major offenses, are very vulnerable to prejudices that corrupt true justice, including denial of reasonable accommodations as “punishment,” lack of medical care during their time waiting for the court system to decide a judgment, or emphasis on institutionalization because they have a disability. Of note, all access disparities are compounded when a disabled individual seeking justice in the court system belongs to another marginalized community that has been systemically oppressed.
Finally, many courts do not consider that attorneys themselves may be disabled. This lack of knowledge results in many disabled attorneys not disclosing their disabilities for fear of stigma negatively impacting their case or being incorrectly labeled as incompetent.
With this framing in mind, below is a non-exhaustive list of court access issues and solutions.
Current Disability Access Issues and Solutions
Although there are many people with disabilities who interact with the court system, the courts have not yet achieved equal opportunity. Disabled people enter the court system every day, whether they be clients, jurists, attorneys, judges, clerks, officers, employees, the public, or the many other people who keep the court system functioning. However, access to the court system is not merely getting in the door; court systemic policies and procedures remain outdated, inefficient, and unorganized. But what can legal professionals do to increase access? Below are ten recommendations you can implement to increase court access now.
1. Ensure Language Access
There is a shortage of American Sign Language (ASL) interpretation for many court systems, but not from lack of want. In California, for example, court interpreters must be certified and licensed to be eligible to interpret. However, the only certification the Judicial Council of California allows (Specialist Certificate: Legal (SC:L)) no longer exists as of 2016. The Registry of Interpreters for the Deaf (RID) has updated its offerings, now offering other certificates, but the California courts have not updated their own rules to account for this. Thus, there has been no way to become licensed as a sign language interpreter, effectively creating a huge shortage of sign language interpretation for courts. For now, attorneys and legal professionals will need to be proactive and advocate for clients who communicate via ASL to ensure that interpretation is provided. Judges should be aware that other certifications are available to show expertise and competence in the language until the rule is updated.
2. Simplify the Reasonable Accommodation Process
Legal system participants—whether they be attorneys, paralegals, court employees, clients, witnesses, or jurors—all may have disabilities. Many times, an attorney with a disability will have no clear pathway to request a reasonable accommodation because such procedures are geared toward clients. In California, for example, some court websites assume the only person requesting an accommodation is a party to the case.
Judges should be cognizant that attorneys can also be disabled and may request reasonable accommodations themselves. Court employees and judges should also be knowledgeable of their delegated Americans with Disabilities Act (ADA) coordinator to know where to point those who need accommodations. If a court does not have an ADA coordinator, judges and attorneys can advocate that one be designated so accommodations are not solely up to the discretion of the judge, as this can cause a conflict of interest.
3. Defeat Stereotypes Surrounding Who Is “Competent”
Some courts that are unfamiliar with disability or disabled individuals have questioned whether disabled people can serve as jurors or attorneys.
Not only can disabled individuals serve as jurors, but they must in order to achieve a judgment from peers. Unfortunately, older courtrooms may have no way to access the jurors’ box other than steps, dissuading those with mobility disabilities from becoming jurors. Other times, judges may argue that the presence of an interpreter for a jury will violate a defendant’s rights, although this should not be the case. (See State v. Speer, 124 Ohio St. 3d 564, 2010 Ohio 649, 925 N.E.2d 584 (Ohio 2010).) To combat misconceptions, judges can ensure that the juror application process is feasible. Attorneys can ensure the voir dire process does not unnecessarily eliminate those who need accommodations. Once a disabled juror is chosen, the court system can ensure that accommodations are put in place before a trial commences.
Regarding the percentage of attorneys with disabilities, data is sparse because of stigma within the legal career field. The most recent data shows that 1.2 percent of lawyers in private-sector firms have disclosed they have a disability to their firm. Data for the public sector is unknown. This lack of disclosure can be attributed to blanket policies surrounding disability in the profession. Attorneys have specific pressures to hide a disability; the American Bar Association Model Rules of Professional Conduct still emphasize a lawyer with disabilities may be automatically unfit or incapable. According to Model Rule 2.14 (Disability and Impairment), a judge can report attorneys who have a “mental, emotional, or physical condition.” Many states across the country also include these requirements in their conduct rules. For example, California specifically indicates “mental, emotional, and physical ability” as the definition of “competence.” ( California Rule 1.1 (Competence).) This has led attorneys with disabilities to fail to disclose for fear of retaliation from a judge, opposing party, or their own employer.
Societal attitudes will shift only when more disabled attorneys have access to the profession and then speak up about their disability and how it does not preclude them from competent representation. Disabled and non-disabled attorneys can indicate to their state bar through public comment that professional conduct rules can be better worded to indicate that a disability need not automatically make someone incompetent.
4. Improve Communication and Use Plain Language
Courts sometimes do not have specific online docket labeling, register of actions, or hearing details. Instead, an attorney or pro per must call the court clerk to verbally find out which date may be for which parties and who originally asked for it. This lack of plain language use in court docket systems creates systemic inaccessibility to many attorneys with disabilities, including those who have learning disabilities, and neurodivergent individuals. In tandem with more transparent information online for a case, there also is a great need to advocate and inform courts when a court website itself is inaccessible for attorneys and clients with disabilities.
5. Advocate for Research and Rules
More research is needed to better understand and implement court access, including gaining statistics on reasonable accommodation requests and collecting disabled attorneys’ experiences. (See, e.g., the Judicial Council of California’s 2021 Court Statistics Report). Those in the legal profession can advocate for the courts to collect more data on disability in the court system.
