[blindlaw] Conducting Depositions

[Luis Mendez]

An excellent article. As to the question of discerning  visual ques, be
attuned to tone of voice, pitch changes, frequent shifts of position and
other audible cues that may signal stress, discomfort or other indications
of state-of-mind.  Just as readers remain a key component of a  blind
practitioner's tool kit, when  available, don't hesitate to  ask a colleague
to  share  his or her  observations.  Mostly,  rely on your senses and
impressions.  If you are attuned and observant you will find that you will
often pick up as much or more than others in the room.  Also, be listening
for inconsistencies and 
subtle shifts in responses or emphasis.   Such shift, often unconsciously
engaged in, can disclose much about a  witness's state of mind and/or
objectivity or truthfulness.

Luis

  



-----Original Message-----
From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Scott C.
Labarre via BlindLaw
Sent: Monday, July 24, 2017 5:50 PM
To: 'Blind Law Mailing List' <blindlaw at nfbnet.org>
Cc: Scott C. Labarre <slabarre at labarrelaw.com>
Subject: Re: [blindlaw] Conducting Depositions

Hey folks, Nikki's post made me think of our presentation at this year's
annual meeting of NABL.  I am pasting below an article I have shared with
NABL and recently updated.  It doesn't necessarily answer all of Nikki's
questions but hopefully it will spark some discussion on this list.  

Best to all!

Scott

PRACTICING LAW AS A BLIND LAWYER
WHAT IT TAKES
By
Scott C. LaBarre
July 12, 2017

AUTHOR'S NOTE
I first wrote this article in 2008, and before rereading it, I wondered
whether it would still be relevant.  In short, I believe it is.  The
fundamental message is the same.  The key to being a successful blind
attorney is one's attitude and spirit.  The rest is just a matter of problem
solving and techniques adopted.
Sighted attorneys often tell me that technology must be such a wonderful
tool and that it must have improved my ability to practice tremendously.
They are surprised when I say that technology is a double edged sword.  On
one hand, I certainly can get my hands on information much more quickly than
I could some twenty plus years ago when I attended law school.  However,
that can be said for everyone, regardless of the level of vision.
The other edge of the sword is, of course, inaccessible technology.  I may
have the assistive technology I need, like my JAWS for Windows, for example,
but if the document or software is in some inaccessible format, I am exactly
in the same place as I would be if a person handed me a sheet of printed
words and expected me to read it independently without the benefit of any
technology or human to do so.  
So one of the biggest hurdles we face as blind lawyers is no different from
the obstacles we face with our other blind sisters and brothers.  Technology
represents such great opportunity, but the digital infrastructure must be
built in a way that allows us access.  The most effective means to achieve
such access is through collective action.  That is why I remain a member of
the National Federation of the Blind and its lawyers division, the National
Association of Blind Lawyers.  We are far stronger together than any one of
us is alone.


