This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
KAYLE HILL: Thanks for joining us. I'm from Brown, Goldstein, Levy. I'm a white woman with, I don't know, short, medium length brown hair, blue glasses. I'm wearing a black mask.
And, Anthony, you want to --
ANTHONY MAY: Good morning, everybody. My name is Anthony May. I use he/him pronouns. I'm a white male in my 30s, not for long.
Short dark brown hair, a gray suit on with a light blue shirt and a dark blue tie with orange and blue flowers on it. I'm a partner at Brown, Goldstein, Levy.
I'm very excited to talk to you all today.
TIM ELDER: My name is Tim Elder. I'm he/him.
And I am a male in my 40s-ish, with a light blue trustworthy shirt on, and incredibly attractive persona.
(Laughter)
ANTHONY MAY: Great.
(Laughter)
KAYLE HILL: So we are here to talk about litigating effective communication cases, which Anthony and Tim both have experience with.
ANTHONY MAY: And Kayle.
KAYLE HILL: Tim had a case, Martinez v. County of Alameda, which was regarding a small business owner who was blind being denied accommodations to fill out and file paperwork for her small business by county clerk's office in California.
Anthony and I had a case, Hernandez v. Enfield Board of Education, which was regarding an autistic, Deaf woman elected to public office and repeatedly denied accommodations.
Both Tim and Anthony had success in their respective cases, but let's start at the very beginning.
We'll start with Anthony.
Anthony, how did your firm sort of come across this case? How did you get involved?
ANTHONY MAY: Yeah, so the case actually started back in -- the discrimination occurred in 2015 to '17. Case came to us at BGL in 2019. My colleague, who I think many people in this room know, Eve Hill, got a call from the Autistic Self Advocacy Network about a case that came across their radar, an individual who went to Disability Rights Connecticut, about some discrimination she faced. She contacted Assan and Assan contacted Eve and brought us into the case to help litigate it.
I was a lowly associate at the time, two years in at the firm, had no idea what I was doing. Eve said, here you go, have fun. And so I was really given an opportunity to kind of take the case from its very inception all the way through trial verdict and post-trial petition. So it was a really great experience. I'm looking forward to talking about it today.
KAYLE HILL: Tim, how did your firm become involved with your case?
TIM ELDER: Interestingly, the plaintiff knew of our firm and was texting us during the incident while it was occurring. So you never know what your text -- and those came up in litigation. There was mention of somebody's privileged text messages.
But rather than me try to talk about the case, I'm going to just play Exhibit A, which was a part of the trial, so you can, basically, get a sense of what the case was about. Do you want to?
KAYLE HILL: Let's do that now.
TIM ELDER: It would be better than me trying to describe it.
(Audio clip played)
LISAMARIA MARTINEZ: Is this is okay with you?
LAURA: Actually, no. It's not okay with me.
LISAMARIA MARTINEZ: It's not okay?
Okay. Well, then I'll shut this off.
LAURA: I'm here to help you.
LISAMARIA MARTINEZ: So I'm trying to file this paperwork.
LAURA: Okay.
LISAMARIA MARTINEZ: And, apparently I misunderstood the form. I filled it out to the best of my ability and apparently I need to fix it. So I asked Angelina if she could assist in filling it out for me, because I am a person with a disability. I cannot read this print.
LAURA: Okay.
LISAMARIA MARTINEZ: I need someone to accommodate me, reasonably.
And so it sounds like an easy fix, a very quick fix. I've been here since 1:19. So really, I just need some assistance so that I can submit this and pay and walk out of here.
LAURA: So is there anyone with you or you're here by yourself?
LISAMARIA MARTINEZ: No. I usually don't have someone following me around.
LAURA: I'm not saying following around, but in situations like this --
LISAMARIA MARTINEZ: I don't usually walk around with someone who can assist me. In general, I'm a pretty independent person. I'm a mom of three kids.
LAURA: So you are saying it's an LLC for your business name?
LISAMARIA MARTINEZ: Yeah. So I was a little confused because I thought that ... So I guess it's the section C1, 1C?
LAURA: The registrant? It's like the owner.
LISAMARIA MARTINEZ: Yeah, so that's me. It's just me. I'm only one person in the whole business. And so I guess I need to put the company's name in there instead of me?
And I guess that's all I have to do and check --
LAURA: Also, you're doing business as?
LISAMARIA MARTINEZ: Yes.
LAURA: It's contradicting. So the only thing is because this is a business form and it's a legal form, we do need the business owner to fill it out.
LISAMARIA MARTINEZ: Yeah. So that's me.
But I cannot physically fill it out because I can't write print. I can't read print.
LAURA: Okay.
LISAMARIA MARTINEZ: So as a person with a disability and as a government entity, Title II of the Americans with Disabilities Act says that government entities need to assist people with disabilities with auxiliary services. That includes sighted assistance. I've asked for this multiple times, and so all I need is you or anybody to help me fill this form out correctly, and it sounds like a very easy fix so that I can file this paper.
LAURA: Well, because it is a legal form --
LISAMARIA MARTINEZ: Okay, could you tell me what legal authority tells you that you can't help me?
LAURA: This is a document that's signed -- the person filling it out, it's basically signing under penalty of perjury.
LISAMARIA MARTINEZ: Yes, I understand that.
LAURA: The information is true and correct.
LISAMARIA MARTINEZ: Yes, and if you assist me and read back what you write, I can say --
LAURA: I'm not the business owner and for anyone in this office to fill in out --
LISAMARIA MARTINEZ: Could you tell me what legal authority tells you you cannot assist a person with a disability?
LAURA: It's a different assistance.
LISAMARIA MARTINEZ: No, it's not different. The ADA applies to you.
LAURA: So what I could do is give you an envelope and then go back (indiscernible) and then you can get it corrected and then you can mail it to us.
LISAMARIA MARTINEZ: No. I can get it corrected here if you help me. I still have to have someone help me fill this out. You don't understand.
Whether I do this at home --
LAURA: Because it's a legal form --
LISAMARIA MARTINEZ: Okay. Then please write a note for me in writing, denying me --
LAURA: No, I could do a rejection notice for you.
