CHRIS LAW: Thanks very much. I'm going to share a PowerPoint slide for the first half of the workshop. My name is Chris Law and I'm here with Kristina Launey and Timothy Elder. The legal summit is where these guidelines came from. And we're still not actually sure if the word guidelines is correct. That's part of the discussion we'll have this morning. So The Digital Accessibility Legal Summit started in 2019. We've had two events so far. The first in person in Anaheim, California. The second was online last year. The third will be online again this year but in September.
We submitted this actual presentation for last year's NFB symposium and unfortunately that event was canceled so NFB kindly allowed us to come back this year and present what we intended to do last year.
I intended to maybe extend the guidelines that had been created and maybe refine things and publish in a new and expanded way. And that, again, was intended to happen last year.
Because of the pandemic, the three of us got together and said look, we've got enough on our plates already. We're not going to tackle this year. So now we have the chance to revisit this and pick it up again and present these guidelines to this new group. We'll have a discussion.
First the half will be a bit of background and the best practices so far. And then the second part of the workshop — because we've got about an hour and a half for this — will be some discussion amongst yourselves and us on what happens next. So that's more of the interactive part. If you have questions as we go, this is a workshop. So feel free to put up your hand. Mya, you will be monitoring those and if questions come in through the chat, please just interrupt and we'll try to address questions as they come along.
Absolutely.
CHRIS LAW: Okay. So my name is Dr. Chris M. law. I am a consultant and listed as a consultant with the state of Virginia. They think of me as a consultant. But I ended up doing things that don't traditionally — people don't traditionally thing this is what a consultant does.
I've got three major things that took ahold early on when I started as a consultant five years ago. One was I started work for National Federation of the Blind as a consultant to create a set of guidance for newcomers to the accessibility field and what we were finding was a lot of people were — who were newcomers were Googling what to do and then they would have to take an amalgamation of all of the different things they had read to figure out what it is they should do. So why don't we create resources of the collective wisdom of the people who work in the field and here are the first steps to get going.
Things like how to set up your organization and deal with complaints from consumers who were having problems with your website or other technologies, things like that. That's an information portal that the NFB owns. I manage and run. There's a 30 plus community of practice membership of people who review the articles that get posted.
I also started up this thing called the ICL accessibility testing symposium. It's now going into its sixth year. We've got a couple hundred people in this little peer reviewed conference. This event came about when a number of us were sitting around after doing a presentation on accessibility testing and we said to ourselves look, no one is doing a conference on this. There really should be a conference. Why hasn't anybody made a conference to have everybody get together and start talking about these different ways people are approaching testing. And we all looked at each and realized no one else is doing it so we'll have to do it.
The same thing happened with The Digital Accessibility Legal Summit which is going into its third year. Same thing. I had a conversation with Jack McCallany who may be on the call.
He came in.
CHRIS LAW: I was having a conversation with jack, another conference, we were talking about this and how all of these articles keep coming out about the challenges and the legal cases that were being put forward. We then said somebody really should have a conference on this. Same thing. Ended up with creating another conference. So that's how this came about. As part of the first legal summit, I asked — I wanted to have a plaintiff lawyer and a defendant lawyer back to back in presentations and that became Tim and Kristina then they created the first set of guidelines themselves.
Now I'm going to hand it over to Kristina to introduce herself and talk about what's generally going on in this area in terms of digital accessibility and legal actions.
KRISTINA LAUNEY: Hi, everyone. I kept my slide about me pretty short and succinct. I think I know a lot of you on the call here and thank you for joining us. For those of you who don't know me, my name is Kristina Launey, a partner with a law firm called Seyfarth Shaw and I'm based in Sacramento and practice across the country. I specialize in discrimination, anti discrimination and disability access. Have been doing digital accessibility for quite a few years now.
Tim's asked to talk about the state of things in digital accessibility law. We do multiple hour long presentations on that. The quick one minute summary is that we saw things be a bit more subdue last year in terms of the number of lawsuits we've seen alleging that websites and mobile applications were not accessible to individuals with disabilities. Mostly people who are blind or have limited visibility. This is a chart that shows the accessibility numbers. It has three bars.
One for 2017, one for 2018 and one for 2019 showing the number of website accessibility lawsuits filed in federal courts, only federal courts, not state courts or demand letters. Each of the bars corresponds to one of the prior three years not including 2020 in part because 2021 started off extremely busy for me and my colleagues and crunching these numbers to make sure they're accurate takes a considerable amount of time. So that's still in progress and we hope to get the 2020 numbers posted on our blog in relatively short order.
But in the meantime, in 2017, there were 800. In 2018 there were 2,258 lawsuit regarding the accessibility of websites filed in federal courts. That's a 177% increase over 2017. And then in 2019, we saw 2,256 lawsuits filed and that was two fewer than in 2018. You can't read too much into the fact that was too fewer. Part of the reason why it was fewer is because we saw a lot more lawsuits filed in state courts than in prior years and we also saw a lot of these matters getting resolved before a lawsuit was filed.
The bottom line is that website accessibility lawsuits were not and are not going away anytime soon. The 2020 numbers we're guessing will be about the same as the 2019 numbers which is surprising given that we have done the numbers of total ADA Title III on all basis, not just websites. It held steady from the prior year. We think that will be the same for web. But what's remarkable about that is we saw a big dip in the number of lawsuits filed in the late spring/summer months because of the pandemic obviously. And then we saw a big uptick at the end of the year and then things have exploded at the beginning of 2021 in terms of the number of lawsuits filed.
I think on the next slide here we have some state numbers. So this chart shows the states where lawsuits were primarily filed alleging that websites are not accessible to individuals with disabilities in violation of the ADA. These are from 2019. New York led the pack with 1300 such lawsuits. Florida followed with 526. California at 120. Pennsylvania 92. Illinois 91. Massachusetts 33. And then Wisconsin, Indiana, Colorado and Washington, D.C. all had fewer than 10. The reason we're seeing such extreme numbers in New York, for example, over California is because in California we see a lot of these lawsuits filed in state courts. So New York, Florida, California, are the three biggest states we see these lawsuits filed and with Pennsylvania following.
