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Litigation Journal

Spring 2023: Presentation

A Deaf Litigator Reconciles Her Differences

Melissa Felder Zappala


  • Many lawyers feel they are not capable in some way, but each of us comes with our own need for accommodations.
  • My own critical inner voice was perhaps amplified by my hearing loss.
  • In a very unexpected twist, the pandemic vastly improved my ability to communicate with others.
A Deaf Litigator Reconciles Her Differences

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No matter how old you are, where you live, or what you do for work, being different from those around you can be a challenge. Often, the more evident the difference, the more difficult it can be to navigate the social and emotional hurdles. And my difference has always been hard to deny.

You see, I have a profound hearing loss—discovered when I was just a baby. Growing up, I had total hearing loss in the high frequencies—those are sounds like sss and sshh and ch. Even the most powerful hearing aids couldn’t help me. So, for example, “ice cream” to me sounded like “eye cream.” “Baseball” sounded like “bae-ball.” My hearing loss made me an expert lipreader—I used the visual clues to fill in the sounds I was missing.

To allow me as many options as possible as an adult, my parents enrolled me in neighborhood public schools—“mainstreamed” me, in other words—rather than in a specialized school for kids with hearing loss. This took place in the 1980s and 1990s, and there were few, if any, other kids with hearing loss at my school, which means that I’ve always presented differently from others.

I had to sit in the front row, dead center, in my K–12 classrooms. In all my classes, I used an FM system—a microphone worn by the teacher that transmitted sound directly to receivers on my hearing aids. This amplified the teacher’s voice many times over in a way that only I could hear. These “accommodations” helped me participate, and ultimately excel, in mainstream schools.

But they also gave me anxiety. At a time when most teenagers just wanted to “fit in,” I stood out. If the difference presented by my hearing aids or FM system somehow slipped past any of my peers, all I had to do was open my mouth to remind them. Because hearing loss also affects speech development, I have a “deaf accent.” While many quickly connect my accent to hearing loss, it is not unusual for people to inquire about my background as they try to identify which European country I could possibly hail from. One of my favorite examples took place 15 or so years ago, when I had a 10-minute conversation with a perfect stranger in a pizza parlor about Scotland—a place I had never even visited—because he was sure it had produced my unusual accent.

To make myself as “normal” as possible beyond these indicators, I would often try my hardest to act as though I didn’t have a hearing loss at all, which—looking back on it—was ridiculous. When I was growing up, closed captioning was nowhere nearly as ubiquitous as it is today; so when at friends’ houses, I wouldn’t want to “bother” them by asking them to figure out how to turn it on. I would sit through movies with friends without subtitles and consequently have no idea what happened. When I talked on the phone, I would pretend I understood what other people said, even though I didn’t. At parties, I would shy away from asking people to repeat themselves because I didn’t want them to know I didn’t hear them.

College and Law School

When I went to college, my accommodations became even more obvious. For the first time in my life, I had CART, or “Computer Assisted Real Time Transcription.” This CART was provided by a court reporter, with a stenographic machine and laptop, sitting next to me in each class and transcribing classes in real time. On the one hand, CART was incredibly helpful—it allowed me to follow my classes, even when they were in large lecture halls. But on the other hand, the presence of someone else in class with me made me even more self-conscious. Between me, the court reporter, her stenography machine, and my laptop, we took up quite a bit of space in the classroom. You couldn’t miss us. Many of my classmates back then thought it was “so cool” that this technology existed, but that was never my first thought. Instead, I was uncomfortable that I was so visible.

Also, the technology wasn’t perfect. Understandably, the reporter didn’t know all the proper names and places discussed in a seminar on Russian history or in a lecture on post-modernism. Maybe the professor gave the name of an individual that the reporter couldn’t spell, or perhaps a professor was difficult to understand, so the reporter just missed something. Whatever the reason, if the reporter didn’t catch it, I didn’t catch it. I was always paranoid, and instead of just focusing on the professor and taking in the lesson, I frantically took notes in all my classes.

The same dynamic played out in law school. I had one professor who just didn’t want to wear the FM microphone, and my CART provider was remote (meaning the court reporter was off-site, receiving the audio telephonically and transmitting the notes via website). Between these two issues, as well as the fact that half the class was centered around student participation, I missed a lot of what was said. Instead of pushing for a way to better comprehend, I just struggled in that class. I was still too uncomfortable with my difference to risk standing out.

After graduating from law school, I got a cochlear implant. For the first time, at age 25, I was able to hear high-frequency sounds. My ability to hear and comprehend increased markedly, but cochlear implants are far from perfect. I still relied heavily on lipreading, and phone conversations were difficult.