LISAMARIA MARTINEZ: No, I need a letter from you.
LAURA: -- this form for you.
LISAMARIA MARTINEZ: That would be great.
LAURA: But it's a statement that has to be signed under penalty of perjury.
And then I can give that to you with an envelope in order to return it, and then I could put a name on it so that it gets expedited.
LISAMARIA MARTINEZ: Okay.
LAURA: Or you can have someone --
LISAMARIA MARTINEZ: Have someone help me fill it out? Like you? This is what I'm asking. If you read -- look, if I tell you what to write and you read back what you wrote me, I've already signed this form.
LAURA: There's some documents that are not of this legal nature.
LISAMARIA MARTINEZ: Okay.
LAURA: Correct?
LISAMARIA MARTINEZ: What do you mean there are documents that are not legal?
LAURA: There's other applications. There's other forms to request a copy, which is you're not signing under penalty of perjury. Those type of things we can help you with.
LISAMARIA MARTINEZ: So you're telling me the legal authority you're quoting is that penalty of perjury is preventing you from assisting me.
LAURA: I'm saying this is a legal document.
LISAMARIA MARTINEZ: Yes.
LAURA: That is to be filled out by the business owner; okay?
LISAMARIA MARTINEZ: Which is me.
LAURA: Or whoever they -- like if they have someone --
LISAMARIA MARTINEZ: Which is me, and I'm designating you. I'm asking for a reasonable accommodation, Laura.
LAURA: But this is --
LISAMARIA MARTINEZ: And the ADA under Title II requires government entities like Alameda County to assist people with disabilities. So if you are going to deny helping me, I need you to write a letter saying that you refused to assist me.
LAURA: I'm not saying that we're refusing --
(Overlapping voices)
LISAMARIA MARTINEZ: Yes, you are.
LAURA: No. We're telling you --
LISAMARIA MARTINEZ: Then why won't you help me fill out the form?
LAURA: What is missing on this form --
LISAMARIA MARTINEZ: Yes, and we can write it together.
LAURA: Okay. So we do it with every person that has something wrong with this document, we give them a letter saying this is what's missing.
LISAMARIA MARTINEZ: Yes.
LAURA: Or it's incorrect.
LISAMARIA MARTINEZ: Yes.
LAURA: And that person corrects it.
LISAMARIA MARTINEZ: And today, standing here, we can fix it.
LAURA: So that's the same concept is that we do tell the person, the owner what's incorrect on this form and then they will get it corrected.
LISAMARIA MARTINEZ: Would stand here and correct it if they could see.
LAURA: No.
LISAMARIA MARTINEZ: Right?
(Overlapping voices)
LAURA -- letter, and they could either take it back or they could fix it however they want to.
LISAMARIA MARTINEZ: Right here in the lobby, right? They could fix it right here in the lobby; correct?
LAURA: We also have people who work for the company that cannot fix it, so they take it back and bring it back.
LISAMARIA MARTINEZ: Okay. So answer me this. Please answer me this. So if anyone comes up here and the form is incorrect, and if you or Angelina or anyone else says, hey, you filled this out wrong.
If I took a step to the side, if that person took a step to the side and fixed it, would you take the form that day?
LAURA: If it was the owner.
LISAMARIA MARTINEZ: Yes, I am the owner. And I have the articles of organization to show you that I'm the owner. Would you like to see that? Would that change your mind so you can help me?
LAURA: No, we just need the sections --
LISAMARIA MARTINEZ: Yes.
LAURA: -- that need to be completed.
LISAMARIA MARTINEZ: And so if the owner stood here and fixed the form, would you take the form?
LAURA: It would need to be fixed.
LISAMARIA MARTINEZ: By the owner.
LAURA: By the owner, that's correct.
LISAMARIA MARTINEZ: Yes. Correct.
But if they fixed it right on the spot, would you take the form? It's a simple yes or no.
LAURA: If it met all the requirements.
LISAMARIA MARTINEZ: Yes. So if they fixed the form to your specifications, if they did it right here and handed you the form, would you take the form?
LAURA: We would accept it.
LISAMARIA MARTINEZ: Great.
LAURA: not the owner --
LISAMARIA MARTINEZ: As the business, I am the business owner. I can show you the articles of organization.
LAURA: Okay.
LISAMARIA MARTINEZ: And I am asking you to please accommodate a person with a disability because if you don't, you can get sued; okay?
LAURA: Ordinarily --
LISAMARIA MARTINEZ: I have consulted with three lawyers in the hour and 10 minutes it took you to get back from lunch.
LAURA: If you would like to wait there, I cannot fill this out for you.
LISAMARIA MARTINEZ: I'm asking you to please help me.
LAURA: So if you could step aside.
LISAMARIA MARTINEZ: I need a letter with you saying that you cannot help me and why.
LAURA: Okay. I will step aside, but I'm not discriminating. I'm just explaining --
LISAMARIA MARTINEZ: So if I step over right here, will you give me a letter telling me why you can't help me?
LAURA: If you could just -- or you could stay there, that's fine. I cannot --
LISAMARIA MARTINEZ: So are you going to give me a letter telling me why you can't help me a letter?
LAURA: I can give you a letter with the reasons that state why it's being returned.
LISAMARIA MARTINEZ: That is fine. I get that.
But will you also give me a letter telling me you will not help me?
LAURA: No, I will not --
(Overlapping voices)
LISAMARIA MARTINEZ: I need to understand what --
LAURA: I will write the reasons, what we're asking you to do.
LISAMARIA MARTINEZ: Okay.
LAURA: And to return it in an envelope.
LISAMARIA MARTINEZ: Okay. So I'm still going to need someone to help me fill out the form to get it correct. So can you please give me a letter telling me why you cannot help me? I need to understand that so when I file my complaint against you for discriminating against me.
LAURA: I agreed to fill this out for you. We're going to tell you what's incorrect with form.
LISAMARIA MARTINEZ: Great. I need that so that I can go home --
TIM ELDER: It goes on from there. I think it speaks for itself. There is so many arcs there to comment on.