So what we expect for 2021 is to see potentially increased enforcement action by the Department of Justice now that we have a new administration, possibly the OCR with respect to educational entities. Do we expect any regulatory efforts to start up again? Probably not anytime soon. There's a whole lot of other stuff the administration is dealing with first. Do we expect lawsuits to continue in the meantime? It is entirely likely.
The other update, Chris, I promised I was going to do this for a minute and I'm going on five. Last thing I'll say.
CHRIS LAW: All good stuff.
KRISTINA LAUNEY: The one other thing I would say is in the way of actual substantive updates, there were relatively few last year. We did an internal update with my law firm — the update was on what happened last year and accessibility and if any of you are curious, I can send you the recording. The bottom line was in contrast to prior years, there weren't a whole lot of substantive decisions that came out. So the state of the law is pretty much where it was. The Domino's decision was the last big one that came out. We're still waiting on the Winn Dixie court of appeals decision out of Florida. And in the meantime, a lot of the arguments the defendants had made on motions to dismiss on procedural grounds have been knocked down. We didn't see those being made so much last year. We have seen a number of courts that have held in favor of plaintiffs that if a website is not accessible and mobile app as Domino's held as well, it can violate the ADA but as to what that means to be accessible is still an issue that hasn't been decided ultimately by any court of authority.
There are a couple of questions. If you could address title II and if you had a video, if you would be willing to share with everyone.
KRISTINA LAUNEY: As to title II, we don't track title II lawsuits in part because we — we mostly represent businesses who would be subject to Title III. Every once in a while, we have a crossover issue. Title II applies to state and local public entities. Title III applies to public accommodation which are essentially private businesses. We unfortunately don't track the title II numbers but they would be significantly fewer because number one, there are a lot fewer targets and number two, the law is slightly different as to programmatic access. Rather than the standard under Title III and there isn't as much money to be made under title II whereas there is a whole lot of businesses that plaintiffs can go after under Title III of the ADA.
As to video, I would have to defer to the organizers.
CHRIS LAW: What was the question about, Jonathan? You would appreciate a video of — was that relating to the treadmill desk?
I think Kristina mentioned she had done a video presentation, the website updates.
KRISTINA LAUNEY: Thanks, Jonathan. Send me your email.
CHRIS LAW: At the end, we'll put up everybody's email address for the presenters. Next question in the chat.
KRISTINA LAUNEY: I think it is sometimes the opposite. Depends on what court you're talking about though. In California, a lot of plaintiffs filed in state court because they think that the state courts are going to be more friendly to them. Some plaintiffs file in federal courts just because it is easier because the federal courts have e-filing that's more available than state courts.
Really, I would be interested to see the numbers in California — they might be fairly equal if not more — filed in state court than federal court. In states other than California, they don't have the state laws that make penalties and/or damages available to plaintiffs. So there isn't a state law on which they're hanging their hat as well. They'll be suing you under Title III of the ADA, a federal law so they'll be more likely to file in federal court.
Tim works on the plaintiff side. You might have more insight as to where the plaintiff's bar chooses to file.
CHRIS LAW: Tim, I'll put up your intro slide as well.
TIM ELDER: Federal court is much more organized, I would say in terms of filing. You have UCF, you have some online filing. You can do things pretty quickly. In California state court, each superior court is different and not all of them have — believe it or not — not all of them have electronic filing.
In San Francisco, you might be able to file something electronically but it is a separate system. But in Alameda County Superior Court, you have to do a fax filing. That may be part of it. Obviously there are some differences with the jury. Unanimous verdict versus sort of the threshold quota of jurors finding a verdict. So there are differences. There are other differences, too, like in federal court, you've got the single judge. California, some superior courts are still like you have this rotating law and motion thing.
Our firm has started to deal with things in state court although I must admit it is a pain. Procedurally, all else being equal, it is much easier to be in federal court. From my perspective. But there are some definite advantages to California state court and if you can get the complexity designation, there are some advantages there as well. Even over some of the federal rules of civil procedure. Yes, I think that's happening a lot in California. It would be interesting to see the numbers. I would be curious, Kristina, to see how many firms or how many particular plaintiffs reflect these numbers. I think you guys have done numbers like that in the past. Like how many of the total are — are 90% of these 10% of the unique lawyers or law firms? It would be interesting to see some of that.
KRISTINA LAUNEY: I think data is put out like that. We don't just because we don't want to get into who's doing what necessarily. And that also frequently doesn't tell the whole story. We're afraid if we put out data like that, sometimes there is a whole lot of plaintiffs that don't file suits. They just send demand letters. So those plaintiffs and those attorneys wouldn't be reflected in this data. There is certainly some interest that can be had from seeing some of that. I think able net tracks it.
The other thing you were saying Tim, because the website accessibility legal landscape as it relates to substantive decisions issued from the court is so patchwork because they're a substantive decision will issue and it won't get appealed so you have trial court decisions in some state courts and some federal courts all over the country. Sometimes which are even conflicting. There might be a decision in the district of Vermont that's the exact opposite of the issue that was decided in California.
And sometimes between a federal court and a state court in the same state. Plaintiffs also might do a little bit of selective filing depending on which court they think is going to be more favorable to the issue they have as well.
CHRIS LAW: There was one other question that came in. To keep us on track, I would ask for a simple yes or no answer from both of you. And then the question would be are there guidelines in the best practice that we're talking about today applicable to the same thing, to title II? Do you have experience bringing digital accessibility suits under title II.
TIM ELDER: Yes. I will say that I think that that number is actually tracking pretty high as well. I'm seeing a lot of cities and counties and sort of smaller localities are getting lawsuits just as frequently as some of the Title III.
CHRIS LAW: And do these — does what we're talking about, does it apply?
