We often think of a fair trial in terms of having an impartial judge and jury, effective assistance of counsel, the opportunity to present evidence and witnesses, and the ability to cross-examine the adversary’s witnesses and present rebuttal evidence. However, trials are much more complicated than the general expectations.
Fair trials don’t just happen. Judges and attorneys exercise great care to ensure fairness in trials. In civil cases, attorneys engage in what we call the discovery process to gather evidence relevant to each individual case. Behind the scenes attorneys file pre-trial motions that judges must rule on before a trial. Those motions may be to exclude, include, or limit pieces of evidence or testimony. Attorneys and judges work on the jury charge that will be read to the jury at the close of all evidence. In other words, they work on the instructions that will be provided to jurors before they deliberate to ensure that they render a verdict based on evidence presented in court and the applicable law.
There are a number of things that happen before a case is finally handed over to a jury. This is all just to say, that the things we generally expect to ensure a fair trial are not automatic.
Ensuring a fair trial can be more difficult when a party or key witness suffers from an intellectual disability because they have difficulty thinking or communicating. It may also take them longer to speak or process information. This can make presenting information, whether at a deposition or during trial, more challenging. But, it is important to remember that individuals with intellectual disabilities are entitled to the same justice system, and JUSTICE, as those suffer from physical disabilities or no disabilities at all.
When an intellectual disability creates difficulty for a client when testifying, it is crucial that the employee’s attorney take great care in preparing for their client’s testimony. This includes preparing the client for not only direct examination, but also cross examination.
Despite the care an attorney may exercise in talking to their client and communicating with them on a day-to-day basis. Those communications are nothing like the stress and pressure created by a deposition or trial. This is particularly true, when the opposing side may not exercise the same care when cross examining your client or may even attempt to use the employee’s known disabilities to their advantage by attempting to confuse them or in some other way make the jury question the credibility of their testimony.
Therefore, the employee’s attorney may need extensive preparation for not only for their client, but also themselves. This preparation may include finding and utilizing valuable resources to best prepare the attorney and the client. Preparation may require consultation and sessions with an expert. It may also require practice under simulated trial circumstances. It is important to learn the way your client should be addressed, what questions he or she should and should not be asked, and how to best frame questions for maximum comprehension. Aside from finding the right assistance, the attorney must be patient. This is as equally true when sitting with the client in the office as it is when questioning them as a witness in court.
If you or someone you know suffers from an intellectual disability, and have faced discrimination or retaliation at work, our attorneys are available for consultation. Having the courage to fight for your rights will be stressful, but when employees are brave enough to do so, they need to know that they have a team that is supportive and on their side.