But the kind of determination and the how well informed she was of her rights and how she really put them on notice, you can kind of hear the resignation that she is basically giving up. They are not going to help me. That's basically what the case was about.
And that was one of the exhibits that the jury heard.
We had a lot of concerns about it because she is very demanding. She is not, you know, just sort of this meek customer. She is talking over her a lot. So we had a lot of heartache about whether and how to communicate it.
And, ultimately, I think it made the jury angry at the county more so than angry at her for not being respectful and the like.
But you know, it was something we thought a lot about.
KAYLE HILL: Listening to that makes my blood pressure rise. I can only imagine how your client felt in that moment.
Can you talk a little bit more about how it affected her both logistically in terms of filling out this paperwork that she needed to fill out and also the emotional impact as sort of being denied assistance?
TIM ELDER: Sure. We had great evidence on emotional distress in this case. She had these recordings which allowed the jury -- and this wasn't the only recording. And thankfully, we didn't violate the wiretap laws in California. Because I think she intended to turn the recording device off, but she was unsuccessful. Because it wasn't intentional recording, we kind of lucked out that this recording was accidentally made and we couldn't delete it after the fact.
But she had great testimony about being there for so long and going through this frustrating process. She was crying in the bathroom of the clerk's office before she left. She had conversation with a friend on the phone who could have testified. There were people on the bar who saw her visibly upset and were ushering her to a seat.
There was just great testimony about her emotional distress.
And then she did have to come back for a second visit to ultimately complete it. They never accommodated her; they never provided any effective communication. So she had to hire her own reader to help her fill out a new form at home. You know, about a month later, she returned with a driver and reader at her own expense to file it.
And there was a lot of emotional anxiety about what was going to happen when she had to come back on the second trip. Were they going to deny her again? She is just trying to start a business, which is already kind of a daunting task, a lot of uncertainty around it. I think we had pretty good factual record on emotional distress and what she was feeling.
Yeah, this definitely affected her in a very real, genuine way. I think just highlights why emotional distress comes into play on an ADA effective communication claim.
KAYLE HILL: And Anthony, how about you? Could you talk a little bit about the accommodations your client was being denied and how it affected her?
ANTHONY MAY: Yeah, that clip is so great to hear, because for me, it shows how our client -- there is so much overlap with the two clients in two very different scenarios.
But how ten nation they were in fighting for their rights, and how they were not going to back down. Sarah Hernandez is an incredible human being, first and foremost. She is both autistic and deaf. She uses identity first language. So she refers to herself as autistic.
And she refers to herself as deaf.
And she makes no qualms about that. She lets people know the moment she meets them what her disabilities are, how they impact her, so that people can communication with her so she can actually communicate with them.
And in 2017, 2017, she ran for Enfield's public school Board of Education. This is a tiny town in Connecticut, which is kind of this conservative microcosm of Connecticut, I believe, that -- so she ran for the democratic ticket, really wanted -- she always had been an advocate for people with disabilities, particularly, students and young people with disabilities. She has fostered a number of individuals with disabilities, she and her husband. So she really wanted -- she always had a big interest. She came from Washington D.C. where she grew up. Had a big interest in politics and wanted to get involved in local politics. She was very clear when she was on the campaign trail about what her disabilities were.
She was accommodated by the democratic party by giving -- she received sort of written prompts in advance of debates. She had kind of a script when she went door knocking, things like that. So there were accommodations provided to her throughout the election process.
She was elected. On her, even before she was sworn in, met with the superintendent of the schools, who the board works closely with, and was very clear about what her disabilities were.
And he just kind of said, okay.
And then after being sworn in, I think the makeup the board, there were nine individuals on the board, the board chairman, there were five who were on the Republican side, four on the Democrat side. The chairman was a Republican. The guy on the board for years, she met with him to say, these are my disabilities, this is what I need. The things she needed were very simple.
And it was because of her kind of constellation and intersection of her deafness and autism that she needed things like things in writing of advance of meetings so she could process information, so she could come in and be able to vote and take actions she needed so she had that information available to her.
She needed people to face her and look at her when they were speaking. So when there were presentations at board meetings, she asked that the chairman make sure that whoever was speaking directly look at her so she could read lips.
There were a number of kind of confidential sessions, closed sessions that, that the board would go into. During those sessions, she asked for, if there were topics to be discussed, that she get in advance something in writing so she understood what those were. She also asked for a whiteboard so she could pass notes -- and a dedicated person to pass notes to is this if she had questions, so she wasn't interrupting. All very basic, cheap things. The constant answer she got over the two years she served on the board was, that's not how we do things. It's confidential, we can't give you that.
We are not going to do that. It's just not how it works.
Consistently, she had minority, there were the Republicans met in separate sessions. The Democrats met in separate sessions. There was a minority leader, who was a real gem, and she tried to go to him several times. He did nothing but berate her, yell at her.
There were occasions where she would ask if somebody could send her information in writing. There were times when she would sent text messages saying, I'm available for a quick call. So that was something is that came up frequently at the trial, was, well, here are instances where she can talk on the phone. So what are you talking about?
As she explained, yes, when she is familiar with the topic or she has personal knowledge or advanced knowledge, she can speak on the phone and she accommodates herself by having the volume turned up all the way. So those were instances where she was able to communicate.
But when it was topics when it was unfamiliar to you or particularly when they would get heated, which happened very often in this setting, she needed things in writing. They were just unwilling to do this for the entire two years.
It had, I think, very devastating impacts on her. You can hear the frustration in Ms. Martinez's voice in that recording. And I think for Ms. Hernandez, it was death by slow burn, by a thousand cuts. Every single time she would ask for something and be told no. She was constantly struggling during board meetings.
What they did at trial was parade out a series of these recordings from board meetings. They said, look, she is able to participate. She responded. She nodded when somebody said something.
So she was actually able to equally participate.
What Sarah very clearly explained to the jury was that that is me masking, and I'm really good at it because I have done it my entire life.
But I struggled every single one of those meetings to try to do my job for the people who elected me.
And it was -- it just took a huge toll on her.