TIM ELDER: I would think so. Yes.
CHRIS LAW: All right. So with that, a little belatedly, Tim, why don't you introduce yourself?
TIM ELDER: My name is Tim Elder, the principal attorney at the TRE legal practice based out here in California. I've been doing digital accessibility impact litigation work for quite some time going back as early to the target.com case. Our firm approaches this work in a very holistic manner so we really want to use all of the tools that are available and offer our clients as many resources as possible so we have a lot of connections into the community and a lot of connections to other sources so that if our litigation can be informed by what the community is doing and what clients want and what's in sort of the best interest of accessibility in the long term and for the goal that the community has, we work with a lot of other service providers and organizations. I'm very happy to represent the National Federation of the Blind on a number of very important cases. We're very strategic about the cases that we bring. And sometimes that is impact litigation with very high stakes, setting precedence. Sometimes it's structured negotiation, working with a company that wants to do the right thing and needs some help in getting there. Anything that sort of is in this realm.
I'm a native screen reader user. I have colleagues that work at my firm that have similar expertise in software and website development. We try to approach this from a very client centered, holistic perspective. So we're doing a lot of work in website accessibility, self service kiosk and tablet accessibility. Government technology.
Honestly, it is the same thing. Governments are moving toward self service just as quickly as the Title III entities. And because of COVID and sort of physical access restrictions, we're seeing a huge escalation or acceleration in the number of government services that are moving to sort of a self service model or online only sort of situation. We're seeing all kinds of ways in which technology is becoming the primary and the exclusive avenue to obtain goods and services in the world.
In general, the state of cases and precedent in the law on digital accessibility is great. We've got a clear trend towards positive decisions in this realm and I don't think it's new anymore. Accessibility is required under our civil rights laws. I think that's a pretty calm and understanding and it's not foreign to most compliance folks these days.
Obviously things are still evolving. As a result of a lot of the positive decisions, we're also seeing a huge uptick in the volume of cases that are being filed and the number of litigants that are bringing these claims. That's why I'm here because I think not all of the folks doing it are experienced civil rights attorneys or are necessarily doing it with a focus on achieving accessibility. So for the folks in this room, I think we've got some great high level litigators who do things ethically and at the highest level and have their clients' interests at heart.
But not all attorneys that are starting to do this work are in that category. So I think that does warrant some conversation amongst this group as to what do we need to do to keep the bar high and what do we need to do to promote positive enforcement of these protections that we've established. How do we need to model and change our behavior as a reaction to what's going on.
CHRIS LAW: Good segue. Great segue to the next slides. I do say there are a couple of questions that are coming in. There's one from Kevin Williams. What I would ask Kevin is that we'll circle back to that questions after we've looked at the guidance we've produced. For everyone else, I know that this is a topic that we could all end up speaking all day about. And there's lots of interest in this. That's great. But I'm going to have to circle it back so that we get to cover the guidance aspects that we're intending to convey in the workshop. Please keep your questions more to what we're now starting to present in terms of guidance, that would be great rather than what is actually happening. We can get back to those things. Sorry to cut anybody off. But let's get back to it.
I've got a visual representation of the sort of thing that Tim was saying. We have to get together and figure out what these things are. When we started the 2019 summit, one of the ideas in our initial conversations, the small team that was trying to plan this was let's get somebody from the defendant and the plaintiff side together on the same stage. And I had a couple of people say to me that's never gonna happen. You're not going to get those people to be sitting next to each other on a podium. Just forget about it. I said well, okay. Let's go and ask a few and see if that's really the case. Fortunately, people directed me to Tim and to Kristina because they're very friendly people and they had no problem. And then they, together, said hey, we got together and created a bunch of guidelines or best practices.
We re-did the schedule to be a talk from Tim and Kristina and then together. One of the things I did when I was creating the legal summit was to say to potential presenters, this is not a one shot thing of coming to an audience and giving one talk. Instead, what I plan to do is to take the talks and then put them into a book, a volume so that then we can have that available for people who are looking to get a start in this area. So I have a copy of the book here. It is available on Amazon. I'm watching a 150 odd pages book that we created. There is a graphic of the cover of it. It says the digital accessibility legal digest volume I. Practice updates, guidance and resources.
So in there, we had three parts to it but part "B" was guidance and standards. The first part of that was what we're talking about in this workshop. The second part of it was actually best practices or standards on organizational development — developmental, organizational behavior which Dan Goldstein gave that presentation. Dan is talking this afternoon. So be sure to tune into Dan's as well this afternoon if you're interested in more guidance and standards.
And then in the book, this is not a slide that's intended to be read. I'm just conveying what's in the book. There are best practices then commentary basically taken from the transcript of the event from Kristina and Tim. And then what I've added editorial capacity is to put in related resources so they may be resources from other parts of the same book or from elsewhere with web links and that sort of thing. We've added notes as needed. So for example, if there is a legal term that we didn't really think that accessibility professionals would understand, I put in the legal definition where I can find it, that sort of thing.
And then I mentioned at the very beginning when we were talking about this workshop, we were saying is this guidance? Or is it best practices? Is it tips or tricks? So the way that things evolve in practice is from anybody having a new idea of what to do in their business. They take this idea. This theory of what might work and they put it into practice and see if it actually works and if it does, they start telling their friends about it, right? And you have conversations at conferences and events and you start saying hey, I did this and it worked. Another person might say I did this and it worked. That's where it stays for a while until somebody says we should make a presentation on this and they might do a thing that says tips and tricks or advice. Never legal advice but it's advice, right?
And then eventually, somebody says let's try to formalize things so things start going from very informal to formal so it might go to something that's called best practices. That's how this is presented as best practices right now. As more and more people get involved, you might say okay, let's evolve this into guides that other people can use or even standards which would be with a standards body. Then things might become requirements. Think of the executive action from the White House. That's a requirement but it's not the law. The next step is the law. So things become very formalized once it's the law. Where are we on this? We may be at the best practices part. And there's work to go forward.