Practicing Law

When I started practicing in a “big law” firm two months after I got a cochlear implant, that firm provided unlimited access to a remote CART provider for phone calls—an invaluable technology. I was able to schedule a call via a dial-in, as anyone else could, and then simply share that number with the captioner, who would transmit the captioning to my computer via a web-hosting system. Without this technology, phone calls requiring legal-level specificity of language just would not have been possible. I credit the CART technology for facilitating a great deal of my communication.

Yet, like most technology, CART could be cumbersome. My ability to have a phone call was dependent on my ability to locate a captioner, so emergency or last-minute calls were almost impossible to schedule. Sometimes the captioning would freeze, so I would need to interrupt calls and ask for people to wait while the captioner rebooted. Sometimes the captioning wouldn’t work at all or the captioner wouldn’t show up, so I would need to reschedule the call entirely. Of course, the captioning itself was far from perfect and, like closed captioning for live TV events today, always delayed.

When I began taking and defending depositions, I used real-time captioning, which is the equivalent of CART but for depositions. Like CART, while real time is hugely beneficial, it’s not always reliable—sometimes it freezes, sometimes the transcript is garbled, sometimes there are typos.

Through all of this, I have always worried: “What am I missing?” I was constantly in a state of heightened attention during phone calls and depositions to make sure I was catching everything, asking for statements to be repeated and making sure someone else was taking notes. I pay such close attention during depositions or other major meetings that I am often overwhelmingly fatigued and suffer migraines afterwards.

In many ways, this heightened sense of awareness and even anxiety has worked out in my favor. I truly believe my deafness—or the adaptations I’ve created in response to this difference—has been a big part of why I’ve been so successful as a litigator. I feel like I’ve had to work twice as hard and twice as long to prove my capabilities. When I was a junior associate, for example, I was put on a trial team only to learn later that the lead trial attorney added me because he wanted to see if I could do it—he did not know whether I could. (I did.) Whereas most attorneys have to worry about whether their work will be perceived as strong or effective enough, I had to worry about whether people thought I could even do the work in the first place.

A Constant Battle

I constantly felt the need to prove myself. My billables were high. I over-prepared for depositions, arguments, and meet and confers. I read and reread briefs before filing, and then I would pace the halls the day of filing, worried that I had missed some obvious typo or overruled case. Ultimately, I made partner at my first law firm, so clearly I proved that I could do more than just do the work.

And yet, just as I did while growing up, I still wanted to “hide” my hearing loss—even after making partner. Even though I needed accommodations and could not run from the fact that I was deaf, on calls with clients or opposing counsel I would cringe at the need to introduce the CART reporter and to explain why there was one on the line. I resented the fact that I needed to identify and disclose my hearing loss because there was a third person on the phone. It was an internal battle nearly every time.

In depositions, I have to ensure that witnesses can understand my accent and let them know that they may have to repeat themselves if I can’t hear them. I practically have a speech prepared explaining my deafness and reminding the witness of the accommodations needed on both of our parts. Over the years, it has become much easier to deliver these introductory remarks. It’s just part of the process now. Before I increased my resilience in this space, I would often have a huge spike in anxiety beforehand: How would my disability be perceived? What will the witness think? Will my legal ability—or my whole self—be judged because I’m deaf?

It has been a constant battle between advocating for the accommodations I need to succeed and not being self-conscious about my hearing loss. In one case, I represented plaintiffs in a large multidistrict litigation matter. At the pretrial hearing, and in light of the number of defendants, the courtroom was packed, with attorneys in every row in the gallery, as well as the jury box. I had arranged in advance for real-time captioning so that the court reporter would transmit captioning of the hearing to a tablet or computer screen at counsel table. But on this day, the reporter just could not get the captioning to work. The whole hearing was delayed while she tried to fix the system just so that I, alone, could get the captioning. I still remember the silence in the courtroom; you could have heard a pin drop. Everyone knew that I was the reason for the whole debacle. Ultimately, and understandably, the judge decided he needed to get started. I wound up sitting next to the court reporter, facing the entire mass of attorneys, just so I could look over her shoulder at the captioning on her own computer. Thankfully, the full system rebooted 10 minutes later, and I was able to return to counsel table, face flushed, feeling like I stuck out.

In those moments, it’s hard to realize and remember that most people are not looking down on me—that they know this accommodation is something I need and they have no issue with it. In this case, the judge delayed the hearing to fix the captioning and then was fine with my sitting next to the court reporter during the first part of the hearing, which was a very unorthodox situation. But that didn’t make me any less self-conscious.