And she had severe emotional distress, which resulted in a lot of things that she had to do in order to take care of herself, including at the very end of her tenure, she made a very impassioned speech, probably the last board meeting that she attended. The subject she was talking on, she was the Head Start liaison for the board, again, because she had a passion of working with students with disabilities. She made a speech about information that she had consistently tried to gather about this moving of a Head Start program to a separate building and parents were upset about this. She was trying to get information and couldn't get it.
And in that speech at the board meeting, she talked about her own disabilities and how the board itself had refused to communicate with her. And how she understood where these parents' concerns were coming from.
And that sort of prompted the board for the first time in two years to go to their attorney and say, oh, shit, she just said something on the record. What are we going to do about this?
And then they have this, they call an emergency meeting next week, and board counsel meets with the chairman, superintendent, bunch of other people.
And they go into this meeting in a confidential session where they don't provide her any information in advance, so she has no idea what is going on. Told had they are going to talk about something that is completely different, and she is attacked by the board attorney. You are not entitled to any of these things. You have not shown us any proof of your disabilities.
We are not going to do this. We think you are leaking information. Basically, led Sarah to believe she was kicked off the board in six minutes. She was visibly upset, and all members of the board saw it.
She left, and that was the last time she attended the board meeting. That was right as she contacted Disability Rights Connecticut. Then we got involved. What she endured over two years and how she was treated every single meeting is horrible, but it is such a testament to who she is because she kept going because she knew she was elected to do a job and that's what she was there for.
SPEAKER: So what was the result?
ANTHONY MAY: Hey, spoil it. We are getting there.
(Laughter)
KAYLE HILL: So my next question would be, what remedies or justice are you seeking in your cases? I know this is a built of a complex question because in the middle of the Hernandez case, at least, there was a Supreme Court decision, Cummings versus Premier Rehab Keller, which removed the possibility of emotional distress damages. So it's sort of a dual question. What justice were you seeking for your clients?
And how did you work to pivot as the case moved forward?
How about you, Anthony?
ANTHONY MAY: Yeah, I will start. There were really two buckets, first and foremost, the most important to Sarah was injunctive relief. What she had done consistently for two years was say, how do I request accommodations? What is the policy?
Who do I go to? And constantly got the run around. Nobody told her what to do, how to go about doing this. She is, like, I'm trying to follow a formal process.
What do I do?
And they refused to kind of give her any sort of clear direction.
So the first piece that she was really wanted was for not only the Board of Education, but the town of Enfield itself was also a defendant, because the town is actually the responsible entity for providing public education, but it delegates that authority to the Board of Education. So she wanted the town and the board to have a clear policy on how you request what you need to do.
And if it's going to be denied, why it is denied, and the reasons for that. That was really the main thing she was seeking. She was also seeking significant emotional distress damages. And really, because it was a voluntary position. She wasn't paid to be on the school board. When we entered this case.
We had a very strong case for emotional distress damages. We thought this was great. Then Cummings came along in the middle of the case, right before we were briefing summary judgment.
We didn't raise it. We didn't say anything. They didn't say anything. We survived summary judgment.
No peep from the defendants about Cummings. We are, like, okay, let's just see what happens.
And it doesn't come up until right before we start preparing. There was a final mediation we attempted before trial that was unsuccessful.
But after that mediation was the first time that the issue of Cummings came up and they filed a motion in limine on damages. Essentially sought to eliminate any right to any sort of damages, claiming Cummings basically meant her monetary damages were nothing.
So I think thankfully from probably folks in this room, I'm sure we pulled a bunch of briefing. Our firm had some briefing, really been focused on this issue. So we were able to kind of point out all of the various ways that she could get some damages.
And we were really kind of forced into a physical pain and suffering, which was really the only thing that we could kind of concretely point to.
And we had an expert in the intersection of autism and deafness who talked about the physical impacts this could have on people with disabilities. Then we also sought nominal damages, we were hoping if we got injunctive relief on nominal damages, that would trigger the fee shifting, so we would at least be able to recover fees as well.
So the tricky part was that the defendants kind of wanted it both ways. There were things in some records that we produced that suggested that, to the extent there were emotional damages, they could have a different -- their causation could have been done by other things. They were really chopping at the bit to get those in, but they also didn't want us to argue emotional distress damages. So it came up right before trial in the motions in limine. They were, like, well, she is not entitled to emotional distress , but we want to put in all this information about her mental health records.
So that we can show that whatever damages she had, that the discrimination was not caused by us. The judge is, like, how do you do that? If she doesn't get emotional distress damages, why is any of this relevant? Well, if they start to say blah-blah-blah. So we really had to keep it tight and focus on the physical aspects and couldn't get into the emotional. Which is difficult particularly with a disability like autism where there are physical manifestations, panic attacks. I always argued it's a physical manifestation.
But the other side would say, no, that's really a mental -- an emotional distress reaction. Then, therefore, you opened the door for us to get this in. So it was kind of a tight rope that we had to walk a bit.
And ultimately -- well, we will get to the ultimate conclusion later.
But those were the difficulties that we had with Cummings happening in the intersection. I will say there were some silver linings that the judge realized because there was such limitations on damages. It helped us in some other respects, which I will talk about later.
TIM ELDER: Yeah, so the interesting thing about these two cases, they were timed very parallel. Our cases are kinds of on similar tracks.
We saw Cummings come out. We were, like, oh, no. Deliberate indifference damages, ADA, what's that going to mean for us?
From our client's perspective, she really wanted a fix. She wanted to make sure this didn't happen to her in the future or other blind people who are using the clerk's office. So she wasn't really looking to litigate. We sent a letter asking for structured negotiations.
We put all kinds of conciliatory language. We want to work with you and we don't think litigation should be required. Can we do all this to improve city services and county services for residents with disabilities?
And they totally blew us off.
We tried to get that letter into the record on deliberate indifference, like putting them on notice. In addition, we told you that you need to fix these things. A judge wasn't having it.
And so I don't know. Maybe I might have in retrospect had the client go back and send a letter that wasn't on attorney letterhead to try to do that first, because that would have come in.
