In case of a lawsuit involving a person with disability, you can either hire a lawyer yourself, engage an NGO for a legal intervention or seek governmental help. Here are some tips on what you should keep in mind when you want to avail either of these options.
How can you find a good lawyer to represent you?
Appointing a lawyer is a difficult task, and like in the case of most professionals, it often goes by word of mouth. If you are looking for a lawyer with a specific specialization, it makes sense to use the internet to find lawyers who have worked on similar cases even if it hasn’t been for persons with disabilities specifically.
For example, lawyers who have taken up cases under the Right to Education Act are at least familiar with the law, and just need to acquaint themselves on the specific concerns of persons with disabilities.
Many people believe that senior experienced lawyers are a must for a successful litigation. This is not necessarily true or feasible.
Traditionally, potential clients were not supposed to contact ‘Senior Counsels’ directly.
A senior counsel, who is a lawyer so designated by the High Court, is usually briefed by a junior counsel on behalf of the client. Therefore, what is most useful is to appoint a good junior counsel who is well versed with the subject matter and who is committed to the client.
When there is a crucial argument or stage where a Senior Counsel’s reputation and experience would be useful, the junior counsel can efficiently brief the Senior Counsel.
Some things to keep in mind while meeting a lawyer
(i) You can definitely meet a lawyer to assess your comfort level with them and confidence in their abilities. You can have a preliminary meeting and bear the consultation charges for their time, but it is important to see if the lawyer has the skills and empathy that you think are important for the case. Remember, cases go on for years, so this will not be a brief association.
(ii) Seek clarity on issues like fees payable, procedures involved, and the options available. Sometimes, litigation is a last resort, and the lawyer may advise writing a legal notice or approaching the opposite party through mediators, which you can consider. There are also alternate dispute resolution methods that are gaining popularity like arbitration, conciliation and mediation, that you can also ask about.
(iii) In many countries, clients and lawyers can agree that a percentage of the damages awarded will be given to the lawyer as their fees. This is not permitted under Indian law.
(iv) Even if it’s the first meeting with the lawyer, take all your papers so that you are in a position to answer questions the lawyer may have. You should also take any research that you have done on the subject.
(v) Lawyers will and should have a grasp on the law but one cannot expect them to have expertise on everything. So if the issue is accommodating a student with autism, materials that talk about accommodations for students with autism will be useful to help appraise the lawyer of the focus group they will be working with.
(vi) Try to understand if your lawyer has the specific qualification to deal with certain cases. For example, to file a case in the Supreme Court, one needs to be an ‘Advocate on Record’. Not all lawyers have this qualification, and many of them rely on Advocates on Record for filing and other related issues. Feel free to ask questions about the Advocate on Record, especially regarding their fees and experience.
When you file your case in Court, one of the accompanying documents is a ‘vakalatnama’. This authorizes the lawyer to appear in the matter on your behalf.
What can you do if you can’t afford to pay court fees or appoint a lawyer?
The Legal Services Act of 1987 established Legal Services Authorities at the District, State and National Level. In case of persons who are marginalized and cannot afford to go to court, they can approach this authority to enable the appointment of an advocate, payment of court fees, process fees, typing fees and other such requirements.
In Delhi, the following persons are allowed to apply for legal aid:
(i) A person certified as SC or ST
(ii) A victim of trafficking or begar
(iii) A woman or child (regardless of family/personal income)
(iv) Persons with disabilities
(v) Victims of mass disaster/ethnic violence caste atrocity/flood/ earthquake or industrial disaster
(vi) Industrial workmen
(vii) Persons who are in custody/ protective home/ juvenile home/psychiatric hospital/ psychiatric nursing home
(viii) Persons with low income (annual income of less than Rs. 1,00,000
(a) Senior Citizen (Annual income less than Rs. 2 lakh)
(b) Transgender (Annual income less than Rs. 2 lakh)
The legal services authority has a toll free helpline-1516. The legal services authority is located at Central Office, First Floor, Patiala House Courts, New Delhi – 110001 [Phone number 011-23383014] but there are also offices at every District Court complex and the High Court.
If you are unfairly denied legal aid, you can appeal to the Chairman of the Authority/Committee on denial of grant of legal services. If you are unsatisfied with the lawyer appointed for you, you can lodge a complaint at the District Legal Services Authority Office under which the appointment was made.
If you wish to file a civil case or if you are defending yourself in civil or criminal proceedings, you may approach the legal services authority.
Things to keep in mind if you approach an NGO for legal assistance
(i) NGOs working on legal interventions are filling an important gap between important cases and lawyers that have the expertise to deal with matters especially the ones relating to civil rights.
(ii) However, before engaging such NGOs, it is worth asking some questions to the NGO, for instance:
(iii) Who is funding this litigation work, and whether the funding is sustainable. For example, if the project, which has received funding, is a five year project, what happens if the litigation outlives the funding?
(iv) Does the NGO work with engaging Senior Counsels, and who are the Senior Counsels that they have worked with in the past?
(v) What is the kind of training on disability specific issues and sensitization on various impairments that the lawyers on this project have received?
(vi) Often, NGOs run projects that focus on ‘strategic litigation’ – which involves taking up test cases to the courts to seek recognition of rights in order to create precedent. In such projects, funding covers the engaging of lawyers and costs associated with the case. Often, NGOs want to focus on the most straightforward cases that are believed to be a potential success so as to create an impact. Therefore, asking for the manner in which these strategic litigations are identified is a good idea.
(vii) Asking about the scope and role of the family/individual in determining the strategy of the case is useful, because that is where the primary decision-making should lie.
(viii) Will the documents relating to the litigation remain confidential or will they be used for further advocacy, and as primary stakeholders, are you comfortable with this?