I can tell you the name of the workshop with Dan Goldstein. It is called what do you want? A new approach to corporate disability inclusions. It is number 5 in the 2:00 slot. Okay.
So then I've got a little sort of — two bubbles here. One is the big bubble says established texts in legal practice. And then one says digital accessibility. Because another part of our conversation was this is just sort of common sense for lawyers, right? This is what they learn in school to do some of these things but we're then modifying them slightly to legal practice. Do you just send everybody back to the legal texts and say that's where all of the advice is. Or do you create something new and then eventually that new thing maybe gets rolled back and becomes a new version of the established legal text practice.
Digital accessibility lawsuits, ten years old really. The vast majority of the activity over the last four or five years. So it is still fairly new to a lot of people and there are a lot of lawyers who don't know this stuff. There are a lot of lawyers — somebody gets a demand letter and they say well, I'm going to call my lawyer. And what are the odds that lawyer actually knows about digital accessibility? So that's why we created these. Quick pause for questions then we're going to jump into the actual guidance.
KRISTINA LAUNEY: Tim, I think these started as dos and don'ts. We were supposed to do the view from each side of the bar and then as we started talking, we thought you know, we each have our list of things that we think are good that the other side does and things that are counterproductive that the other side does and things that our clients or consultants do that are productive or not to the end.
TIM ELDER: I think that's right. Chris is right. Is subject to whatever ethical regulation you, as an attorney, have in your particular state jurisdiction. It is also good to have sort of a professional standard so that we can avoid pushback or the things around notice and cure or other amendments to the statute.
We want to make sure that as an industry, we're policing ourselves and behaving in a professional way because if we don't, right, that's when we start seeing the legislature coming back and starting to say if you won't take care of it yourself, we'll take care of it for you. Something to think about.
CHRIS LAW: All right. We'll launch into the actual best practices. What's going to happen is that I'm going to read each of the best practices one by one. There's 21. We may not get to all of them. We're going to spend at least 25, 30 minutes going through this and Tim and Kristina are going to talk about the process or how they ended up on the best practices. It is not word for word for what's in the prior publication. So we'll go through that. Then we'll have time for discussion about what happens next. At the end of going through this. Because up to this point, it's been Tim, Kristina and me putting it together. This is the microcosm that created this. It doesn't have the voices of everybody else. And that's what we're trying to think of is do we open this up?
So if you have questions about each — about any individual item, ask the questions as we go through each individual item. General, bigger discussion points we'll get to at the end. Best practices. Starting with plaintiffs' attorneys.
Number 1 was send a letter before filing a lawsuit. Most companies hate/do not want a lawsuit on the public record.
TIM ELDER: I think most experienced practitioners particularly if you're in federal court, most people will know to send a demand letter first. Hopefully that's a given. You want to do that for a couple of reasons. If you can resolve it for your client without the work of a filing, that's better. Two as a practical concern for recovery of fees, in many places, if you want to deal with fee shifting down the road, if you didn't send a demand letter, you might have a problem. Always good to send a letter to give the person a chance to resolve it.
Maybe there's some nuance about what do you put in the letter? How specific do you need to get? Do you need to particularly name your client? I think it's best to include the name of your client and to give enough of an experience with the website to establish that this is a credible claim. I tend to put more information now in demand letters than in the past to differentiate the letter that our firm sends from maybe the letter that the serial folks are sending. So that looks much more cookie cutter. We try to include a little bit more detail. But without giving a full expert report disclosure in the demand letter either. There is a balance there.
KRISTINA LAUNEY: I'll just say that that makes a huge difference, Tim, especially with companies seeing a lot of demand letters. Some of which are a single very short paragraph. The detail that lets them know. I actually have a real client who really wanted to use your services and really couldn't because of some specific reason. It lets them know that it's not just one of these attorneys or plaintiffs who aren't really in it for the right reasons and it makes them more receptive to talking.
CHRIS LAW: Number 2 is consider structured negotiation and stay true to structured negotiation's principles. There might be some people on the line who don't know what structured negotiations is. Who wants to take a stab at explaining that?
TIM ELDER: Sure. Structured negotiations is an agreement to enter a process where you focus on negotiating a resolution without the pressure of — and the cost of litigation happening in the background. So it protects statute of limitations so you don't actually have to file the lawsuit or rush to get everything done. And it also gives the plaintiffs' side some protection. You're not offering all of this information to help moot out the case and provide no access to fees. There is usually an expectation. If there is an agreement that comes out of the structured negotiation, there's going to be some provision of attorney's fees but it will be a reasonable, lower amount because your time is really narrowly focused on negotiating a fix, not in drafting discovery requests and taking depositions. So it can be a win/win. There's a lot more freedom to share information. Like you can just have a candid conversation and exchange information in a very informal way without fear about — on one side that the claims are being mooted. On the other hand, that you're providing ammunition to advance the litigation strategy.
It is a good process. Have you to talk to your client and make sure this is something that's in your client's interests. Sometimes public vindication in the court in a very public forum is a priority for the client. Sometimes getting a precedent set is a big priority of the representation.
So as always, check in with your client and see what their interest is in the outcome. But it's often a good option to offer because with the right parties and with the right interests, it is a much more efficient approach. I don't know that every single case should go to structured negotiations but it can be a very useful process to resolve the matter and to do all of that in a very effective way without court intervention or litigation overhead expense.
KRISTINA LAUNEY: I don't have anything to add to that. That was well said. Other than the screenshot you had up previously, Chris, had a footnote to Lainey Feingold's book. Maybe you can throw that link up in the comments if anyone is interested in more about that. Lainey Feingold wrote and published a whole book on it.
CHRIS LAW: Lainey Feingold's book, LFlegal.com and there will be links to her book there.
