Students Win in Federal Appeals Court – With Argument Partly Via Sign Language

A University of Virginia School of Law student using American Sign Language and her classmate successfully argued on behalf of a client before a Richmond-based federal appeals court.

Appellate Litigation Clinic third-year law students Jehanne McCullough, who is Deaf, and Nina Oat presented oral argument virtually with interpreter Kate O’Regan before the U.S. Court of Appeals for the Fourth Circuit on Sept. 9. The court ruled in favor of their client Jan. 4.

But in simply making her arguments the way she did, McCullough might have set a new milestone.

“To the best of my knowledge, we have previously had arguing counsel who have used sign language or closed captioning to hear what is being said, but we have not previously had argument presented through a translator,” said Fourth Circuit Clerk Pat Connor, herself a 1981 graduate of UVA Law. “I observed the argument, and it was quite impressive!”

To help prepare O’Regan, McCullough had her interpret during all moot courts and related meetings to familiarize her with the case. McCullough also typed up possible questions and answers in advance and videotaped herself for O’Regan.

“American Sign Language and English are completely different languages,” McCullough said. “Translating from ASL into English is an art, a complex process requiring conveying concepts and meaning, not simply voicing words for each sign. It is possible for translations of the same sentence to end up subtly different from each other.”

O’Regan said McCullough’s efforts helped her work on pacing, pronunciation of relevant legalese, names of precedent cases and being comfortable speaking the arguments in a persuasive way as her student intended. O’Regan added that fellow interpreters Jen Diggans and Rene DeVito were part of her “dream team.”

“I feel like someone who is humbled to be surrounded by brilliant student lawyers and honored to work with Jehanne, who is so gracious with her patience,” O’Regan said.

Oat said professor Scott Ballenger, the clinic’s director, suggested that they record themselves answering questions the judges were likely to ask, which she found helpful for an argument held over Zoom in particular.

Client Willie James Dean Jr., a prisoner housed in North Carolina, was hospitalized after being assaulted in a broom closet after twice trying to head-butt a corrections officer. He filed a civil rights claim against the officers, alleging excessive force in violation of the Constitution’s ban on cruel and unusual punishment.

The appeals court ruled unanimously to reverse the District Court’s summary judgment to the officers, concluding, “A reasonable jury crediting Dean’s account could find that the officers used force not to protect themselves, but to retaliate against Dean, in violation of the Eighth Amendment.”

Ballenger said the case was assigned midsummer for September, so he reached out to volunteers to present oral argument from a new crop of clinic students. McCullough and Oat spent August prepping, not knowing until six days prior when arguments would be scheduled. 2020 UVA Law graduates Molly Cain and Read Mills briefed the case during the previous academic year and prepared their successors.

“When [Cain and Mills] acted as judges during our moots, their command of both the facts and the law was invaluable in identifying possible questions as well as answers that needed to be fleshed out,” Oat said. “Outside of argument, they made sure we knew they were always available to help.”

This was McCullough’s first oral argument, and she was unaware of any regular strategies that Deaf people who use ASL follow to prepare for their oral arguments. “I simply prepared in the way I thought was best,” she said.

“Looking back, I think it was a good approach.”