INTRODUCTION
With negative attitudes and stereotypes about blindness so prevalent in our
society, it is not surprising to discover that many people believe that it
is quite impossible for a blind or visually impaired person to practice law,
or to do much else.  Many blind people themselves imagine that it would be
difficult to practice law or practice it at the same level as a sighted
individual.  Through the proper and full use of alternative techniques of
blindness and, more importantly, a positive attitude about blindness, blind
lawyers can compete at all levels in the legal field.  
Let me get a preliminary matter out of the way.  From here on, I will use
the term "blind" and will intend it to encompass the wide range of
individuals who have some vision to those that have none.  
Let me also make another disclaimer.  I am totally blind.  Therefore, I
operate primarily from that experience.  Many of my comments are related
directly to how it is done using no vision at all.  If a person has some
vision, I assume that they will, and should, use it.  However, the use of
residual vision is subject to some additional comments below.  
OVERALL THEME
The most common error that I observe blind lawyers committing is the belief
that their practice of law should be somehow limited.  They often become
overwhelmed by the details.  How will I keep track of exhibits?  How will I
read deposition testimony in Court?  How can I keep track of jurors during
voir dire?
Details are certainly important, and it is imperative that the blind lawyer,
or any lawyer for that matter, have a full command over those details.
However, it is far too easy to become trapped by the details and then scared
off.  
The key element for being a successful blind lawyer is a positive attitude
and confidence in yourself as a blind person.  You must believe that you can
be as effective and competent as any sighted lawyer.  The only true limits
placed on you are those dictated by your ability, imagination, and
willingness.  Blind lawyers do not have to shy away from litigation because
it can be so document intensive.  Blind lawyers are not confined to only
limited areas of practice or certain types of practice settings.  There is
absolutely no area of law which a blind lawyer cannot practice.
ALTERNATIVE TECHNIQUES
By "alternative techniques," I mean any tool, device, method, accommodation,
or technique used by a blind person to compensate for the loss/lack of
vision.  My first overall point, and emphasis, is that a blind lawyer must
have absolute mastery over the alternative techniques of blindness, all of
them.  An individual's needs and abilities will, of course, dictate the
extent to which the various alternative techniques should be used.
Generally, however, because the practice of law requires that we do so many
different things in a wide variety of settings, it is best to have a quiver
full of alternative technique arrows, even those that may seem somewhat
irrelevant to the practice of law. 
GOOD TRAVEL/ORIENTATION MOBILITY SKILLS
Possessing and using good independent travel skills, or what most call
orientation and mobility, is crucial.  Most do not think that this specific
alternative technique has much to do with the practice of law, but I beg to
differ.  To compete in the event, you have to be present in and able to move
around in the arena.
The overall point here is that you must be able to get where your job or
case requires you to be, and you must be able to do this with minimum
expense and inconvenience.  The exact method you employ is not all that
important, but the overall principal is.  
What do I mean?  Does it matter whether you use dog, cane, residual vision.
The short answer is no.  Use what is effective for you.  
You will notice that I did not mention sighted guide in the list which I
just articulated.  Sighted guide is an important technique, but it is my
opinion that it should not be a technique upon which you rely.  Does that
mean that you should never use it?  No, it doesn't mean that either.  Where
appropriate and convenient, sighted guide should be employed.  For example,
if I bring my legal assistant to court or a deposition, I may very well go
sighted guide.  
However, if I have a deposition or court in another city, I will not and do
not bring my legal assistant if the only purpose for doing so is being
guided.  I travel independently to other cities for two major purposes.
First, I want to limit the client's expenses and those of my business.
Second, and maybe more important, I want to send the clear message that a
blind lawyer has the ability to travel around independently and compete on
his or her own merits.  In my practice, I am often representing blind
individuals who have been discriminated against on the basis of their
blindness, usually in employment settings.  It makes quite the impression on
opposing counsel and their client when they see a blind attorney on the
other side getting wherever independently and doing whatever independently.
If the litigation reaches trial, the jury and judge are constantly reminded
that the blind are competent.  It is no longer just a fictional or abstract
concept.  Several years ago, my opposing counsel in a case said to me that I
would be Exhibit A at trial because of the way I conducted myself as a blind
lawyer.  We ended up settling that employment discrimination case for over
$300,000.00, an amount close to a best case trial scenario.
Some people tell me that they simply do not have good travel skills because
they went blind later in life or that they just don't have a good sense of
direction.  If you feel that your travel skills are not up to par, address
the problem with training, training that can often be provided through
vocational rehabilitation.  Ultimately, you must figure out for yourself
what works best.  Just don't limit yourself because of a lack of confidence
that it can be done.  
Let me expound upon a few specifics.  Any time that I am in trial, a
hearing, or before an appellate court, I get to know the courtroom.  I often
go ahead of time and become familiar with the specific room.  I want to feel
comfortable moving around in the environment.  During the contested
proceeding, I do not want to worry about getting up from the table and then