TIM ELDER: One quick thing I would add. In your demand letter, if you're sending it to someone who doesn't know what structured negotiations is — when we're requesting structured negotiations, we'll often put a footnote to Lainey's book or some online resource so that the defense lawyer who might get this demand letter can do some homework and understand. Kristina and her firm, they're very familiar with structured negotiations. We've got active matters with her firm now and have done so in the past. But I've been communicating with a lot of defense lawyers in our other cases, they have not even heard of structured negotiations before. So that resource on Lainey's page and her book is a good footnote to include in your demand letter if you're specifically referring to structured negotiations because not everyone know what it is.
KRISTINA LAUNEY: Real quick on that point, from the defense side, one quick note is that I do quite often have to explain to clients what it is. But I do not think that I have had one client who has gone through the process and not thought it was a very productive process.
CHRIS LAW: This next one I think might be fairly quick. It is rooted in real world experience here. If you isn't, don't do a lousy copy and paste job in a form complaint.
KRISTINA LAUNEY: That one speaks for itself.
TIM ELDER: I will say be efficient. There's nothing wrong with using a complaint as a template. I think most plaintiffs' lawyers use their previous work product as a template because it saves time. But don't cross the line and use that as a shortcut to your factual investigation. Take that as the template but fill in the colors and the specific facts.
CHRIS LAW: Lousy job is where you would get the name of the company wrong or the product wrong.
KRISTINA LAUNEY: It happens all the time! If you're a company, it immediately — it makes your very first impression of the plaintiff or the plaintiff's attorney as they're just after us for money because they — they're not even after us. They're after just some random company.
CHRIS LAW: Yep. You're not going to make a good second impression, are you?
Moving on then, help the company understand what real barriers your client encountered that actually prevented him/her from accessing a good or service of the public accommodation.
TIM ELDER: I think even a sentence or two to explain what the accessibility problem is. It is one thing to say the website is not accessible to mobile apps, not accessible according to standards. Go ahead. Put that in there. But just put some flesh and blood on the letter so that the defendant can understand the significance of the barrier. It may not be enough to get the other side engaged in a conversation. If you can put some specific, personal experiences that the client has had, that helps separate the letter and the conversation from some of the stuff that's going on in the high volume world right now.
KRISTINA LAUNEY: We could talk about this one all day about specific examples but I think Tim just summed it up there. In the interest of time.
CHRIS LAW: The counter to that comes in the next one. The other side understand that some companies, even those that are large and seemingly sophisticated may not be aware of this issue or may have large structural hurdles to overcome. Do not mistake this for opposition. What do you mean by that?
TIM ELDER: A client may be very mad and may be very upset about the access barriers that they've experienced. They may have encountered a long list of inaccessible websites and they're just tired of the tedium of having to send an email to customer support to complain about some accessibility problem. It doesn't get fixed. And then maybe it escalates to calling an attorney.
So that's a common pattern where people raise accessibility concerns and they get dismissed. It's like a Twitter robot that maybe responds or some generic customer service email and they never hear back from anyone at the company.
So I think as a lawyer, sometimes you need to help the client navigate some of that frustration. To understand the complexities of large entities and the bureaucracy of things. I don't think most entities are dealing with website accessibility in a — with a lot of malice. It is disregard and it is not a priority or they hadn't thought about it. Sometimes there needs to be some attention to help your client navigate those frustrations when appropriate. That's all that we were look at here.
KRISTINA LAUNEY: These slides, Chris mentioned, 2019 when we did this. A couple of years old now. I would probably change number 5 now to qualify they may not be aware of this issue. Even three years ago, there were a lot of companies that it was new to them. They hadn't heard of it, for better or worse. I think that's the exception now. Most are aware but the large structural hurdles to overcome, especially like a lot of people think the bigger the company, the greater the resources, the easier it should be for them. Quite often, it is exactly the opposite. The more bureaucracy and approvals, et cetera that you have to navigate that almost make it more difficult.
The awareness is mostly with smaller companies now, the kind of mom-and-pop sort of ones that haven't been aware of it yet.
CHRIS LAW: Yeah. And that goes into this next one here as well, same sort of thing going on. Do your homework and understand the severity and nature of the access barriers in your case. Don't unnecessarily invest six figure litigation budgets on $6 barriers. It is knowing about the technologies, right?
TIM ELDER: Maybe I would rephrase this. We did do this a while ago. I think the general point is just be aware of how your technical violations translate. Don't hang the case on something that is pretty simple to fix. It doesn't completely interfere with the actual experience on the whole.
I kind of think of these cases when I'm assessing the merits of a case, I kind of think of it in the severe or pervasive mindset that it comes out in employment and also work environment kind of things where you can have some — you can have a single WCAG violation like the submit or checkout button that's completely inaccessible. That's one single violation but it is an absolute show stopper in terms of the user experience.
At the same time, you could have hundreds of unlabeled graphics or lack of heading which slows down, delays or hinders the ability of the user to use the website with the same sort of convenience and ease of use as everyone else. A pervasive problem, even if it is something that people can kind of navigate around, it still is not providing equal access. That can be the basis for a claim as well.
So just know the difference between these severe or pervasive access barriers and now technical violations translate into the actual user experience because we're going to see development as to what — does the WCAG became the standard as a matter of law and what does that mean going forward if that standard is altered? The WCAG is an evolving standard. I've already seen some signs that the industry is thinking about ways to alter that particular standard to make it more flexible. It is something to be concerned about. So just understand the significance of the barriers both in terms of single things that are severe and a large number of things that people can navigate around but on the whole, really do detract from the overall experience over time.
CHRIS LAW: I'm going to bring in a question that came in from Jessie and also then going to put up the next one because I think that they're related. The question — I think you've covered maybe some of this, Tim, I sometimes find — question about identifying barriers in the demand letter. I sometimes find the entities want/expect plaintiffs to explain every barrier they want fixed before agreeing to structured negotiations. Presumably to try to fix discreet issues. How do you navigate the line between giving enough detail to show the problem is real and pervasive but not providing what amounts to a full expert's report on barriers on site before defendant even has agreed to structured negotiation? Very long question, Jessie. Love it. Very long.