6. Proactively Identify Client Needs for Court Access
Those interacting with clients must be competent in ensuring access for their clients, just as they research to create legal competency in court representation. Sound legal analysis also includes identification of how someone will be able to successfully navigate and attend court and acknowledge that biases and human frailty play a role in historical and current court policies and procedures. Attorneys must ask what the client needs to understand the case and describe how the court process works. Once attorneys have given a detailed description, they can ask clients about barriers that the clients think they may encounter in a court. When an attorney finds barriers to their clients’ access to justice, the attorney can raise the issue with the court, request a reasonable accommodation, change courtrooms, or schedule an interpreter or any other need in advance so a client is not caught off guard. It may be a client’s first time in court; explaining details such as the physical room, the language that will be used, and how and when to address the judge creates accessibility for the client.
Attorneys and legal professionals can also improve court access by requesting accommodations themselves. This normalizes the fact that attorneys may have disabilities and gives the court more experience in the process of implementing accommodations. When attorneys speak up about their need for equal opportunity in the justice system, they can create a powerful effect, both tearing down stereotypes and increasing access for future disabled individuals who need to use the court system. Legal professionals themselves have the most sway in changing the way the court discusses and provides access.
7. Champion Creative Policies and Procedures
Different and creative ways to create access have emerged out of necessity from the COVID-19 pandemic. New technologies and procedures never before used were suddenly required. Although many court systems are now back to previous functions, judges can keep these technologies, procedures, and innovative policies, which continue to increase access to courts by creating more flexibility instead of the traditional rigidity of a courtroom. Better access to e-filing, video hearings, remote access, preventive sanitation, and aseptic health measures all increase access for those with disabilities. Indeed, such measures implemented during the COVID-19 crisis should now be analyzed to reduce any inefficiencies. New technological advancements for the court have been key in creating flexibility that increases access for those with disabilities. When judges and court employees both learn about and implement guidance on the operation of new procedures, this creates accessibility while simultaneously helping with the backlog.
8. Educate Yourself
Attorneys, court employees, and judicial officers must take it upon themselves to be more informed of both the rules and the real-life opportunities to increase access for the disability community in their role in court. As a disabled attorney, I have seen courts unsure of how to accommodate disabled clients, jurors, and attorneys or even assume that these people could not be accommodated. As the legal field is constantly evolving, legal professionals must be informed and knowledgeable on their jurisdiction’s rules of courts and requests for accommodations by persons with disabilities (see, e.g., the report Interacting and Communicating with Persons with Disabilities from the California Conference on Self-Represented) and understand the basics of disability law contained therein. As judges have much power in their courtrooms, they can implement their own court rules that address disability access. All legal professionals can ask accessibility experts and disabled individuals what changes, policies, or procedures can be implemented in their own courtrooms.
9. Consider Intersectionality When Viewing Equal Access to the Court
By looking at the court system through a disability justice framework, attorneys and judges can have a better idea of the changes to make that will best assist those with disabilities. Disability justice provides a lens that includes the many identities that a person with a disability has and how such identities will affect access. For example, disabled people benefit from court systems’ examining their cost barriers, as disabled people have less disposable income and are more likely to be in poverty. In addition, multiply marginalized disabled individuals who are Black, Brown, Indigenous, LGBTQIA+, unhoused, or immigrants have much higher barriers to accessing the courts because of the systemic oppression they face. This discussion is non-exhaustive, as the innovative ways to achieve court access are as limitless as a legal professional’s creativity. But one way to effect change is to take on clients who are underserved in your community, whether that be pro bono or through your practice. Listen and then provide them with comprehensive access to the court system yourself.
10. Submit a Request for Accommodation for Yourself or a Client: Practical Tips
Below are practical tips for submitting a request for accommodation; I use my own state of California as an example. Even if a state does not have a specified court form or policy, the ADA still requires a court to review an accommodation request.
The California court system asks that individuals submit a request at least five days in advance. However, this can be a barrier as some courts require in-person submission, which is very difficult for those who do not have vehicles or accessible transportation. In comparison, the court does not have a rule indicating its timeline for giving a response, creating uncertainty about when one may know whether one’s accommodation is approved. Furthermore, the court has no rule on extending the time for appeal regardless of when the court mails a response. Procedures vary by court, and if the court does not have a specific ADA coordinator or extension to call, it can be burdensome for an applicant to be punted to many persons because there is no specific individual in charge of accommodation.
In California, to submit a reasonable accommodation request, individuals, including attorneys, are recommended to fill out and submit the Disability Accommodation Request (MC-410). MC-410-INFO is a how-to guide to fill out MC-410; however, it is important to note that the INFO guide does not give detailed information on (1) what to inform the court of or (2) where it is appropriate to submit the document.
To address the first concern, Section 5 of the MC-410 is arguably most important; there, you describe the nexus between the disability and the accommodation needed, and why it is necessary for equal access. No rule states that a physician’s letter is required; however, the court can ask the applicant to provide additional information, so it may be in your best interest to have a physician’s letter ready if possible.
To address the second concern, MC-410 should be submitted to the local employee in charge of reasonable accommodation (RA) requests. The employee will be different at each local court and may be titled the ADA coordinator, clerk’s office, or facilities coordinator. (A table of California Superior Courts’ RA processes can be found here.)
Although the above list of feasible actions is far from comprehensive, by starting with learning and advocating to ensure that all areas of the court system are better anchored in equal access, you can help create an improved court for all. Because we, as attorneys, legal professionals, and judges, have the privilege to interact closely with the court system, we have the power to change it for good. You, too, can create a better system that relies on equal access to justice. The more attorneys speak out and advocate for themselves and their clients, the more we may be able to achieve systemic change.