But you will see in the end, we did all right without it anyway.
But she wanted injunctive relief primarily. When it became clear that they were not going to cooperate with her. They were not going to change their policy. In fact, they were going to dig in and say they are not required to provide transcribers for filling out forms because, under the definition of qualified readers under Title II regulations, it says qualified readers are for reading, but suggest that it is silent on whether they write.
It's only in the guidance that suggests qualified readers have to write. So they kind of have this regulatory interpretation argument that they wanted to litigate as a matter of law to, basically, get some law on the books saying that the clerk recorders all over the state of California are not responsible for tampering with the precious records. They don't want to ever be accused of tampering the integrity of the public records that people fill out.
So that was kind of part of their resistance. So when it became clear that they were going to resist, I think it was, like, well, then we are going to go for damages as well. Why not? If you are not going to work with us, then we are going to litigate it and include every remedy available.
And so we did that, and we tried to resolve the case. We could have resolved this case very early on. We were very reasonable in our asks. You know, agree to follow the guidance and DOJ -- where DOJ says qualified readers should be willing to fill out benefits forms and voter registration forms, they should also fill out clerk business forms. They wouldn't do it. So we had to take the case all the way to trial, including damages ask.
Our case was a little bit different from Anthony's only in that we had state law claims that we brought in as well. California has some pretty good state law protections.
As worried as we are about Cummings and emotional distress damages, we are, like, okay, how can we argue that the ADA is not about spending clause, you know, separate and distinguish it from the rulings in Cummings under 504? How can we reconstruct our emotional distress damages? Like these contract damages that are sort of consequential damages. Contract theories, is there a way we can replead these, or in our trial belief and the evidence that we presented to the jury, can we rely on a contract theory to get around Cummings?
But at the end of the day, the defendant is, like, we are asleep at the switch. They never raised Cummings. I don't know if it was because we had California state claims that would have allowed us to get damages anyway, or they just weren't aware. I mean, Cummings was pretty recent at the time we were going to trial, so it did not come up in our case even though we were concerned about it and had a strategy to deal with it if it did come up.
They didn't raise it. It wasn't a problem. They have flagged things under Loper Bright whether ADA regulations should be binding on the court, but they did not bring a Cummings challenge directly in our case, thankfully. I think it is too late for them to do it.
I think we are probably good. I think if they were going to appeal that issue, they would have to have briefed it at the trial court level, and they didn't. So I think they've waived it at this point, which you know, I'm thankful about.
KAYLE HILL: So I'm sure it's not totally a surprise to many people here that people have offensive ideas about disability. How did you take sort of the ableist culture into consideration when it came to selecting your jury?
ANTHONY MAY: Well, before even selecting the jury, we were forced to take the ableist culture into consideration because their big defense was, she is either not disabled enough or she was disabled. We gave her what she needed., and also, by the way, because of her disabilities, she is not credible. You can't believe her because she is autistic.
And they actually hired an expert to say in a report that this person, because she is autistic, she makes things up and cannot be believed. So pro tip, when you are filing your motions in eliminate nay, an expert cannot opine on that. Credibility is not within an expert.
So we really had to walk into that head on. With he knew that they were, again, walking kind of a tight rope where they are claiming, she really isn't disabled.
But if she is, we gave her what she needed to effectively participate. Of course, not giving her preference for her choices as the regulations require.
So what we did was we were fortunate enough to be able to meet with the jury consult before our trial.
And she -- the biggest piece of advice to this day, I'm so glad we met with her for an hour. She is, like, you want to have people that have an issue with the disabilities community, particularly with autism. So we put together a really robust list of jury questions thinking, let's give it a shot. Maybe the judge will ask, maybe not.
So the night before jury selection, with he get this email from the clerk that says, here are the ten questions that are going to be asked. They are very bland, generic questions. Damn, I thought we were going to get this in. So judge goes through, there are 50 people.
Goes through all the questions. Everyone stands up and answers them. Then he says, I have some additional questions asked, and proceeds to go through every single question that we wrote and ask people to stand up if they have an answer to this. And for the next probably, what, two to three hours, people just standing up left and right.
Then he went through one by one, and out of the 50 people in this jury pool, I would say 80% of them had somebody in their life that they knew who was either autistic or had somebody in their life who had faced barriers with getting education because of their disabilities.
And there was one man who stood up and said, the judge gave kind of a description of case at the outset.
This guy, I will never forget this, stood up and said, you know, when you started giving that description, it reminded me of my best friend growing up and his little sister who is autistic. I just kept thinking of her little face when you were describing when this person didn't get the things she needed. I don't think I can be fair and impartial.
Probably one -- and everybody in the room kind of went, oh. We go up to do our strikes and everything, and the judge is left and right going, oh, this person can't be fair and impartial. We are, like, no, no, no. This one is good.
The one with the little girl? No. (Laughing). I was like, okay.
So we ended up getting, I think we had a jury of eight originally, one had an emergency. We only had seven people on the jury. They were the only seven people that didn't really respond to any of these questions but the impact was there. So everybody said, I firmly believe that that had some impact on the way they viewed this case, was what everybody else had said about it.
It was really kind of a really incredible experience to kind of go through.
TIM ELDER: Sure. So it was interesting. We also did a jury consult; we had a mock trial presentation for a morning and got mock jurors to give us feedback.
And it was really interesting. I'm so glad we did it. I don't think I will ever try a case without doing one of those first, particularly on a damages case. Because it was so helpful to how we framed the case and we structured our arguments.
At least in our situation, I don't think sort of the ableist pushback was anything we were encountering a ton of as we were doing our surveys.
I will tell you what we did encounter was some of the intersectionality issues. Think we had a lot of problems with particularly older generation, female jurors who saw our 30-something, Latinx female, disabled, you know, assertive client as falling outside of the role of what they thought a respectful woman or a person with a disability should be.
And so, the intersectionality of her gender, I think was coming into the juror's perspective on that. You know, why -- they had an image of what she should be doing and how she should be acting and what she should be asking for. So that came in, I think, more so than the jury panel members connection to someone with a disability.