Before you respond, Tim, I want to bring in this next one in our list because I think it relates as well.
Be prepared now to try the case without relying on discovery because technology changes quickly and evidence of digital information easily spoils. One transitions into the other there maybe. Tim?
TIM ELDER: I hear that. It is a solid question. I don't provide a full WCAG breakdown of every single barrier. My perspective is if you want to have that level of conversation about the remedy and the fix, then you gotta at least agree to enter it into structured negotiations or have some kind of a protection that if we're going to invest all of this time in helping you fix your website, it is not for free and on the backs of the people with disabilities. It has to be accounted for. I wouldn't give that level of detail.
I would do it more anecdotally and say my client tried to use the website and they were unable to get the same information as others because of the way that it's organized or they tried to complete a particular transaction and there were barriers in this flow that prevented them from doing it. So if you've got a damages claim that's available, you have a little bit less to lose by trying to let them know what happened in the demand letter. Because the damages claim still survives. That's how I approach it, at least is give them more anecdotal, narrative explanation. If they want the specifics, they need to at least be willing to enter into structured negotiations.
They do typically want to see like how bad is this? It is good to let folks know this was a pretty inferior experience for my client. That doesn't mean you have to give them your expert report.
If the case is going to litigation, I typically have an expert report already done. And that's just my approach to litigation. I would say going forward, the way that these cases ought to be litigated, right now, it is so focused on individual WCAG barriers, it is like whack-a-mole. At some point, the plaintiff wants to start looking at systemic issues where look, our expert did a review of your site every two months over the course of this litigation. And they identified that the website is getting worse or is stagnant, problems are not going away.
So even if you fixed every single last violation, the likelihood that something will pop up on the next release is high. So maybe there is this issue of how you approach things in the maintenance of the website and the culture of the administration of that site. That's the real barrier, not the whether a heading had a label or not. But it is the way that you're managing the site. That's probably where these cases start heading at some point is the more systemic view of the way the website is managed.
CHRIS LAW: Sure. Okay. So that's the 7th and the last on the plaintiff's attorneys side and now we're going to go into the defense and compliance attorneys side. Just before we do, there are 14 here. We're not going to get to 14 within the next 10 minutes or so. What I want people to start thinking about is what we presented up to this point is here's a best practice. And you can have expertise associated with that that isn't necessarily encompassed within that small best practice part. This is how all standards and guidelines get created. This is how — every statement is short and concise and then there's lots of supporting information that comes under it and then other references that link off. This is the type of thing we're talking about. We're not asserting anything here in stone yet. But that's the question of what happens next. Just trying to frame it so when we get to the discussion in five to ten minutes, we can start thinking about what is it that we want to do collectively as a field with this type of information.
With that, it is now Kristina's lead. She's on the defense side. The first one was knowing the law. If you don't, associate with an attorney who does.
KRISTINA LAUNEY: We covered that one actually. It's important to know this area of the law. It is a specialty. If the attorney handling the matter does not know the law, it is not going to help anybody on either side.
CHRIS LAW: Again, based in practice. As we said.
TIM ELDER: I will say as a plaintiff's lawyer, having a defense lawyer who understands the law is so much easier than someone who doesn't know it because they make bad decision or litigate it poorly and it creates a ton more work for the plaintiff just to sort out the mess.
KRISTINA LAUNEY: To Tim's point earlier, there are a lot more attorneys on the plaintiff's side that aren't disability rights specialists and it is really the same thing. Very hard to reach a resolution with someone who won't get off of a technical WCAG issue.
CHRIS LAW: A lot of this mirrors the process so 1 and 2 on each side is mirroring the process. But as we have them right now, we don't have headings like this is the beginning of the process. This is what happens when you get into later stages. Those are the sorts of things we could create for later on.
Number 2 on the defense side was always respond in writing to a demand letter well in advance of the indicated deadline. Many plaintiff's counsels will agree to reasonable extenuations of time to suspend a filing if there is at least some attempt at communication. Speaks for itself.
There was a nice question that came through from Rick. How do you tell a defense attorney or in house counsel that they don't know the law — in a nice way?
KRISTINA LAUNEY: What's your technique, Tim?
TIM ELDER: We try to just do a very thorough — almost like a research memo approach where it is like some kind of a junior associate offering a neutral assessment of the state of the law. We often have that work product around for things. We'll talk to them in person and hopefully we'll explain something. If they don't get it or it seems like they don't understand, we'll send some cases or things for them to look at by email. It depends. Tone, obviously. I think honestly being clinical about it and saying there is what the law is. Read these cases and here's what they say. And do it in a way that is easily digestible. If you do it at a very high level — break it down so that they can read the memo. Without having to do a ton of extra research on what you're saying.
CHRIS LAW: Number 3 was never respond to a demand letter with intimidation. Many plaintiff's counsel will jump on the chance to litigate if the response to the demand letter is aggressively defensive. This probably changes over time. Kristina, are you still seeing this type of thing?
KRISTINA LAUNEY: This one came from Tim. It is not my style to respond to a demand letter with intimidation. I don't think that's productive. But I'm sure he's seen some.
TIM ELDER: We've gotten a letter that says we don't have to do this. Then there is a different law firm brought in and the client's perspective is way different.
We make precedent by litigating the cases. If you're going to give us an opportunity to make a precedent, then sure, I guess this is mostly for a defense perspective. But that's where it really comes from. I don't think it's productive if you intended to really resolve the case to try to be really aggressive in your response to the demand.
KRISTINA LAUNEY: It is worth noting that I don't think we had this on the plaintiff's side — it works both ways, too? It is not Tim's style to send an aggressive demand letter. But I have seen some of those and those immediately put the company on the defensive. For me who's someone who thinks that it is always worth seeing if we can try to work things out first without spending a bunch of money on litigation, it makes it hard for me to talk to my in house client and say hey, we should talk, when the initial missive is not of that tone either.
