| The Pro-Se Project: A Dissenting View
by Amy Robertson
Amy Robertson is an attorney with the Denver law firm of Fox & Robertson, which specializes in the Americans with Disabilities Act and other disability rights and civil rights cases.
A number of publications, including this one, have published a sort of pro-se lawsuit kit that shows people with disabilities how to bring their own lawsuits--without a lawyer--under the Americans with Disabilities Act. I would like to, as judges often say, respectfully dissent.
I must start with background and a disclaimer: I'm a lawyer who practices disability rights law, so I have a natural bias in favor of hiring an attorney to bring an ADA lawsuit. I like bringing suits under the Americans with Disabilities Act. I practiced for years doing generic commercial litigation before starting a civil rights law firm with my husband, and we both love the work. We also make money doing this--it's part of how our firm pays the rent. And I know more than a little about how ADA lawsuits progress and the potholes that the ADA litigant is likely to encounter.
An individual should file his or her own suit only in the easiest and clearest of cases. In more complicated cases or ones in which the need for the alteration, modification or accommodation is a closer call, the individual should at the very least consult an attorney--even if you have to pay--or, better, have an attorney ready to step in if the going gets rough. I will moderate this advice somewhat with this geographical/political fact: courts in some regions of the country are more friendly to ADA suits than in others. I would be much quicker to encourage an individual in Pennsylvania, New Jersey, California, Oregon, Washington, Nevada or Arizona, for example, to file his or her own suit. In Colorado, where we practice, and many other states in the mid-west and west (e.g., Ohio, Indiana, Kentucky, Kansas, Utah) I would almost always advise against it. The nuances of particular courts and even particular judges are part of what a good attorney can explain to you and work with in his or her handling of the case.
I'd like to offer several reasons why it's a good idea to hire a lawyer and a couple of thoughts on why it can be a bad idea to go it alone:
The ADA has a provision for shifting attorneys' fees. That means if you win the case, the defendant pays your attorneys' fees. What this also means is if you have a good case, you should be able to find an attorney to represent you, because the attorney will know that he or she will get paid by the defendants if you win your case. It is our policy, for example, to represent plaintiffs with claims under the ADA without charging them for attorneys' fees. If we win, we will get fees from the defendant; if we lose, that's our problem.
Going to court with a lawyer is a lot easier than going it alone. Candidly, what we commonly encounter is not a lack of attorneys willing to take ADA cases, but a lack of clients willing to go to court: people with disabilities face all sorts of violations of Title III, but when they bring these violations to our attention, they often tell us they don't have time to bring a lawsuit or don't want to rock the boat. Being an ADA plaintiff does take some time and effort but it takes a whole lot less time and effort if your attorney is doing the research, writing and arguing with opposing counsel.
A lawyer can often point out other legal remedies in addition to the ADA. The ADA permits you to force a business to remove architectural barriers and modify policies but it does not permit you to recover money damages. However, situations that violate the ADA may also violate other state or federal laws, some of which may let the plaintiff recover damages. A creative lawyer will help you consider these other approaches.
Even if you are "not in it for the money," the threat of a damages award can be a good incentive for a defendant to settle quickly and give you the architectural or policy changes you want. For example, we recently brought suit on behalf of the Colorado Cross-Disability Coalition and a number of individuals with disabilities against a local outdoor amphitheater that had insufficient accessible seating and often used the accessible seating area for sound or lighting equipment. Many people with disabilities arrived at concerts or shows to find they could not use the seats they'd purchased. We sued under the ADA and Colorado's consumer protection law--which provides for triple damages. This played no small role in our ability to obtain--in settlement--monetary recovery, class action status and excellent architectural renovations.
Many Title III cases settle quickly and can easily be handled by an individual. However, defendants who decide to fight you will fight hard and they generally have lots of money to spend to defeat you. Without a lawyer you face the possibility of incurring enormous expense and run the risk of, with all due respect, making bad law that will color the interpretation of the ADA in future cases. Before you get to trial, you will have to, at the very least:
- Hire expert witnesses. If it's a "readily achievable" architectural barriers case, you may need an architect and a structural engineer. If it's a policy modification case, you may need an expert in the defendant's field of business. You will often need a financial expert because the question of what is "readily achievable" depends on the business's resources. No matter how reasonable your request, I guarantee you the business will have its accountants testify that, despite its millions, it really has no spare change. Your accountant will have to prove that they are hiding the ball and do, in fact, have plenty of money. Experts charge by the hour and, unlike lawyers, rarely do contingent fee work. Total fees range from $5000 to $50,000.