So we were kind of more concerned about that demographic as we were looking -- as we were striking people and looking for problems. It was sort of more conservative, generally older females who were not thrilled about seeing our confident, assertive client and these recordings trying to demand her rights.
So I think we also had to look at it from the perspective of the money ask. Like, she wasn't doing this primarily for money, but how do you ask at a level that's not too high where it makes it look like she is being greedy? Or that she has got an incentive to not be genuine in her testimony about how this impacted her.
But how do you not undersell your client and the harm that they have suffered?
So we had to kind of look at some ways we dealt with those kinds of juror reactions to her ask, which is coming through the attorney and their arguments, but, you know, how much do we ask for that's not too much and not too little?
We also got an interesting -- we had some fireworks during voir dire of the jury. One of other jurors, or potential jurors, was blind. And you got to believe defendants were not having that. So we got into this massive exchange where they were using one of their peremptories, then we raised the bats and challenge saying the only reason they are doing this is because this is a blind juror.
After we went back and forth, we realized there is no constitutional protection. Because it wasn't on race or gender, the defense can absolutely, at least in the Ninth Circuit, remove disabled jurors from the jury. Which was upsetting.
And I think it did leave an impact with the rest of the jury, because you know, most of it was done behind closed doors, but they knew why that blind juror was being excluded. Which I don't think helps, helped their case.
I think it is interesting, if I were them, I would have maybe tried to do that and then show how well they accommodated that juror during the trial.
But they didn't do that. They very much excluded that juror.
It also creates some really awkward things. I was In the line for the bathroom and the perspective juror walks up to me, oh, so you are blind too? You know, like, some sort of, like, I'm with you kind of comment that I'm, like, what do I do with this? (Laughing). I can't talk to you. You are a potential juror. Do I report this? How am I supposed to react to this ethically and not get in trouble with the court?
But, ultimately, that juror was struck. We did get to interview some jurors after the fact and hear their perspective. So it was very fascinating.
I don't think -- I think they got the case -- there weren't, as far as they were aware, there weren't any biases or ableist things that were expressly being shared in the jury rooms.
They were, I think, wanting to make sure that the client was happy with the result. We prevailed, as you will soon hear. But I think they wanted to feel validated, that this was justice for her and she felt happy. Because she was crying when the verdict came out. They were wanting to make sure those were, like, tears of relief and not disappointment for the amount.
I will just quickly say, so the jury awarded 30,500 in this case. We thought it was great. We had asked for something in the five figure range based on what they thought. We gave them some options, and they kind of picked the middle option.
But then the jurors after, when we started hearing the case and what happened and hearing the recordings, we thought, oh, yeah this is going to a case about several hundred thousand in damages.
But when you only asked for the smaller amount, we thought, oh, yeah, she is being really reasonable. I wasn't sure how to take that.
(Laughter)
So anyway. It was interesting.
KAYLE HILL: I want to chat briefly about jury instructions. Tim, I know you briefly mentioned earlier the concept of deliberate indifference.
And there is also another big concept that came up in Hernandez, the equal of equally effective communication.
Tim, you could talk a little bit about sort of the guidance that comes with that, especially as what you wanted to make clear to the jury in your jury instructions?
TIM ELDER: Yeah, there is a lot of things we wanted to put in the jury instructions. We didn't get our way. But throughout this case, there was this constant attempt by the defendants to sort of blur the Title III standard into the Title II standard. Under Title III, communication needs to be effective. Under Title II, the regulations say it needs to be equally effective as to others without disabilities. So there is this requirement that the communication be equal, not just effective.
And we had a lot of issues about the definition of a qualified reader, and primary consideration. And we tried to get some of the language from the DOJ guidance into our jury instructions.
And the court kind of went back and forth. Defendants had all these bizarre citations on deliberate indifference. They were using citations for deliberate indifference in other statutory contexts and saying, deliberate indifference is, you know, more than gross negligence.
And it's a stringent fault. All these sound bites. Thankfully, the court wasn't buying that. That was kept out.
But at the same time, the court wouldn't let us put in language about the DOJ guidance about what it means to be a qualified reader and some of those things. Which, by the way, some of the stuff in the Title II regulations in the appendix, it's not labeled as guidance exactly.
But if you look, there is language at the beginning of the appendix that says, anything in this appendix of the rule is not officially part of the regulation, is actually guidance.
So even in the final rule, as it was adopted, we weren't able to get a lot of stuff into the appendix into the jury instructions.
We did get the primary consideration language in.
And we got equally effective language in our jury instructions, which I think really helped. Because in our case, over the course of the five years between the incident that our plaintiff experienced and the jury, they had taken various steps to try to moot our case. So there was like a computer kiosk for self-service available at some point. Then they had done this online form thing, which it was so stupid. It's like government efficiency here. You could fill out your form online and push the submit button, but you still had to go into the office to physically pay with a credit card or check.
It's like online transaction without being able to transact some physical business. It still requires a physical person trip. I don't fully -- I think it is a work in progress, it is what I would say.
But they had all these alternative auxiliary aids they were pointing to. These are effective, she can use these. There is no injunctive relief needed. We've heard her concern, and we are offering something better for people to use.
So this kind of all came up throughout the case.
But in terms of jury instructions, I think we got a pretty good deal. It was even handed. Not everything we wanted but not any of the ridiculous stuff that the defendants wanted either. It worked.
I think it worked to our advantage to have some of the regulatory language in the jury instructions.
ANTHONY MAY: Completely agree. Oddly enough, our battle was between Title I and Title II. They wanted to really reach the consensus in most everything in the jury instructions except for the regulation language that we wanted to include and the equally effective language.
And they wanted to say, well, we just are responsible to provide reasonable accommodation. So it doesn't have to be what she wants. It just has to be reasonable. And here is everything we did that we are going to pat ourselves on the back for.
Setting aside the fact that none of what they claimed was a formal accommodation of any sorts, this case, it taught me the very clear distinction between Title II and I, what a reasonably effective communication was. We had this conversation with the judge when we were doing the jury charge kind of deliberation back and forth before he finalized the jury instructions. He was, like, doesn't equally effective give you a higher burden to prove? I said absolutely not, your honor.