TIM ELDER: It does depend on your client. Some clients really want to take it to court and deal with it in a public way or establish something. You have to keep in mind what your client's concern is. Be professional. No one wants a bully.
KRISTINA LAUNEY: That's the bottom line for sure.
CHRIS LAW: The next one was pretty much building on that. Catalyst fees are also within the book. I had to look that up. I do want to take 20 minutes to get discussion and feedback from the audience. Kristina, are you okay with cutting it off here and beginning that conversation?
For those who are wondering what were the other ones, the book is available. Put up the website for the event. Out of this, we may post these best practices on a web page on our legal event website. If we want to.
For now, what I want to do is skip ahead. Excuse the zippy skip ahead going on.
KRISTINA LAUNEY: Can I just respond to Marissa's comment. Does the book also include best practices for in house counsel. I don't think it does. I'll go through the couple of slides we didn't go over. There might be one or two that goes to those but Marissa, maybe that's something that you and I should talk about.
CHRIS LAW: The book actually covers — because you had a set of best practices also for accessibility professionals. Because they're the third player here as well. One of the things we talked about was corporate counsel and in house counsel as being one of the areas to expand into and maybe invite for coming into the legal summit and talking about issues from their perspective and also guidance from their perspective. That part has not been covered. If you want me to go back to any of them I can but I want to bring in other folks to start the conversation going.
TIM ELDER: We don't need to go over these but I would encourage in house folks to look at the book and get the material because it is very applicable. We do get responses where the in house counsel is trying to resolve the matter on their own before hiring Kristina or others. It is applicable. The in house folks that are sort of trying to manage things on a lower — at a lower scale and to do it. That's useful. Frankly, I think it helps in house counsel assess is my external counsel following this stuff and what — how are they to be evaluated? I think it is useful for in house folks.
CHRIS LAW: As you can see from the discussion to this point, each of these things — you get a team of lawyers together, a bunch of friendly lawyers like we have in this conference and we could have conversations that would go on until midnight. So we never really intended to get through all of the things this afternoon. But we wanted to start off this conversation of — I really did because I think Tim and Kristina are both very busy people. Much busier than me. But I'm the sort of person who says hey, let's create this and send it out to the world and make it into an actual guideline and standard.
I've even studied the development of standards and done research reports on the whole process as well. So it is my wheelhouse and I'm trying to pull everybody along.
So the question is that I have for folks and feel free to unmute yourself, show your video if you want to is to say to the people on the call here who's interested to join an effort if we created this in order to create something for the field?
If everybody is silent, we won't.
TIM ELDER: Questions are good, too.
CHRIS LAW: Questions, sure. Everyone is like I really want to see my kids this summer.
KRISTINA LAUNEY: Chris was saying this will be great. Tim and I were like oh, boy, putting something else on our plates. You want to make sure that it's really something that would be productive and something that's needed. Chris had mentioned this as well that some of what are dos and don'ts are founded in are things you should be doing as your professional ethics as a matter of being licensed attorneys in your jurisdiction. Some are very specific to accessibility law and practice.
Like Chris said, is this even necessarily needed? But some of it does certainly layer on top of distinct from ethical guidelines or standards that we're subject to.
CHRIS LAW: I stopped the slide show so we can see people's faces easier. If there was an ad hoc committee, would anybody be interested to join?
This is John. I'm chiming in because when the Disability Rights Bar Association decided that we wanted to do something along these same lines, develop a set of best practices, and a lot of it just as things worked out, focused on digital accessibility, we kind of sort of knew that you guys were working on this. The reason we were never able to really connect.
CHRIS LAW: Okay.
We came up with a lot of the same ideas. Certainly put us down as somebody who wants to work with you on this.
CHRIS LAW: Yeah. Who was saying that?
KRISTINA LAUNEY: It was John Waldo.
TIM ELDER: I think the DRBA has — correct me if I'm wrong, there is a subgroup or working group that was meant to kind of look at some of the same issues from a different perspective but —
You're exactly right, Tim. I was the person for that. We came up with a lot of the same ideas you did about the need for particularities, specificity, if possible, advance warning.
CHRIS LAW: Full disclosure here, if such guidelines would come out and were hosted by ABA, I would be more than happy. I would rather somebody else was doing it, it would give me time to go off and do other things. I've still got other projects I want to work on. So yeah, I think — here's the question, would people feel better about it if it came from an authority like that? The digital accessibility summit is not a legal entity. It is not a business.
It's important to remember, Chris, when I'm talking about DRBA, we were talking only about the plaintiff's perspective. Yes, having Kristina or somebody like that also get involved would be great.
KRISTINA LAUNEY: Tim, maybe you know this and John you maybe do, as well, I know we have some of our colleagues who are very active in the New York disability rights section of the New York state bar. And that association has practitioners from both sides of the aisle. And I don't know if there is a unit within the American Bar Association or otherwise that kind of like the employment sections of the ABA are both sides. Is there an organization that would pull the broader group in?
TIM ELDER: I think there is the ABA's commission on — they changed the name recently. It is the commission for disability rights. I think we have a couple of commissioners in the audience who could correct me. But the ABA does have a group that has the expertise of disability rights in it. That could definitely be the special committee or entity within the ABA that takes this kind of a thing on under the ABA umbrella.
This is Jack. I know you and I have talked about this. On the technical side, the technical teams can go to the W3C and get information and anybody who is not well versed can get information. I think from a legal perspective, in talking to various clients and we've had people inquiring in the last five years, they're always grasping for straws as to where they should go unlike the technical side. So from a legal perspective, they talked to a family or friend or colleague or ultimately a law firm and we've talked about this at the summit before. Legal publishers, the West Law and the Lexis is most people aren't going to pay for a subscription to solve one of these issues. So I do think there is an overwhelming need for this within the legal perspective. One of the things of looking from the future lawsuits, the number of things being requested because of COVID, we've seen a significant increase over the last year. I think that's going to be a field of legal — is going to be a legal minefield because you have so many companies that are filling the documents out and aren't necessarily doing them correctly and the liability is going to fall on those companies.
