IDAP Interview Series: Interview XII with Judge David Szumowski

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In this IDAP interview, we interview Judge David Szumowski. A war veteran, Judge Szumowski lost his eyesight at age 23 when shrapnel from a grenade hit his face during the Vietnam War. Instead of lamenting over this accident, Judge Szumowski displayed tremendous grit and perseverance to overcome the odds stacked against him.

After becoming blind, Judge Szumowski studied law and spent 12 years in the office of the District Attorney in trial advocacy. Thereafter, he was appointed to the Superior Court of San Diego County in California in the year 1998 and served on the court for 18 years until his retirement.

In this interview, Judge Szumowski shatters the myth that a blind lawyer cannot successfully partake in a jury trial as he cannot see the faces of the jurors. While doing so, he provides detailed insights of how he discharged his functions effectively as an advocate and later on, as a judge on the criminal side.

Judge Szumowski also shares with us many life lessons on overcoming adversity, in order to lead a meaningful and productive life.

This interview was conducted by Rahul Bajaj and Anusha Reddy on 29 December 2017. The interview has been lightly edited for clarity.

Image of Judge Szumowski in court

Image from here

  1. You lost your eyesight in 1969 while serving in Vietnam. Could you please describe to us the circumstances that led to your blindness and the precise extent of your visual impairment?

Sure. I was in the US army after graduating from college – the University of Richmond in the state of Virginia. I was the platoon leader of a tank platoon of an army unit in South Vietnam. We were battling some North Vietnamese soldiers. We were fired upon by some rocket-propelled grenades. My face was exposed, so the shrapnel from the grenade hit my face and blinded me at that time. I am totally blind and have prosthetic eyes. This consists of a substance in my eye sockets – something like contacts. I have been this way for 45 years now.

  1. We understand that you enrolled in law school in 1970 with several other blind students. In an interview, you said it was like an experiment, inasmuch as the law school lacked the infrastructure to facilitate the meaningful inclusion of the visually impaired, braille law books, etc. Could you shed some light on your life in law school and the steps you took to overcome challenges flowing from your disability?

I went to the Denvar University School of Law in Colorado. I was one of five blind students there. We were not asked to take the LSAT at that time which by itself was a huge accommodation. It would have been interesting to see how that would have worked out if I had been asked to give the exam. In light of the fact that I was blinded at the age of 23, I had to learn how to use braille then which I did as part of the Veteran Administration Rehabilitation Programme. It was not possible for me to be a fast braille reader, so I could only use it for taking notes using contractions and other shorthand techniques that I developed. There was a recording service for the blind who would record books by sections on a reel to reel tape recorder. For the first year I was provided books in this manner.  I did also tape my lectures on a cassette tape recorder in class. My professors were very accommodative in that they allowed me to record my lectures. I don’t know how the other blind students managed – some of them were born blind, so they were proficient in using braille with a slate and stylus. I used to listen to all my recordings after class and then synthesize all my notes into a second recorder. In this way, I went to law school twice – once when I attended the classes and the second time when I heard the recordings and synthesized them. In my first year of law school, I developed a couple of friendships, so my friends would read out the books to me. At that point I stopped sending the books for recording as I could understand them by my friends reading them to me.

  1. As regards the waiver of the LSAT requirement, our question is twofold: first, was that due to the inaccessibility of the test, and how accessible do you think the test otherwise is? Second, in today’s day and age, with the advent of tech, do you think that such an accommodation would be considered reasonable?

It was not so much a function of them not knowing what to do with us as it was of them not knowing how to administer the test to us. I don’t think any law school today would provide that accommodation, given the emergence of technology. They might give you some extra time, but that is the most they would be willing to do by way of reasonable accommodation. I don’t think blind people should be exempted from the requirement of giving the test. If they want to be considered equal, they should jump through the same hoops as everyone else to prove their ability and competence.

  1. In your FSCast interview, you stated that, after you became blind, you realized that you had two choices before you – either you could wallow in self-pity or utilize the skills that you possessed to lead a productive and meaningful life and You chose the latter and decided to go to law school. In a lot of stories that one hears about successful blind people, they are portrayed as people who found themselves in a deep dark place and decided to adopt a positive attitude which made all the difference. Don’t you think that this narrative is a gross oversimplification of the challenges that being disabled entails and that having a positive attitude is necessary but not sufficient to deal with these challenges?

