This is the third in a four part series on the Americans With Disabilities Act (ADA) and the problems with lawsuit abuse. Part one can be seen here. Part two can be seen here. Part three can be seen here.
The provision of the Americans with Disabilities Act (ADA) that lets private parties file lawsuits to implement the benefits and protections of that law is vitally important, because it empowers those of us who have both the incentive to take action and the knowledge of what must be done. Generally, the ADA does not permit private parties to recover money damages, but only to get an order that accommodations be provided.
To make private actions feasible, the ADA lets private parties recover attorneys’ fees from the other side, meaning people who need things like captioning can find attorneys to fight those battles. If the private party prevails, the business pays, not their client.
As I’ve explained, a few lawyers consistently exploit that law by filing multiple lawsuits – dozens and even hundreds. Rather than actually obtaining accommodations, they ask for a quick dollar payout and go away. These so-called “trolls” are only a small minority of ADA lawyers, but they file a stunning proportion of ADA lawsuits. Sadly, though, when the public thinks about ADA lawsuits, they think about those “trolls,” not about the cases that have opened doors for millions of us.
I wrote in the last post about how courts and legislatures are trying to separate the bathwater from the baby, weeding out the “trolls” while not making life too much more difficult for the attorneys and clients who file legitimate lawsuits. And the good news is that many of the legitimate attorneys are working hard to separate themselves from the “trolls” by developing and encouraging “best practices.”
The Disability Rights Bar Association, comprised of over 350 attorneys who represent people with disabilities, has stressed that this is a mission-driven practice, and that while we are entitled to be compensated for actually improving the lives of people with disabilities, we need to be focused on obtaining those outcomes. The best-practices document, which we ask applicants to read and commit to, suggests that lawyers plead their cases with enough specificity to make it clear that the client has actually encountered the claimed barriers. The document strongly discourages settlements that generate money for the attorneys (and sometimes the clients) but do not create any accessibility. (I’m on the Board of Directors of DRBA, and was one of the group that developed the “best-practice” document).
Because so many “troll” lawsuits are filed on behalf of blind and visually limited people claiming that websites are inaccessible, attorneys representing those interests have gone a step farther. Their recommendation, endorsed by the National Federation of the Blind, is that before filing a lawsuit, the business receive a written notice of the problem and a request to fix the problem.
That approach is very much in line with the way Trevor Finneman and I have handled the matters in which we have represented ALDA. We first ask for what we need and explain why we need it. As long as people are willing to work with us, we try to be a resource, and help them find ways to accommodate our needs. We don’t go to court unless the business in question flatly refuses to do what we’ve requested or fails to respond to our overtures.
Unfortunately, I don’t see the ADA “trolls” disappearing entirely. We need to try not to be tarred with that same brush. I think we need to be willing to listen to reasonable voices in the business community – and there are some – and be open to proposals that would protect the legitimate interests of those people while not sacrificing the interests of people with disabilities. And most of all, I think those of us who deplore the tactics of the “trolls” have to show by example that ADA can be used as it was intended – to open doors for people with all manner of disabilities.