Finding the right lawyer is important no matter who you are, but not every lawyer is comfortable enough with their own self to advocate as ardently for LGBT clients as they do for everyone else. That shouldn’t be true, but it is a reality.
You deserve an attorney that respects you, listens to you, and advocates strongly for your interests. You are a person and you get hurt just like everyone else.
Representing Transgender and Nonbinary Clients
At Herman & Wells, we promise to work just as hard on your case as every other client because you are as special to us as every other client. You shouldn’t have to worry about protecting your medical history regarding your transition during a case, or what affect your gender identity or sexual orientation will have on a case. You should feel confident that your lawyer is defending and advocating for you.
We have represented transgender clients before and have experience dealing with the issues unique to your community. One of our transgender personal injury clients told us he’d been worried right from the start about finding a lawyer. He wanted to know if the law firms he was researching had represented transgender people, if the lawyers would understand where he was coming from, or if the lawyers had some underlying prejudices.
We want you to know: We’re here for you.
We have sat down with clients and made the call of whether or not to ask the court to redact prior medical records indicating our client used to be of a different sex or to “turn into it” and ask the jury panel during jury selection whether they would still be fair and impartial even though our client used to be of a different sex.
Experience does set us apart.
Even after finding a lawyer they trust, transgender, nonbinary, and genderqueer individuals in personal injury cases face decisions and other issues that cisgender clients don’t. Medical history issues, jury biases, even accurate pronoun usage in court documents — we acknowledge and address with you every challenge you and your case might face.
Advocating For The Transgender Community
Pronouns matter and parties to cases sometimes use the wrong pronoun on purpose. The U.S. Supreme Court has seen this kind of dispute before, in a case that was filed by a transgender man with the word “his” in the title (“Gloucester County School Board v. G.G., by his next friend and mother, Deirdre Grimm). In their own briefing, some opponents tried (unsuccessfully) to change the title of the case to include the word “her” instead of “his.”
When we file a lawsuit, the pronouns and other gendered words in our papers match our client’s gender identity. This should carry forward through the case into how the opposing lawyer, the judge, and witnesses address our client. But that doesn’t mean that the lawyer or insurance company we’re up against won’t fight about this issue, whether it’s because that lawyer doesn’t understand the situation or because the insurance company is trying to get a tactical advantage by making the client uncomfortable or trying to stir up bias in a jury.
We don’t employ those tactics, and we’ll work to oppose them when others do.
Several federal courts within the Eleventh Circuit (the federal court of appeals circuit in which Florida is located) have dealt with pronouns for trans people in a very straightforward way:
“As D.B. presents to the world as female, the Court will utilize feminine pronouns to refer to her throughout this opinion.” D.B. v. Orange County, Fla. (Middle District of Florida)
“Plaintiff is transgender. The Court will refer to Plaintiff using the feminine pronoun as Plaintiff identifies with the female gender although biologically male.” Green v. Hooks (Southern District of Georgia).
“Because Plaintiff alleges that she is a transgender female and uses female pronouns to refer to herself, the Court will use those pronouns as well.” Bayse v. Holt (Northern District of Georgia)
Judges also are held to a code of conduct that requires them to treat all people with respect and dignity. Some judges have attended conferences where classes were held aimed at educating them on how to address transgender individuals in the courtroom.
We’d like to think that using correct and respectful pronouns wouldn’t even be a dispute and that every judge would understand the issues without needing explanation. Although we always hope for the best, we are prepared to educate judges in our cases and argue for our clients.
Medical Records & Medical History
Personal injury cases involve lots of medical records, but that doesn’t mean that a jury will get to see every medical record for your whole life. During the discovery phase of a lawsuit, the other side, which is usually an insurance company lawyer, has the right to request documents that will help them find evidence relevant to the case. If they try to cast a net too wide, the court can narrow the requests to only the relevant documents.
At trial, there are even more limitations on the documents that are provided to the jury. The documents that are entered into evidence must be relevant to the issues in the case, helpful to the jury, and not overly prejudicial to one of the parties. In other words, if there’s something in a record that makes it so the jury isn’t going to be fair to both sides, then that record may not be allowed into evidence or part of it might be redacted.
When it comes to the transgender community, medical records can be used by the other side to create bias in the jury. But, only if no one steps in to curb their requests for records and defend against irrelevant medical records, such records pertaining to transition, being entered into the case record. As we prepare for trial, our client is part of the decision-making process on what, ideally, the jury should and should not see.
Voir Dire – Searching for Biased Jurors
Before every trial starts, we go through a process called “voir dire.” This is our chance to ask the potential members of the jury how they feel about different topics. This lets us find out if someone is biased and can’t be fair. If the court determines that a potential juror can’t be fair to one side, that person is not allowed on the jury. We are also allowed to “strike” or get rid of a few potential jurors for whatever reason we want, and we usually use those “strikes” for people who didn’t openly say they were biased, but who we are concerned would not treat our client fairly.
In some cases with LGBTQ* clients, that means taking time during voir dire to ask potential jurors how they feel about queer and transgender people directly, and asking about topics in the news that might reveal an underlying prejudice, like bathroom bills, same-sex marriage, or transgender people serving in the military.
Open Dialogue Combined with Advice
Every client is different and there is no cookie-cutter approach to handling personal injury cases. We think the best way to handle any source of worry or stress is to talk about it with our clients and make a plan for how to address them within the case.
We believe it’s important that we present a true and authentic story about how an injury or a death has impacted our client’s life. That’s how we are able to convince insurance companies to settle cases for fair amounts. It’s also how we are able to persuade juries during trials to enter verdicts in amounts that are fair to our clients.
As we get to know clients, we learn how their lives have been impacted and what facts we need to present to tell that story, and what facts aren’t relevant to the story. We also talk with our clients about what they are comfortable sharing. And we give our advice on how we think the case should go to get the best result possible for our client.
This open dialogue, built on trust and privacy, is sacred to the legal profession, and it is critically important when representing transgender clients. You need to know you can trust us; we need to know what information may arise that needs to be protected or presented in a strategic manner that better represents your side of the story.
Every person who has been hurt in an accident or had a family member killed is entitled to their day in court, and every person who goes to court should be treated fairly and with respect. We believe it is our duty to fight for each of our clients equally and advocate for a just recovery for a personal injury or wrongful death.
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