Bar News - April 16, 2010
Working with Deaf Clients: Be Patient
By: Kirk Charles Simoneau
Looking back on growing up with two deaf parents, I remember cruel taunts: my parents were called "deaf and dumb." I remember stupid questions: "If your parents are deaf, how do they drive?"
From left, Jean-Marie Lloyd, Barbara Warren, Kirk Simoneau, and Cindy Sheehan from Nixon, Raiche Vogelman & Slawsky in Manchester use sign language to applaud.
For the record, they drive the same way you and I do: a hand at ten oíclock, a hand at two oíclock, and a cup of coffee in the other hand.
Fortunately, I also remember that my parents, in particular my father, were successful in business despite their handicap, in large part, because of the help from a caring, kind, and patient lawyer Ė the late Hon. Arthur O. Gormley, Sr., my uncle.
I havenít been a lawyer very long, but Iíve been a Child of Deaf Adults (a CODA) a lifetime. So, I hope youíll follow some of my hard-earned advice for dealing with deaf clients.
The Cardinal Rule: Be Patient
The first rule is to be patient. Everything with a deaf client takes longer. Part of this is the natural delay caused by a language barrier. Communicating through an interpreter means that an interview or hearing takes longer because everything has to be "said" twice.
Another reason that everything takes longer is that itís the very nature of deaf culture. Since I was a small child, Iíve noticed that my parents and their friends take forever to say "goodbye." As every conversation was about to close, somebody added one more thing. Deaf people donít get to communicate as often or as readily as hearing people do. They donít chat on car phones while commuting from place-to-place. They donít pop into the next cubicle to share an anecdote about how their kid scored the winning goal.
So, when given an opportunity to communicate with the hearing-world-at-large, deaf clients will do what all of us would do Ė they talk and talk and talk. That next chance to be really "heard" and understood might be some time away. So, be patient - and allow more time on your calendar for the appointment.
All about Interpreters
After allowing for more time on your calendar, the next step, unless youíre fluent in American Sign Language, will be arranging for an interpreter. While many lawyers and other professionals, particularly doctors, tend to rely on the deaf clientís family to act as interpreters, this is an enormous mistake. Putting aside the legal implications of the Americans with Disabilities Act, imagine asking a rape victim questions through her father or husband. Or the indignity to a parent with an unfaithful spouse forced to relay the fact through a 13-year-old son. Or imagine asking about drug use. Will you get the best, or even a good, answer? No.
And, while weíre at it, donít let the hearing family member become the deaf clientís spokesperson. Often, because of the ease of communication, and for the sake of speeding things up, the family members of deaf people Ė pushy, but loving people, like me Ė take over. A good lawyer knows that you need the story firsthand; you get better information and the client needs to "dump" his/her problem to get beyond it. Otherwise youíre just further marginalizing someone whoís presumably already suffered.
How to Use an Interpreter
The law requires you to use a certified interpreter. (See RSA 326-I.) The most common type of interpreter for the deaf is a sign-language interpreter, but check to see exactly what type your client needs, and donít worry about privilege; New Hampshireís interpreter statute, RSA 521-A:11, makes interpreter-facilitated communication confidential, if the communication would ordinarily be confidential if an interpreter werenít used. The easiest way to get a certified interpreter in NH is to contact Northeast Deaf and Hard-of-Hearing Services at www.ndhhs.org or 603-224-1850.
Remember, when you are using an interpreter, donít look at the interpreter. Look at your client. Make the connection with him/her. This shows respect and common decency. Itís also considered good manners in deaf culture. More importantly, while the interpreter is translating words, the client is communicating meaning through body language and facial expressions; donít lose those important clues.
Youíll be drawn toward the interpreter, but try not to fall into the trap of ignoring the client Ė or youíll likely lose the client. Sadly, there are few certified sign language interpreters in New Hampshire and fewer still qualified to interpret in court. So, the advice you ordinarily give a client about court delays and the difficulty in getting in front of a judge will be greatly amplified. Also, for longer hearings, anything over an hour, two interpreters will be required.
Oh, and donít forget, you pay for the interpreter and you cannot bill it to the client. Both the ADA and Section 504 of the Rehabilitation Act require businesses that accommodate the public, like lawyers, to provide auxiliary aids (interpreters) to facilitate communication unless the transaction isnít very complex or providing an interpreter would be a legitimate undue burden.
As for lack of complexity, that "out" is for simple transactions at cash registers, not meetings with lawyers, even for a small claim. All meetings with lawyers are presumed complex. Also, it would be very difficult to show that hiring an interpreter for an hour was financially impossible for all but the smallest, unprofitable law practices. Typical rates in New Hampshire are $20 or so for the referral fee and $30-$40 per hour, including travel time, for the interpreter. If itís a long meeting, remember, that means two interpreters. Thankfully, as a result of 42 U.S.C. 12131 and RSA 521-A:12, for court appearances, the state picks up the tab.
Alternative Means of Communication
Because of the cost and delays in getting an interpreter, many lawyers might think of relying on less personal means of communication. Today, there are many ways to communicate: e-mail, texting, traditional TTY (those typewriters with a phone hooked up to them), video phone (think webcam), video phone interpreters, TTY interpreters and even plain, old-fashioned, handwritten notes. Each of these has limitations.
I wouldnít advise relying upon e-mail, notes or other written communication as a primary means of contact, at least not until youíre certain of your deaf clientís literacy level. Many deaf people, even the best and the brightest, have trouble understanding the written word Ė remember, itís not a lack of intelligence; ours just isnít their native language.
Video phones are great if you can use sign language. Services like Sorenson Video Relay that use interpreters are also wonderful; you dial a number and an interpreter speaks with you and signs to the deaf client on a video phone. All these communications are confidential per RSA 521-A:12. But many deaf clients are uncomfortable sharing important, private information through a video phone interpreter. It just doesnít feel very private, so you shouldnít over-rely on these helpful technologies.
In our office, many of our staffers have tried to address some of the discomfort caused by these communication problems by taking an American Sign Language Class. I am particularly proud of them, because, for 10 weeks, on their own time and without extra pay, they studied, practiced sign language and, even wrote papers on deaf culture so they could help put nervous deaf clients at ease.
Rather than accept the problems inherent in having deaf clients, the staff became aware that they could take small steps to raise the comfort level of such clients. Just by learning a word or two in sign language, like "coffee" or "water," you can help put deaf clients at ease, just as you would a hearing client.
Believe me, my deaf clients are so happily amazed when our receptionist Jeanne-Marie Lloyd offers a cup of coffee in sign, that they care very little about me or what I have to say!
There are lawyers who work with the deaf who believe that most deaf people try to ingratiate themselves with hearing people, particularly people in authority, and because of this any confession of a deaf person should be rigorously challenged. First, shouldnít every confession be rigorously challenged? More importantly, if an interpreter wasnít used, whether at a hearing, during an interrogation, or at any other event Ė challenge. Even the best lip-reader catches only some 60 percent of all words spoken, and thatís only of the person whose lips heís reading. Remember, 80 percent, or more, of the words we use arenít very important; they are the "ands," "buts" and such. So, even if a lip-reader catches more than 60 percent, he might not be catching important words such as "knowingly," or "voluntarily."
In the end, the key to working with deaf clients is really much the same as working with hearing clients. You have to know your client. You have to develop trust. And, most importantly, you have to be patient.
Kirk Simoneau, a graduate of the Daniel Webster Scholar program at FPLC, is an associate at the trial law firm of Nixon, Raiche, Vogelman, Barry & Slawsky in Manchester.