I was slightly depressed at the time I became blind. Given the age at which I became blind, I knew that I had a good 60-70 years ahead of me. So that is when I decided to move forward. I think having a positive attitude and having an aggressive outlook in pursuing things is important, but to say that that is enough is an oversimplification. You cannot wait for things to happen or for people to bail you out – you have to take steps and demonstrate that you are a competent professional. You need to pursue jobs, internships, go to seminars for legal professionals and showcase your abilities. Sooner or later, someone will agree to provide you an opportunity. You need to portray yourself as someone who is a competent professional and not in the pursuit of pity.

  1. Judge Szumowski with his guide dog.

    Image from here

    Did you find social interaction in college and beyond different and more difficult when you became blind?

At first, yes. You see, I was part of the veteran’s administration. In the US, veterans are generally bestowed with a lot of pride and patriotism and the public holds them in high regard. Further, I got a guide dog when I became blind – I am currently on my 6th guide dog. So the guide dog also acted as an ice breaker (as a non-sequitur – people would sometimes speak to him and not to me). So over a period of time, people began to treat me, not as someone who was blind, but more as someone who did things differently.

  1. In the 1970s, when you were on the lookout for a job in the legal profession, you weren’t able to get employed principally on account of the limitations attributable to your disability. Much like the disabled, female lawyers also found it incredibly hard to get employed back then, even women who later went on to become American Supreme Court Justices, like Justice O’Connor and Ginsburg. Insofar as women are concerned, the only reason why they couldn’t get employed is because of prejudice. Do you think this was true even for the disabled, or would you say that it was genuinely impossible for a disabled lawyer to function as efficiently as their able-bodied counterparts back then?

Insofar as the disabled are concerned, I don’t think it was a question of prejudice – it was more a matter of economic considerations for the employer. They had to grapple with questions like – what will I have to do in order to ensure that this person is able to function in a successful fashion? How will the disabled employee be able to produce the same quality and quantity of work as everyone else? Back then, technology was not what it is today – there was no way to do things in as speedy and streamlined a fashion as you can do them now – you did not have digital technology, screen reading technology or scanners. People with other disabilities, such as the wheelchair-bound, were able to find work even in those days. So you could say that employers had a prejudice in being hesitant to do what they were required to do to employ the blind.

  1. Follow-up question: Insofar as women are concerned, it is clear that they were denied employed on very specious grounds. Would you say that the reasons that you have outlined, as to why the blind were denied employment, were good enough for employers to deny them employment, or do you think that these reasons were just as specious and employers should have had it in them to look past these reasons?

I think that employers should have had in them to discount these impediments and should not have exclusively focused on the bottom line in their financial and economic balance sheet when considering the prospect of employing the blind. Employers back then were not as enlightened as they are now. Insofar as the question of whether disability-based discrimination or sex-based discrimination was worse, in my mind, it is hard to answer that question, but I think the prejudices that the disabled faced were greater.

  1. In 1986, you started working in the District Attorney’s office in San Diego. For the next 12 years, you did a lot of trial advocacy. Can you describe in brief the nuts and bolts of what you did and what accommodations you obtained from your employer owing to your blindness?

Sure. So as I mentioned earlier, I was aggressive and outgoing, in that I went to seminars and let people know that I was a lawyer who was on the lookout for work. While I did not get any money for it, it was very useful. I was fortunate enough to be given an opportunity to serve in the District Attorney’s office in 1986. Insofar as accommodations are concerned, there was a para legal who used to assist me. I was also given a reading machine – this was the time when such machines had just come out. However, with a reading machine, you had to read an entire page at a time. Given that I was doing criminal work, you did not have to read the entire page but only grasp important information on a given page. For this purpose, the sighted reader who used to help me would be able to pinpoint the information that I needed and would relay it to me so that I could make my notes. I also used to use a typewriter on which I could type my notes. I would go to court and argue before a judge on summary motions and so forth. When I started doing trial work, I had a sighted assistance who was very helpful insofar as jury selection is concerned. On the basis of such parameters as body attitudes, demeanour and the like, she would help me in that process. Insofar as witnesses are concerned, I did not have much difficulty in assessing the credibility of witnesses, because that was the job of the jury. I would only ask them questions if they were my witnesses as well as during cross-examination. Most of my cases went before a jury, some went before a judge. In my later years in the DA’s office, I began doing more office work – trying to settle cases, obtaining guilty pleas so that a case wouldn’t go to trial, etc. that is when my role changed from being a District Attorney to being a judge.

