Abstract
Having litigated a number of disability rights cases, I have become increasingly concerned with the issue of client subordination in this sort of litigation. Although there are frequently risks of power and paternalism in the lawyer-client relationship, particularly with clients who have traditionally been marginalized, I am especially concerned about these risks for clients in disability rights cases, where a person (1) may come to the lawyer-client relationship with a prior history of subordination, forced dependency and presumed incompetence; and (2) is confronted with a statutory framework that has stereotypes about the identities of disabled people essentially "hard wired" into it. Amplifying this situation is the traditional wisdom of law practice, which dictates that in order to win her case, a lawyer must present her client's claim in a way that not only demonstrates that the client can prove each of the legal elements of her claim, but also resonates with the understanding/expectations (or "dominant narratives") that the finder of fact has about people with disabilities.
In this Article, I explore two 'moments' that typically arise in the course of litigating a disability rights case that raise significant issues of client identity. The first occurs when a client's story is first framed as a disability rights case, thus invoking the need for the client to self-identify as an "individual with a disability," despite the fact that the statutory definition and dominant narratives of disabled people may not reflect the client's own view of her identity. The second instance I explore occurs at the relief stage of a lawsuit, typically when a client attempts to substantiate a claim for compensatory damages for the discrimination she has suffered. At this point, disabled clients are often expected to adopt/portray a "victim" identity, which may be at odds not only with how the client views herself, but also with the vision/philosophy of the disability rights movement.
I examine each of these "moments" in the context of my representation of JR in her disability discrimination lawsuit against a major airline. Specifically, my thesis is that questions of client identity are central to many disability rights cases, and that the legal system, operating on the client through the medium of her own lawyer, may require the client to re-define herself in a way that not only involves significant intrusion into the client's personal autonomy, but which also serves to propagate the stereotypes that underlie much of the oppression and discrimination inflicted on disabled people in our society. Outline
I. Introduction
II. A Case Study-JR
III. Who is a "Person with a Disability"?: The First Identity Crisis
A. Dominant Narratives of People with Disabilities
B. Statutory Definition of "Individual with a Disability" Echoes the Dominant Narrative
C. Disability Rights Plaintiffs Must Reflect the Dominant Narrative to Get to Court
1. Requirement of Meeting the Legal Definition
2. Requirement of Looking Like the Dominant Narrative
D. JR
IV. When Does Discrimination Really Hurt?: Victims, Damages and Another Identity Crisis
A. Requirement of Proving Harm to Obtain Compensatory Damages
B. "Only Victims Get Hurt" (or "If You're Hurt, You Must Be a Victim")
C. Interface of the "Good Disabled Person" and the "Worthy Victim" Narratives
D. JR: Shriners, Strength and Self
V. So What?
A. Adopting an Identity at Odds with Self-Image is Another Violation
B. Adopting Dominant Narrative Undermines the Disability Rights Movement
VI. How Lawyers Can Make It Worse, and Whether They Can Make It Better
A. Power Differences (Even When We're Client Centered)
B. Power Issues Specific to Relationship Between Able-Bodied Lawyers and Disabled Clients
C. Assumptions About Goals (Winning Isn't Everything)
D. Making It Conscious May Make It Better
VII. Conclusion