I can’t think of a situation where anyone has ever had anything negative to say about the fact that I needed certain accommodations. But as someone who has always wanted to “pretend” that I am fully hearing, I had serious anxiety and self-doubt in all of those situations.

The Pandemic

Fast-forward to March 2020, when the pandemic effectively shut the world down, and all of us were forced to adjust in a big way. Practicing law from home came with plenty of benefits, including wearing slippers to oral arguments and a 30-second commute from kitchen to “office.” There were also plenty of moments of levity, such as when I witnessed someone’s half-naked husband wandering into the Zoom screen, heard children screaming, or suffered through a dog’s incessant barking—all during “very important meetings.”

But I was forced, again, to stress about communication and my ability to get the job done. What would it mean for me, now that in-person gatherings were not an option? How would this go? I’ve adapted over and over again in my life to so many different settings, and this was just one more change. Still, I worried: What if this was the one setting where things finally wouldn’t work out? Fifteen years into my legal career, and eight years after I had made partner, I still questioned my own capability. Maybe this would be the situation where my disability finally would prevent me from doing my job.

In a very unexpected twist, the pandemic actually helped me come to terms with my hearing loss in a new way, and it vastly improved my ability to communicate with others. The lack of communication options forced me to get comfortable—fast—with repeatedly disclosing my hearing loss. The pandemic felt like a bit of a “coming out” of sorts.

It also facilitated incredible advances in technology that greatly eased my ability to communicate, and, for once, these advances were felt by everyone. Zoom, Webex, and Teams all leveled the playing field for me, due to my ability to lipread. Because I no longer needed a captioner, last-minute meetings became possible via video platforms, and I didn’t have to go through the process of arranging for captioning. This meant that for the first time in memory, I was able to communicate nearly as well (if not exactly as well) as all others without any separate accommodations.

For example, at the height of the pandemic, I was handling several cases that were proceeding with discovery, for which I needed to meet and confer with opposing counsel and counsel for third parties on a near-weekly basis to negotiate the scope of discovery. These meet and confers occurred over video platforms, making it so much easier to engage in a “natural” flow of conversation than pre-pandemic because I could see and lipread opposing counsel. It was such a relief when I realized I had more control over communication.

Of course, as people migrated to these video platforms, some preferred to keep videos off. I often needed to start meetings by asking people to turn their cameras on, which required me to explain why: that I’m deaf and lipread. This constant identification and re-identification of who I am helped me to see—over and over again—the willing ease and positive reactions of others. I was particularly struck by how true this was when it came to opposing counsel. Even in the antagonistic space of meet and confers with opposing counsel, I never met with any resistance to my need to hash things out via video rather than over the phone.

The pandemic also gave me space to reflect personally. Over the past two years, I did the work and finally made the choice to own that which has already been accepted by everyone around me: that I’m deaf and communicate a bit differently, and there’s nothing wrong with that. It truly took the push of the pandemic to force this work; I had no choice—I had to find ways to effectively communicate in this new world. Doing so again and again made it easier and easier for me. As I got more comfortable, I grew more confident in presenting my communication style and needs: in explaining my hearing loss, what I required, and how to most easily facilitate it.

Looking back, I’ve always been a little different and have never known a time when I was just like my peers. From being the only student in my grade school classes with hearing aids, to sitting next to a court reporter in the well of a courtroom, I’ve never exactly flown under the radar. Being different was, and is, my “normal”—a fact especially true in the legal profession, where there are few deaf attorneys. The number is growing every year but remains a relatively small number.

I’m also a bit embarrassed that, mired as I was in my concerns about being different, I didn’t focus more on how fortunate I was to have the resources I had growing up. I went to a college and law school that provided me with captioning; I have always worked at law firms that provided me with necessary accommodations without question. These are resources that are unfortunately not always easy to come by, and more work is needed to make them universally available. Without them, there is no question that I would be in a different place today.

I had to spend a fair amount of time becoming comfortable in my own skin, but I’ve realized over the years that this is not a struggle unique to me. So many attorneys I talk to think they’re not capable in some form. They have imposter syndrome or think they’re just not smart enough. They think they’re not aggressive enough, that they missed an argument they should have made, or that they didn’t write a brief as well as it should have been written. So many people have this same inner voice of self-doubt and criticism that spoke to me. My own critical inner voice was perhaps amplified by my hearing loss more than the inner voices of others, but we would all do well to remember that each of us comes with our own need for accommodations.

Being a deaf litigator in the midst of a worldwide pandemic wasn’t on my bingo card, but in a strange way, it has been a real gift to me and my family.