appearing lost.  I want to feel comfortable strolling to the podium or
approaching the bench.  
The same is true for depositions and other types of meetings in offices.
When I am taking depos in a local counsel's office, for example, I get
familiar with that surrounding so that I can show opposing counsel that I am
in command of the environment.  I tell them where the bathroom is or where
they can go grab a bite to eat.  In other words, I do the type of things
which they don't expect from a blind person.  
Now, in saying all this, I need to make one thing clear.  Don't be afraid to
make mistakes!  Mistakes are human.  We all make them.  There have been
times when I have not gone perfectly back to counsel's table, for example.
I simply correct course and sit down without showing any distress.  In such
situations, someone or, often many people, will jump up to help.  Accept the
help graciously and don't make a big deal of it.  Remember you're the one in
control.  It's not the end of the world if you bump something on the way
back to your table.  I have seen sighted counsel do it many times during
their presentation or travels throughout the courtroom.
Before concluding this section, I should say a few things about those who
have some residual vision.  The basic point is, use it if you got it, but
don't rely on it if it's unreliable.  Don't be afraid to use a cane or a dog
if you have to struggle too hard to see things.  Don't be afraid, for
example, to use a cane in the courtroom.  Don't pretend to be a fully
sighted person if you're not.  A cane might help you avoid obstacles that
your residual vision won't.  Those who have full vision will learn, sooner
or later, that you don't have such vision, or worse yet, they will think
that something else is wrong with you and won't know the reason.
Finally, whether I'm appearing in federal court or traveling to some far
away city for depositions, my least concern is how I will get there or
travel while there.  I have the requisite confidence to believe that I will
work it out some way, some how.  Unfortunately, I have seen far too many
blind lawyers be overwhelmed with the details of how they are going to get
there and travel while there.  The blind lawyer should, through whatever
reasonable means necessary, feel comfortable in the appropriate environment
and be able to focus on the job at hand.
EFFECTIVE COMMUNICATION
The world of law is all about words and communicating those words in an
effort to persuade others about your point of view.  What is law, after all?
Well, law, or the laws, is nothing more than a collection of words conveying
many arguable meanings, words intended to govern conduct in some form or
another.  
The common ways to communicate these words are, of course, through writing
and speech.  Blind lawyers who are only blind don't have any trouble with
the speech part of things, or at least shouldn't.  But one of the great
bug-a-boo's for blind lawyers is how to get access to those printed words
and manipulate those words back in a form that the sighted can understand.  
THE IMPORTANCE OF READING AND TAKING NOTES To say that reading for a lawyer
is a crucial skill would be rather obvious.
Therefore, the blind lawyer must be able to read as well as the sighted.
How the blind lawyer reads isn't as important as doing it well and
efficiently.  
Let me say here that if the blind lawyer has some residual vision and can
use print efficiently, then, by all means, print should be used.  However,
because reading and the corresponding skill of note-taking are so important
for our profession.  The blind lawyer with residual vision must be able to
read as efficiently as the sighted.  That means reading as fast and reading
as long.  We all know that it is often necessary in our field to read for
hours on end to prepare for court or to write a brief.  So, if you can't
read print well after an hour, a better technique must be at your finger
tips.  
Let me say something here about note-taking.  Many blind folks who have
residual vision take notes in print, which is fine, but I have also observed
that many of these individuals write in very large print.  Beware of your
adversary.  I was at a contested hearing once upon a time where a blind
lawyer with residual vision presented an argument.  Her notes and documents
were in such large print that opposing counsel, from across the room, could
read everything.
Now, as for me, I don't have any vision.  So, I have to operate in that
environment.  To surmount the print barrier, I use every trick, alternative
technique, available to me.  All of them are crucial, and I strongly
recommend that any blind lawyer have any or all of them available to him or
her so that these techniques can be called up when necessary.  
BRAILLE
Quite frankly, I could not do my job without Braille.  I use a Braille Sense
as my note taker.  That is how I prepare outlines for depositions or court.
That is how I take notes in meetings, with clients or otherwise.  I like
using the device because I can download and upload from it to my pc.  
I also use low tech Braille solutions as well.  For example, sometimes it is
necessary for me to jot some notes down using a slate and stylus.  This
device will always work when the Braille Sense is either not working or not
available for some reason.  I have, for example, used my slate and stylus to
mark a note card with Braille, which I then attach to an exhibit so that I
know how to find the specific exhibit later on.
I also use the good old Perkins Braille Writer to prepare cover sheets for
my exhibits when I go into a trial or deposition.  The Perkins is great for
advance work like this.  
I also employ the use of Braille embossers.  With today's practice of law
becoming more and more digital, it is often common place to have all
exhibits in electronic format, especially because most courts are now
requiring that documents be filed electronically.  Therefore, it is quite
easy for me to get exhibits embossed into Braille.  So, these days I go to
court, hearings, and depositions with a stack of Braille exhibits in hand.
It is wonderful to have the ability to read portions of exhibits to
witnesses or follow along while opposing counsel is doing something with an