  1. Follow-up on his views on Judge Tatel’s comments that the only thing that a blind lawyer may not be able to do is jury trials as you cannot see the faces of the jurors and properly gauge their response. Does your own experience bear this out? And are there any unique challenges that you feel a blind person has to face in conducting jury trials?

I heard Judge Tatel’s interview and was surprised by that comment. I think it may be attributable to the fact that his own background did not entail a lot of exposure to courts but was confined to office work. For me, the greatest challenge was that I had to have a great memory. It started in law school when I had to remember a lot of information for law school exams, then for the bar exam preparation was the key. So I had to focus on developing a memory which I could use to remember how I had to make all my arguments in a logical fashion and to set forth the key points of my arguments. I also did a lot of practice with a lectern in order to make myself visually presentable. Thankfully, I did not have much difficulty in being able to look in the direction of the jury, in their eyes and so forth. I have also been told that beyond a point people were unable to make out that I was blind. My prosthetics were movable to some extent, so I could look to my right or left and look at people even though I couldn’t see them. So, for me, the key was memorization and preparation.

  1. You were appointed to the Superior Court of San Diego County in California in the year 1998. Forgive our ignorance, but can you please tell us where a superior county court fits within the state judicial hierarchy, and what kinds of cases come up for the consideration of the court on which you served?

I was appointed to this court in 1998. It was called a municipal court at the time, but the year after I became a judge, it got consolidated into a superior county court. It was the court of first instance after which we had the appellate court and then the supreme court of California. The cases that I heard were criminal. That was what I had done for 12 years until then, so these are the kinds of cases that were assigned to me. They included small claims work, motion hearings and landlord-tenant disputes. Then they finally settled me into what they call an arraignment court. That is the first judicial appearance for people who have been charged with a crime. Such proceedings are instituted by the district attorney. The accused is either in jail or out on bail. Their lawyer is someone they have hired or someone who we have appointed, as they cannot afford a lawyer. The accused would plead not guilty at the court appearance – I would look at their charges, their prior record, listen to some of the facts from the Defence Attorney, hear anything positive that the defence might have to say and then decide if bail should be granted, based on the nature and seriousness of the charges. Then that case would move on to another court for final disposition. In case it cannot be resolved at that stage, then a hearing is held and some evidence is considered. Finally, if it cannot be resolved even at that stage, then it goes to trial. It was not my job to preside over trials. I was on the arraignment court almost throughout the duration of my career on the bench. Another component of my job was dealing with people who contravened the conditions of their probation. I had to decide if the probation should be revoked or if their misdeed should be exonerated if they gave an undertaking to lead a law-abiding life and so forth. We also had other courts which decided civil lawsuits, family matters, probate matters, etc., but I did not adjudicate upon those kinds of matters.

  1. Back in 1998, screen reading and other assistive technology was in its infancy. Could you kindly let us know how you perform tasks such as perusing party submissions, conducting research and delivering judgments?

I had a reader who could zero in on the things I needed to know and lawyers who assisted me with research. I didn’t use scanners and the like extensively back then. As technology progressed, things became easier.

  1. During your 18 years on the bench, how did the advent of adaptive technology impact your modus operandi?

I started using JAWS to read everything independently. On account of the digitization of judicial records, I was able to conduct research independently and find out what I wanted. I didn’t use, to a significant extent, the pearl camera scanner or any other scanner. While I still had a reader like before, I was able to do a lot more work independently. I think the advent of adaptive tech marked a great leap forward for all of us in the blind community, in that it enabled us to do things with greater efficiency and accuracy. In other words, we could do everything that an able-bodied lawyer could do, albeit in a different way.

  1. How important, in your view, is it for older legal professionals with disabilities to learn how to use adaptive technology?

I think if you don’t keep pace with the times and learn to be technologically proficient, you will be left behind. In all fairness to older legal professionals, if they have reached their comfort zone in the ability and techniques that they use, then I have no quarrel with that. However, if you are a younger legal professional, not learning adaptive tech will put you at a disadvantage vis-à-vis your disabled counterparts who do know how to use this tech and are therefore more efficient and quicker. And learning this technology – whether screen reading software or scanners – isn’t that hard. It does require some effort and perseverance, but it will greatly benefit you if you are willing to make the effort.