So where does somebody go from a legal perspective to ask these questions and to have this information? And I think that's really where there are opportunities for all of us to put together that information. Kind of a one stop shopping.
I know you keynoted it by saying everybody is busy but there is definitely a need out there. I see it as a growing need.
TIM ELDER: I want to highlight something Jack said which is exactly right. This is definitely an issue where companies say they're accessible or developers say that they're accessible or they have some accessibility requirement in a contract and they're not even close. That's a big thing.
I think we will see more cases being litigated like that. Our firm is handling right now a government fraud case that is based on that kind of a fact pattern. I think that will — that is where more work could be done and where I think this group will find some work to do in terms of precedent setting litigation.
KRISTINA LAUNEY: That's a really good point because as attorneys who have to be advocates for our clients no matter which side they're on, there is still this middle ground where there's so much gray that — and it includes not just what we came to the session to talk about that Chris had framed but also the things that you mentioned, Jack, that could really benefit everyone if the folks who practice in these areas could bring their different perspectives to the table and provide some guidance.
That goes back to the symposium and the discussions Chris and I originally had is where does someone go to get this information? A compilation of blogs and bloggers and Kristina, you do an incredible job and then you have companies that compile all of the information. You really can't find it all in one place. That's the huge challenge. Unless you're a lawyer and you know where to go for the information, you're not going to be able to find it.
That whole thing with what I said about ACS and — you have everybody and their brother filling them out and most of the people who were inquiring originally are salespeople. I have an RFP I have to fill out. I have to have it. So they're just going to anybody and everybody and usually the lowest price wins and it is not done correctly. So when they get sued by a state or school or the federal government, it's like well, you signed it. You have the legal disclaimer on here. This is what it says. Nobody knows where to go for that. They're not going to call you for that advice when I'm filling it out.
TIM ELDER: I would be curious to hear if Kristina has dealt with the situation where you have an ADA oriented dispute between the main frontline public accommodation or government program or activity and then there is this third-party technology developer or contractor. I know that happens in ADA physical access cases where you've got the landlord and then there's some dispute. So the contract gives the ADA defendant some indemnification or other remedy against the other party. Are we seeing that in any of the website accessibility cases? Maybe it's not high dollar enough yet. Is that happening out there?
KRISTINA LAUNEY: Are we seeing lawsuits against developers, Tim, or are we seeing contractual provisions or even contractual disputes between the vendor and the end user?
TIM ELDER: Contractual disputes between the public accommodation and its technology vendor.
KRISTINA LAUNEY: Oh, yeah. So it's been a really interesting evolution, right? Because a couple of years ago or more — lost look track of time here — I would often have conversations with a third-party vendor to try to vet what they knew about accessibility, whether they had the ability to code the website for accessibility because a lot of times companies had their websites built by third party vendors before they realized that they needed it to be built to be accessible so you go back and have the conversations with the vendor.
A lot of times it gets pushback from the vendor saying that's not a legal requirement and it is up to the company to say either so what, we want it that way or it's not your place to be telling us what's legally required or not. And then sometimes you would have vendors who would say absolutely, we'll work with you. We know that this is something that's out there and we want to do it. And now most vendors know what it is and might want to charge the company extra to build the website or fix the website so it has the conformance criteria. Others will say we do it and when you dig in and ask them the questions, you're realizing I don't know that they know what they're doing. So it is a tough issue.
CHRIS LAW: We have to — we're getting right close to the edge of time here. Question for Mya from NFB is there a hard cutoff with interpreters at 12:30. Or if we went over two minutes, we would be okay?
We do have a hard cutoff just because we have another group also.
CHRIS LAW: Sure. Okay. So very, very quickly, people, use the raised hand feature if you would like to see these types of guidelines available.
Put up your hand if you would say yes. Three so far.
Four, five.
KRISTINA LAUNEY: I'm not finding my raised hand but I'm really in favor of the broader scope that we've talked about. Perhaps coming from a neutral body.
CHRIS LAW: Not everybody is rushing to say hey, I want to join in. If that's the case, the only way to get this done is to convince somebody or some group to say fund the development of this so that there is an author who develops this stuff and then we can get probably advisers to review things and make comments on them and change them. That's the method I've used where you can get people together to create guidance from scratch.
What we might have to do is to say to some of these institutions, ABA, others, even NFB, NFB is part of the switchboard, it could be done but I'm not going to speak on behalf of NFB. They may decide they don't want it on their site. They don't want to be responsible for it. But somebody might.
It seems like if we do develop this as a number of people want it to be developed, it would require some sort of effort other than just trying to corral people to try to create an ad hoc committee. Do you guys agree with that? Tim and Kristina. We have less than a minute left.
TIM ELDER: If we can get them together, that's great. It is more information. It helps give people some ideas. Or even new lawyers that are starting to get into this. Not as experienced with federal litigation. I think yeah. I'm for it.
KRISTINA LAUNEY: Yeah.
CHRIS LAW: Okay. With that, thanks for participation, everybody. I know we're about to lose the captioners there. Thank you for staying one minute over. And anybody that wants to carry on the conversation, I would just share my screen again just to give contact details.
Tim is at TRE Legal Practice. Kristina is at Seyfarth Shaw LLP. The legal summit, there is information about that. I didn't do the share? Did I? You were look at a blank screen there. The legal summit information www.accessibility.legal. The third one will happen in September. The preliminary agenda won't be posted until mid-April. We're still working on the preliminary agenda. But you can get on the mailing list if you go to that website, accessibility.legal.
TIM ELDER: You might want to put — cut and paste it into the chat, all of those links into the chat if you can.
CHRIS LAW: I will. Thank you for joining us.
Thanks, Tim and Kristina and everybody who posted questions. Sorry if we didn't get to everybody's questions. Please contact us.