exhibit.
I take all my notes in Braille.  That's how I prepare my cross-examination
while opposing counsel is conducting the direct.  That's how I prepare
rebuttal arguments during hearings or arguments. Braille helps both in
advance of the event and during it as well.   
Braille is an imperative technique for me in my practice.  It gives me the
ability to follow along and use documents to their full extent.  Juries and
judges are fascinated with Braille.  They appreciate the fact that you are
looking right at them while reading, for example.  Many blind lawyers have
different techniques of using Braille in their practices, but the
bottom-line is that Braille allows us to be very competitive with our
sighted peers.
ASSISTIVE TECHNOLOGY
As referenced above, the legal world is growing ever more digital.  Any
lawyer, with few exceptions, must be conversant in technology to remain on a
level playing field with their competition.  It is, therefore, only natural
and logical that the blind lawyer must not only be computer literate but
also literate with adaptive, assistive, technology.  
For me, that means being able to use JAWS to create documents, read and
write e-mails, read electronic documents, conduct legal research, and
otherwise use my computer in the same way my sighted colleagues do.
I, for example, always ask for deposition transcripts in electronic form as
well as the print copies.  That is how I read depos later on down the road.
I will often copy the deposition in question into another file and then
start making notes right in the text.  I use some symbol, like "zzz," at the
location of my note so that I can search for it later.  That way I can
easily find important passages at a subsequent time.  
I will cut and paste parts of depositions into another document, and then I
can Braille only those excerpts that I need.  This works very well at trial
or other types of hearings.  
Many courts are now using real-time reporting.  Be sure to have some laptop
hooked into the system.  That way you can read the transcript from that day
at some other time, in preparation for the next day, for example.  Even
though the real time transcript often has some errors and is certainly not
an official transcript, it gets you where you need to go in terms of
contemporaneous preparation.  One last thing on trial transcripts; when you
order a trial transcript, the court can provide an electronic copy in the
same way that depositions can be provided electronically.  This is a great
tool to use when preparing appellate briefs.  
I am well aware of the fact that I haven't addressed all the assistive
technology which can be helpful to the blind practitioner.  The emergence of
iPhones, iPads, and other smart devices are causing their own revolution in
the legal field, and Apple's inherent accessibility is a great advantage to
us.  Regardless, there is way too much to mention and it's always changing.
The main point is to make sure that you are literate in the latest and
greatest technology and how assistive technology can work for you.  For
example, the KNFB Reader Mobile fits in a cell phone and is a great tool to
take along and to review the last minute documents that have a way of
popping up.  
READERS
To this point, I haven't mentioned a low tech, perhaps the highest tech, yet
very important, alternative technique.  Despite our technological advances,
nothing yet replaces the human reader and skilled use of same.  It is
absolutely crucial to learn how to use readers and use them well.  None of
my technology can efficiently pick up the fax off the machine and tell me
its contents in 30 seconds.  None of my technology can easily tell me about
a surprise document which pops up at trial or some other setting.  The human
reader is still able to scan large quantities of printed material in an
intelligent manner.  Until the handheld reading device is as flexible and
reliable and as intelligent as the human reader, there will always be a
place for competent readers.  
CONCLUSION
This document is not intended to be the all encompassing manual on every
alternative technique necessary for the successful practice of law for blind
lawyers.  Its intent is to instill a positive attitude leading to creative
problem solving.  Although some specific tips were discussed here, the key
is having the fundamental belief that you, as a blind lawyer, can do as well
as any other lawyer, regardless of practice area.  Additionally, it is also
crucial to remember that you don't practice law in a vacuum.  The rest of us
are out here to help.  Through your colleagues in the National Federation of
the Blind and the National Association of Blind Lawyers, you will always
find someone with whom you can speak about a specific problem.  So, in this
regard, it is much better being part of a vehicle for collective action
rather than flying solo.  Working together, we can indeed very successfully
practice law on our own terms and live the life we want!  

-----Original Message-----
From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Singh,
Nandini via BlindLaw
Sent: Monday, July 24, 2017 1:58 PM
To: Blind Law Mailing List <blindlaw at nfbnet.org>
Cc: Singh, Nandini <NSingh at cov.com>
Subject: [blindlaw] Conducting Depositions

Good afternoon,

I am a new subscriber to the list in addition to a new attorney at a law
firm. As I think about how best to adapt and modify aspects of my legal
practice using non-visual techniques, I wanted to ask how you conduct
depositions. How do you organize exhibits, especially for a deponent who
would most likely be sighted while still giving yourself access to the same
material in another format? How do you handle last minute additions to the
exhibit list? How do you handle occasions when the deponent brings print
documents to the deposition? If you are conducting the deposition with a
sighted colleague, how do you communicate with each other during the
deposition itself (not meaning breaks)? What are some ways you can be an
effective second chair? How do you consider the deponent's manner, demeanor,
and/or other indicators of character? I would appreciate hearing your ideas
and techniques.

Regards,
Nikki
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