  1. In light of the fact that you were heavily reliant on sighted individuals during initial stages of your career, did you ever face the problem of the individuals assisting you not being up to the mark, resulting in poor output?

I actually did not. I put a lot of effort into hiring people who were proficient and capable in doing the job assigned to them. The court on which I served also hired top-notch lawyers who knew how to conduct research. I only hired two people during my career on the bench and one person during my tenure in the DA’s office. If it didn’t work out, I would have made a change, but I didn’t have to worry about that.

  1. As a jurist you must have heard and handled a large number of criminal cases. Evidence presented in criminal cases is typically visual (photographs, medical and forensic evidence) etc. in nature. What coping strategies did you adopt to grasp and effectively utilize this type of information? Did the defendants or lawyers arguing before you ever express reservations about a blind judge deciding their case?

Let me answer the second part of your question first – no, they never expressed any reservations. You have to remember that I served in the District Attorney’s office for 12 years before becoming a judge. Although San Diego is a big town, the criminal bar was fairly small. So all the lawyers and judges knew each other. We never had any animosity towards each because we knew that what we were doing was a business. We may have been on different sides in different cases, but we knew we would see each other time and again, so it was best for us to get along with each other. When I was in the DA’s office, everyone, including judges, was very accommodative of my needs and when I became a judge, nothing changed. They all appreciated my fairness, my ability to understand the facts and deliver a fair ruling. They wanted me to succeed – I was only the second blind judge to be appointed to the bench in the state and only the 12th or 13th nationally. Judge Tatel had already made his mark after being appointed by President Clinton. Insofar as handling evidence is concerned, it was never much an issue. I could grasp forensic evidence after it was described to me. Similarly, for photographs, typically, someone would describe to me what it meant and we would run the description by the Defence Attorney to see if they agreed with that description. In case they did not, I would offer them the option of referring their case to another judge. Otherwise, I would ask them to then make their argument to the jury. As a matter of fact, not much turned on whether I was able to grasp what the picture showcased – it only mattered if it was in some way defamatory or prejudicial. Otherwise, after I determined that the picture was admissible, the lawyers would make the arguments before a jury as to what the picture meant.

  1. Would you concede, therefore, that there was some additional effort required to make things accessible to you? For instance, in order for you to be able to appreciate a photo, the visual information had to be conveyed to you in textual form and the textual description had to be undisputed. The reason I ask that is because in India, the moment the issue of having to make that additional effort comes in, employers express their hesitation in hiring a blind person.

I would say that they were required to ensure that I was provided a textual description of visual evidence. But I provided the parties the ability to go to a different judge in case they had a disagreement about the correctness of the description. So it was not for me to make that decision.  And, ultimately, as I said, it was the jury which had to make determinations as to visual evidence. Finally, it never so happened that the parties disagreed on the correctness of any textual description.

  1. Can you outline the pertinent and significant differences that exist, in your experience, in the challenges that a judge who is blind has to face while serving on an original court as opposed to an appellate court? Would you agree that the latter is more accessible than the former?

I think the primary difference is the speed at which things happen. On an original court, things move far more quickly. The rulings are instantaneous. You have a jury in the box, witnesses on the stand and lawyers before you making objections. So you have to rule quickly. You really don’t have the option to sit there and ponder about weighty issues. Everything is set up in such a way as to enable cases to move along quickly, given that the cases are so many and the judges so few.

On an appellate court, on the other hand, you have a lot more time to sit there and think about issues. There is a lot more research that goes into answering questions on narrowly focused issues and considering whatever errors allegedly crept into the lower court’s ruling. Your focus is confined to those errors; you don’t have to conduct a retrial. You can use adaptive tech far more effectively. You have a lot of time to craft your responses to the questions that come up and to fine-tune them. You don’t have the same time pressures that you have as a trial judge. So I think it is much easier to be a blind judge or attorney at the appellate level simply because you are not under the pressure of snap decisions and quick responses.

  1. In India, in some States, blind persons are not eligible to become judges because of their disability. From your experience of being a judge for 18 years, what is your opinion on this? Did you face any resistance from the court or your fellow judges when you were appointed a judge in 1998?

I am surprised that some states permit this and some don’t. I would submit that the Indian society is not very enlightened when it comes to the ability of blind people to satisfactorily discharge their responsibility in various endeavors. I would like to ask any judge who is currently serving in India: if you went blind while on the bench, and were able to efficiently discharge your responsibility before this, how would you feel if told that you can no longer continue as a judge, even if you are able to perform your functions with some amount of retraining and ability to use adaptive tech? In that sense, I think there is some room for improvement in your system.