She has primary preference. She has to be -- the communication they provide to all non-disabled board members has to be equally effective for her. Which means they can't just do anything here and there. It has to be effective.
And so, we submitted some kind of last minute language. One of my colleagues, who I don't think is here, but brilliant on the spot, got the pulled language right away. We sent it to the judge and we were able to get both the primary consideration equally effective communication in.
And that was something we really hammered home during closing, was that here are all the instances where it is not equal.
And I think it's one of the reasons why, in hindsight, I'm glad we had Sarah go first. She was the first witness we presented, so she could not only explain to the folks what it meant for her to be autistic and what it meant for her to be deaf and how each of these disabilities are on a spectrum, and how these disabilities impact her directly, but how she needs very specific communication preferences. If she gets those, she is off to the races. You don't want to go toe to toe in a debate with her.
She is amazing.
But all she needed was thesis minor things. By not providing that equally effective communication, that's what -- and the constant requests and constant denials, that's what really set us up for success on the deliberate indifference claims.
TIM ELDER: I want to throw one other thing in there. In this case, we learned the very subtle and important distinctions between reasonable modification claims versus discrimination based on ineffective communication claims.
And we -- oftentimes, those are offered in jury instructions as alternates. Either they need to reasonably modify their policy or they need to provide certain auxiliary aids to provide effective communication.
We did not pursue a reasonable modification because we felted we should pick one and go with it. Reasonable modification works better when you are talking about a generally applicable policy that then is an exception. If she wanted to park closer to the clerk recorder's office to get out and there is a no parking thing, maybe there is something like that, an exception to the policy.
But when the government's policy is, like, we don't provide auxiliary aids, that's not really a reasonable -- the law is already reflecting the reasonable modifications in terms of requiring auxiliary aids.
So even though we pled a reasonable modification claim in the pleading, we ended up sort of streamlining and getting rid of that theory and just proceeding solely on a discrimination based on failure to provide effective communication. I think that took all of this squishy reasonableness language out of it. So it was never what is reasonable. That language didn't appear anywhere, I think, in our jury instructions, if I'm remembering correctly.
Which I think is helpful. It tightens the standard down, especially when you've got the provision, specifically, dealing with effective communication and discrimination.
So I would just offer that. Because we often throw them both in there interchangeably in the pleading states.
But for trial, I thought it was better to laser in and focus on one of the theories that was most applicable.
KAYLE HILL: So we are running a little low on time. I'm going to dive into my last question here. Anthony, you and I have talked a bit about the ten principles of disability justice from Sins Invalid and what it means to work with a trial team, all of whom have disabilities. And Tim, I know you have some experience with this as well.
The principles that particularly strike me when thinking about my own trial experience are recognizing wholeness, sustainability, and interdependence.
I remember disclosing to you, we were having our post-win drinks after we won.
ANTHONY MAY: Many of them.
(Laughter)
KAYLE HILL: That I was never really sure I would be able to participate in a trial due to my own disabilities.
And it was sort of you recognizing my -- I'm going to make him cry.
ANTHONY MAY: Stop.
KAYLE HILL: You recognizing my wholeness and our interdependence that really let me thrive in that environment.
So could you both talk a little bit about what it was like as attorneys with disabilities leading a trial team comprised of people with disabilities?
ANTHONY MAY: Yeah, what it was like was fantastic. So I am a diabetic. I'm Type I diabetic. I have to monitor my insuring and take insulin here and there.
Kaley was very open and honest with me about her disabilities. Co-counsel was open and honest about her disabilities. We knew our client's disabilities.
But we learned more about them as we prepared for trial.
And I think Kaley taught me the spoons theory, which I had never heard before. I don't know if everyone is familiar. I will butcher this.
The spoons theory is that we've only got so many spoons to give. So you need to know at the beginning of the day, clearly communicate, this is what I got for today. It's going to be a long day. We need to know where we are going to use those spoons at.
So I think that was a very helpful tool for me to think from the beginning of the day to the end of the day, what are the 30,000 things we've got to do today? How are we going to accomplish that? And who has got the bandwidth to do that?
And I think also making sure to constantly communicate and check in with each other, check in with our client to make sure she is following along, she is getting what she needs, that we are communicating kind of as things are going on in this really fast-paced trial environment, we are explaining to her and she is able to process what she needs to do give us the answers that we need to get so we can respond to the judge.
So it just, it gave me -- it helped me think that we've got to be very careful and deliberate about treating each other with grace. Making sure we are all on the same page and supporting each other as a team.
And I think that's what ultimately showed. I think the jury saw that. I will say because I buried the lead.
But we were successful. We did get declaratory and injunctive relief in this case. We did not get reward of any financial damages for this client, I think lessons learned for me, I think I would have gone back and suggested something on the physical pain and suffering. I didn't give a number.
I still kick myself for not doing that. We did get nominal damages. I can tell everybody as of last week, 30 days and pending, we were aid warded a little over a million dollars in attorney's fees and cost.
(Applause)
For a case that should have settled after a demand letter. We were very thrilled about that. Sarah was very thrilled about that.
And I think that just being able to recognize kind of why we were all there doing what we were doing and why we believed so much in it was really -- it helped us kind of work as a team, work with each other as individual disabilities, and kind of take those and use them as our strength and not weakness.
TIM ELDER: So I think, at least for me and our team and Tomiyo Stoner, I don't think she is here, but she comes to the law symposium. So you should say hi to her. I'm a blind attorney, so I don't know anything different. This is what I do.
My client is a blind individual. Tomiyo Stoner, her parents are both blind. We definitely had a connection to the community.
And I say, what made the difference, at least for our trial team, this wasn't just another case. This was a case for all of our friends, for our family members.
And so we are putting in the extra midnight oil and putting in the extra resources and putting more personal and emotional investment into the result because we care. We care about the outcome. It's not just a number. It's not just another verdict or another case on the docket.
This was a personal affront to us and our client and our community. We had members of the community supporting the plaintiff in the courtroom watching and cheering her on.
