Advocacy Series (part 2): Litigation Strategy
Thank you again to the Buchner Family and the CACNA1A Foundation for the opportunity to once again contribute my litigation insights for your members and readers. The intent of these posts is to educate folks on various options in advocating for yourselves or your kiddos with disabilities, as they encounter ignorance, exclusion, and discrimination out in the world. The good news is – there are a TON of resources and organizations to help fight for your child’s rights and achieve equality of opportunity, more than ever in history, and we’re only getting more experienced and effective!
Whether it’s a problem with a school, health care provider or insurance company, recreational program, or even a city sidewalk, U.S. laws are strong and provide ample means of rights enforcement. Leading up to the passage of the Americans with Disabilities Act (ADA) in 1990, Congress recognized that children and adults with disabilities have historically been marginalized, if not institutionalized. The “medical model” of disability had governed for decades, focusing on medical needs, “cures,” and other non-rights-based notions. The passage of the ADA signaled the modern era – an era of empowerment and self-determination, in which people with disabilities are treated with respect and dignity and afforded enforceable rights to live independently and on their own terms. We all deserve nothing less.
Under the ADA, and a variety of other state and federal laws, people with disabilities enforce their rights through private, nonprofit, and/or government attorneys who typically get paid their fees from the defendants who have violated the law. This is tremendously important because without the attorneys’ fee provision of the ADA, or a government civil rights office taking up the cause, there would be little to no legal enforcement. So, if you feel your or your child’s rights have been violated, talk to an attorney – there is no harm in getting a consultation – and if it appears to be a good case, you will likely be able to retain counsel on contingency (i.e., without paying unless there is a judgment or settlement). Do not hesitate to simply ask if there’s something an attorney or advocate can do; the answer very well may be “Yes!”
In my previous post, I discussed what happens next, after you’ve retained an attorney or advocate to work on your behalf. I noted that cases may just seek a modest amount of money damages, but often in ADA cases, there are changes in policies, procedures, and training protocols, or physical access improvements, that are generally far more important than any financial goal. This makes your case important not just for you, but for all others whom the changes will benefit.
While I am here to encourage you to enforce your rights when appropriate, I am also here to share a well-known saying in the law: there are usually three versions of what happened – your version, their version, and the truth. The “discovery” process of a civil court case involves getting the facts and evidence out in the open – each side can ask the other (as well as non-parties) questions under oath, and request records including emails, texts, and sometimes medical and employment records if they are relevant. This is designed to get information out in the open so the parties can understand the other side’s position, and so the lawyers can make recommendations to their clients, and prepare the case for trial.
Remember that you’ll need to be patient, as the wheels of justice (and discovery) often turn very slowly. And you’ll also need to be prepared to answer questions under oath, often while being videotaped, at a deposition. Both sides can convene these depositions (nowadays routinely done via Zoom or another online service), and ask relevant witnesses wide-ranging questions related to the case. If your child is able to understand and answer questions, it is possible, though fairly rare, for children to also answer questions via deposition. Thankfully, the vast majority of attorneys are professional and do not “harass” those being deposed, but you do need to be ready to answer the tough questions in your case, and your attorney should absolutely have you well-prepared to do so.
Fortunately, once the discovery process is done and the facts are on the table, a majority of cases are resolved through settlement, often via the mediation process, which is where the parties engage a neutral mediator to work with the parties to reach a compromise and a final written agreement. In fact, only a small percentage of cases filed with courts actually go through a full trial. In many cases, a settlement isn’t reached until very close to the trial date, or sometimes even after the trial has begun! The good news is that settlement is always an option, and as the client, you have the final say. Your attorney is obligated to communicate all settlement offers to you, explain them to you fully, and discuss the pros and cons of accepting any particular offer. It’s then up to you whether to accept the offer and if you do, your attorney must communicate that to the defendant.
So what about when cases do go to trial, and what’s the difference between a court trial and an arbitration? They are very similar; they are both proceedings held before people hearing testimony and reviewing documentary evidence, and considering each side’s legal and factual arguments. Civil trials in court may be held in front of only the judge, or in front of a jury – this is often determined by the parties’ choice (unlike criminal trials). Arbitrations are generally held in an office conference room, rather than a court, and are in front of an arbitrator selected by the parties from a list of experienced attorneys and former judges (some high-value arbitrations are conducted with three arbitrators). In each instance, you are putting the fate of your case in the hands of a stranger, so choose wisely on whether to accept that settlement offer or not!
One primary difference between typical court trials and arbitrations is that arbitrations cannot really be appealed. If you and your lawyer disagree with a court or jury’s decision, you have the automatic option to file an appeal and a panel of appellate judges will review your case and decide whether an error was made warranting a reversal. Arbitrations are, by design, faster processes that cannot be appealed unless there was a truly egregious procedural error or the arbitrator ignored the law, which is possible but very unlikely. Thus, once a case goes to arbitration, you know you are getting a final decision, for better or for worse. And for this reason, many plaintiff attorneys do not favor arbitration, as we prefer to have an appellate process that can revisit cases we feel were decided incorrectly.
In a future article, I will cover a different legal process – the administrative special education complaint. As parents of children with disabilities, we have a whole other legal avenue available to us, and it is generally much more responsive and efficient than a regular court case, and there are a growing number of lawyers practicing special education law.
Until then, if you need any information or referrals, or think you have a case, please feel free to contact your local bar association, or even us at the Disability Rights Legal Center. We are happy to help as best we can on any matters on behalf of adults or children with disabilities. Until next time!
Christopher H. Knauf, Director of Litigation
Disability Rights Legal Center
www.drlcenter.org