- Demand documents and take depositions of their witnesses. This is the way you find out, before trial, what their evidence and testimony will be. If they stonewall you, you'll need to know how to make a motion -- with supporting case law--to force them to comply. And depositions cost $500 to $1,000 each.
- Answer legal motions by the defendant. You will have to answer legal motions, researching the legal issues and citing cases from around the country. For example, What constitutes a "reasonable modification?" How have other courts defined "readily achievable"? Do you have standing to sue in the first place (this comes up all the time)? You'll need access to legal databases and the ability to do case law research. Most important, whatever the judge decides applies not only to your case but to all future cases in that court and may be used by other courts as well. So, again with all due respect, if you can't out-lawyer their lawyers, you may be responsible for making bad law that hampers future Title III cases.
Title III is a powerful statute that will open many doors for people with disabilities--and nothing in this article should discourage you from pursuing justice under the ADA. The pro se lawsuit is, however, a powerful tool that should be used with extreme care. If you believe that you have a Title III case, consult a lawyer. If you can't find a lawyer in your area, call your local disability rights organization or the local bar association for a recommendation. (If you live in Colorado, call the Colorado Cross-Disability Coalition.) If you have a good case, chances are you'll get a good lawyer to represent you and will prevail against even the most recalcitrant defendant.
How we do itby Julie Reiskin
Julie Reiskin is director of the Colorado Cross-Disability Coalition.
As a person with a disability, I benefit daily from our civil rights laws and the support services for which we have lobbied. Consequently I am busy (too busy, according to my significant other!): I have a job as the Executive Director of a large civil rights organization, a family, and several outside interests.
While in the process of living my life, I often find violations of our hard-fought civil rights laws.
I used to ignore some of these violations and deal with others, depending on my mood and the severity of the violation. When I chose to deal with problems, it took time. First I had to research the issue: Was it new construction? A rehabbed property? Was it locally owned or a franchise? I had to write a letter to the offender, and even finding the address of a corporate owner takes time--and sometimes it's difficult for us non-attorneys to know where to look.
If I couldn't resolve the issue and thought I should go to court over the matter, there were more tasks involved: Going to the trouble of filling out court forms, getting to the courthouse to file them--either coming up with filing fees or filling out yet another form declaring my poor economic status--all these tasks that I had to carry out reduced the chances that I would actually follow through with a case.
I firmly believe that we all, as disabled people, have a responsibility to make sure our laws are enforced. But precisely because of these laws, which get more and more of us into the community and into jobs, more and more of us have active lives.
For me, it was a constant balancing act deciding how much time to spend living my life and how much time to spend doing law enforcement. Before I had a job in the disability field, enforcing our rights meant taking time off work, using either vacation time or sacrificing pay.
A couple of years ago, the board of the Colorado Cross-Disability Coalition decided that we needed greater access to the legal community for civil rights enforcement and other legal needs of people with disabilities, and so we ran an ad in our newsletter seeking attorneys interested in doing the work. After a response by Amy Robertson (see accompanying article), our legal program was born.
Now when I or other CCDC members in Colorado experience a civil rights violation, we report it to one of three attorneys working with us. They do the research, the filings, and all the other time-consuming tasks. Yes, I still have to make time for depositions, hearings and reviewing the documents my attorneys prepare--but the amount of time is reasonable and does not unduly interfere with my life.
I don't pay for any of this. I couldn't--not on my income. The attorneys seek attorneys' fees and costs from the defendants.
With this legal program, we have made real changes. A local movie theater has improved and integrated its seating for people with disabilities. Wendy's in Colorado is removing barriers. We have over 100 new wheelchair and companion seats at our local outdoor amphitheater.
It seems to me that using disability rights attorneys gives me the best of both worlds: our laws are enforced, good case law is created, and I can still do my job, enjoy my family and live my life. Isn't that what the ADA was all about?
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