I just felt like, at least for us, it felt like higher stakes. Because if we lost, it wasn't a loss for the case. It was a let-down of the community. So I'm thrilled that the jury saw that and saw how important this issue was to us and that we were being truthful and genuine and cared, and that resonated with them.
We got -- the verdict came back. It was 30,500 in deliberate indifference damages. So they found that, yes, the county had been deliberately indifferent. 30,500 under the ADA.
And do you public tick 30,500 under state law, which don't get added together for technical reasons.
And then a few months later, we got a federal injunction ordering the county to provide human transcribers for any blind individuals who request it at the clerk court office. Knock on wood, our fee petitions is due later in April. So we will see where it goes.
Yeah, this was great to work on. This is a case that never should have happened. There is ADA guidance, specifically saying this kind of stuff shouldn't happen. So on one hand, I'm frustrated that we had to dedicate this amount of resources and effort for such low hanging fruit.
On the other hand, I'm so proud of how the community came together to support Lisa Maria Martinez and stand for this injustice. And you know, possibly to make good law and a good example jury verdict on an effective communication denial. Mixed feelings about it but I'm glad that justice prevailed at the end of the day.
KAYLE HILL: Any --
ANTHONY MAY: I guess we can take a couple questions. I can tell you Dan does not need a mic.
(Laughter)
ATTENDEE: Are we on Zoom?
ANTHONY MAY: I don't know.
TIM ELDER: I don't think so.
ANTHONY MAY: Here you go.
ATTENDEE: All right. Who has a question? Shout out because I can't see you raise your hand.
ATTENDEE: Tim and Anthony, you both mentioned using a jury consultant, and given the limited budgets that most plaintiffs have, could you explain how you were able to do that?
ATTENDEE: I'm just going to repeat as a courtesy. We were talking, Dan Goldstein is asking -- good to see you, Dan -- about with a limited budget, working with a jury consultant.
ANTHONY MAY: Ours was actually free. Someone who worked with our office for years gave us a free one-hour consult. So we did the best to make most use of that one hour. She was willing to look at the complaint in advance. She had some thoughts.
So we were really kind of very targeted in what we asked in that one hour, so we were fortunate enough to have a free consult.
ATTENDEE: Anthony, that's not just for Brown, Goldstein, Levy. The jury consultant association agreed to do this for plaintiffs in disability cases.
TIM ELDER: Yeah. So there is a resource to this community that Dan is prompting here. So we worked with NJP. For the folks who know Rick Macpherson, PNA in Minnesota, his wife does jury consulting all over the country.
They are able to wave a good portion of their fees for certain kinds of disability cases. You do have to pay some expenses. I think in our case; we had to pay to rent the facility and to pay the fees of the mock jurors.
It's not completely free to us.
But I can say that the money that we spent, I should say invested, was well worth it. Because what we learned, I'm confident what we learned from those mock jurors is what allowed us to obtain a damages verdict of 30,000 dollars plus. And apparently, there was an appetite for more. We were being kind of conservative in our ask of it.
So I would say -- I am fully 100% onboard with using this resource in a jury consultant. If you are going to take a case to trial and ask for damages, do this jury because it is such a great dress rehearsal. You will learn a ton both for this case and any other case you bring. It was an investment that paid in dividends.
ATTENDEE: Anybody else?
ATTENDEE: Howdy, over here.
ATTENDEE: Thank you.
Hi, this is more specifically for you. As a high masking autistic person myself, and a law student, I was wondering if you had any insight on when dealing with autistic clients in terms of what factors go into calling them as a witness, stuff like that, in terms of -- because as I'm aware, credibility can be adventure to deal with when you have people that are not used to focus like myself presenting.
ANTHONY MAY: Yeah. So I think let's meet the client where they are at. Really. What we tried to do, Sarah was a theater minor in college.
So when we talked about what the trial was going to look like, we set it up, first act is us. There is an intermission, we are going to argue this. Second act is this. So we really tried.
And we had really candid conversations early on throughout the case. Particularly, the weekend before trial where we were really spent a lot of time going through Sarah's direct testimony with her, the points she needed to hit, that sort of thing: Just figuring out what is the most effective way that we can communicate with you. Where are you going to be the most comfortable? So we put together -- Kaley spent hours putting together these color-coded blinders for her, it was something she was able to easily process the information.
But, ultimately, we wanted her to be as authentic as she could be. It's not a problem for Sarah. We just wanted the jury to really understand who she was, so we wanted to make her the most comfortable as she could. So I think it really just, as you are aware, autism is so unique to the individual.
So it's trying to figure out what is the best way that we can help you succeed, and what is the best way that we can kind of convey information to you in a way that you understand and process? One thing, and we do this with all of our clients, but one thing we focused on with her is anchor points.
If you are on the stand and you are processing the question or the captioning stops and she couldn't read the question, to take a moment, ask for more time, and then take as much time as you need. Then if you are not really sure where the request he is going, come back to those anchor truths for you, that you did everything you could.
You asked multiply times, you were denied, denied. We really spent a lot of time, and really the investment was really there. And you can show, and the jury, I could tell after the first hour, fell in love with her.
One thing that also didn't hurt was there was a criminal trial going on down the hall.
And in the middle of her testimony, something -- it was a murder trial. Something happened and somebody let a blood curdling scream and ran out of the hall -- into the hall, down the hall.
And the entire courtroom and our courtroom stopped. And Sarah just burst into tears. She was, like, I'm really sorry. I have a very emotional reaction when I hear people cry, and the jury just went, oh.
You couldn't be more credible. You couldn't be more open and honest as a human being.
And that's what we just wanted the jury to know. This is an individual. This is who this person is. This is who you are dealing with.
I think that honesty really carried the day.
TIM ELDER: I don't have much to add. So you can't fool a jury. You might be able to fool a few of them, but they are going to catch on. The instant you try to do something that is not genuine to who the client is, I think that's when you start risking your credibility.
ATTENDEE: Thank you.
ANTHONY MAY: Well-gone over our time, I think.
(Laughter)
Well, thank you all for coming.
TIM ELDER: Thank you.