  1. Follow up question: While imposing restrictions on disabled people becoming judges, Indian courts have espoused the view that someone with an orthopedic disability can be a judge, but a blind person cannot. Do you think such a classification between disabilities inter se has any rational basis? In fact, in one state, the rules also draw a distinction between someone with an upper body and lower body impairment. So if you have a lower body impairment, only then are you allowed to become a judge, not if it is an upper body impairment.

No, I don’t think that the distinction is founded on a rational basis. I think such a distinction stems from the mistaken belief that if you cannot see or hear, you are not able to think clearly and would be unable to perform all other functions effectively. People tend to think that if you are blind or deaf, that somehow means that you are not smart or competent enough – such a belief is alive and kicking in many circles still. However, people believe that if you are in a wheelchair or don’t have a leg that does not impact your ability to perform all your other functions and deal with different life circumstances. I think that is a very unfair characterization.

  1. As someone who became blind in his mid-twenties, what advice would you give about life to other people who were not born with a disability but became disabled later in life due to accidents or diseases? Also, you stated in your FSCast interview that you weren’t resentful about the fact that the Vietnam war left you disabled. We were wondering if you could comment on what helped you move forward and how you came to terms with your disability in such a graceful fashion.

I signed up for the army through a programme that was offered in college and ended up serving in Vietnam. At that time, I believed that what our country was doing was correct. So I was prepared to do what I had to do, go where I had to go and to face whatever consequences might follow. At the age of 23, after I lost my sight, I could choose to be angry for the rest of my life, but I realized that that would not help me move forward and that people would not want to be around me. I went to law school and while I struggled initially for a few years, things started falling into place for me after a few years. Looking back and being resentful wasn’t going to help me. The only way to get ahead was to look ahead and to try and be the best I could. To realize that an unfortunate situation was just that – a bump in the road and that I could smoothen out the path towards a successful life. To those who get disabled later in life, they should pause and reflect on how fortunate they have been. I was very fortunate in having a supportive family. I have a very supportive wife whom I met in the 70s and have had some great breaks along the way in my career.

The advice that I would have for the disabled is: they should never lose hope. They should seek out opportunities and not sit there and wait for opportunities to come to them. If you want to feel sorry for yourself and expect others to feel the same way, that is not going to happen. In today’s day and age, no one has the time to feel sorry for you. People have their own issues, problems and demands on their time. So you should be able to show that you want to remain productively engaged despite your limitations, that you have grit. They should seek out organizations and opportunities, acquire different education if they need to, but not just sit there and let themselves get wasted.

  1. Would you agree that one has to be exceptional at everything in order to succeed if you are disabled and to negate the impact of your disability?

I think that it is your overall personality that matters. If you aren’t good at socializing and expressing yourself clearly and then have a disability on top of that, it will be much harder for you. People are generally more attentive to those who are outgoing. So if you were not that way before you became disabled, things will be much harder for you after you acquire a disability.

  1. Finally, it would be no exaggeration to state that life is a disabled lawyer is profoundly different now from what it was two decades ago. Going forward, in the next two decades, what kinds of changes do you foresee in the way disabled lawyers function and what advice would you have for them in order to ensure that they are perceived as assets and not liabilities by the organizations of which they are a part?

For those considering studying law or are in law school, I would advise them to pursue internships, participate in legal clinics – in other words, get their hands dirty with the kind of work you do in the legal profession. This gives you a sneak peek into what lies ahead. Second, it gives you an introduction into the legal profession, in helping you go to court, meet clients and meet able-bodied lawyers. Learn to stay abreast with technology, don’t run away from it.

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The IDAP interview series aims to solicit actionable insights from lawyers with disabilities on the strategies adopted by them to excel in their field. The series also seeks to educate and increase awareness within the legal fraternity, with the ultimate aim of fostering meaningful dialogue on reasonable accommodation for persons with disabilities. If you have any comments/feedback on our series or if you would like us to interview a lawyer, please reach out to us at [email protected].

You can read our other interviews here.

  1. I’m privileged to be a friend of Dave, and can attest to his positive and constructive attitude. He doesn’t let his handicap interfer with enjoying lfe. He is a regular member of our foresome in golf and hosts poker using braille cards.

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