Read "The Lawsuit Dilemma."

In a case earlier this year, the defendant -- a major fast-food restaurant franchise -- testified that the weekly profit for the particular restaurant property which was being sued was $500, or an annual profit of $26,000. A business owner is not going to simply spend a week's or a month's worth of profit to fix something because a person in a wheelchair comes in and says they need a ramp or that their restroom needs alteration. A restaurant owner said to me a year ago, "Every year someone like you comes around and complains about getting in here. Every year I tell the person to go away -- and I never see him again. I tell you too: 'go away!' "

A business owner is not likely to spend that money based merely on the requests or demands of a person with a disability.

A complaint one hears often from businesses is that, even if they fix their barriers to equal access, they still end up getting sued. That may be a valid complaint. Maybe you had a problem with using the restroom, but did not notice that the tables really weren't wheelchair accessible. Maybe you didn't notice that the secondary exit was not accessible. Maybe you didn't realize -- or maybe it didn't concern you -- that there was a fire alarm, but no visual fire alarm indicator for people who are deaf. In order for that business to fully comply with the ADA, in order to avoid future suits, the business owner needs to know everything that is wrong with access at the building -- not just what was a problem to the person who is complaining.

If there is to be friendly negotiation, or mediation, instead of litigation, where is the expert coming from to provide the comprehensive evaluation of the property, the identification of all architectural barriers, and suggestions as to how the barriers can be removed? Will the person seeking the removal of the barriers pay the expert out of his/her pocket? Will the business owner who has not been sued, but simply had a complaint from a customer, be willing to pay those fees if not required to do so? Even if the person complaining is an expert in the requirements of the ADA, will the business owner accept that person's statements as true?

Should a person who has an access problem be expected to sit at a table with the owner of a business (and probably the owner's lawyer) and negotiate a settlement without the benefit of having his/her own lawyer there? Considering the games that lawyers play, which of us would feel comfortable at negotiating a binding agreement to bring a business facility into compliance with the ADA while waiving the right to sue?

A man in California sued a city for access violations. He didn't have an attorney; he did it pro se, which means "without an attorney." The city's attorney negotiated a settlement with the man.

After the settlement was signed and damages were paid, the man discovered that in the settlement agreement he signed, he waived his right to ever sue this city again -- for any ADA violations or violations of California law.

How could this have happened? He was simply out-maneuvered by a skilled lawyer. He got one thing fixed, and he received some damages -- but this city can now ignore him for the rest of his life.

Last month a lawyer filed a lawsuit for me against a hotel that was built after the ADA was in force. The hotel has numerous ADA violations. The hotel's lawyer called my lawyer and told him that she visited the property and that there were no ADA violations at the hotel. She suggested that the lawsuit was filed in error, and that we should promptly dismiss the case.[She even tried to convince my lawyer that we had, by mistake, sued the wrong hotel.]

If this was your complaint, and if you had not sued, but simply asked the hotel owner to fix things, what would you do when the hotel's lawyer said this? How would you rebut the claim that the hotel is in full compliance? To whom would you turn, if you didn't have a lawyer of your own, one who could hire an ADA expert?

Because this is a case in litigation, though, we simply served this lawyer with a notice, legal in a lawsuit, that we were going to have our expert inspect the facility. Without a lawsuit, we would not have that right.

Having a lawyer is in your best interest. The business owner will have a lawyer. Shouldn't you as well?

How do you get the business owner to agree to negotiate or mediate without a lawsuit? I don't know. Many lawyers will tell their clients, business owners, to not talk with a person with such complaints, and to not agree to do anything. Maybe the person will just give up and go away. Maybe the person does not have standing to file a lawsuit. Maybe the person will not be able to get a lawyer to represent him/her.

My experience is that we are first taken seriously when the lawsuit is served on the defendant. Once a lawsuit is filed, then negotiation is possible. Once a lawsuit is filed, then mediation is possible. With a lawsuit, the disabled person has lawyer (and the lawyer will, in the end, be paid by the defendant). With a lawsuit, their attorney can hire an ADA consultant, who will also be paid by the defendant. The costs of preparing for negotiating, the costs of drafting settlement agreements, the costs of mediation (including paying the mediator) can all be paid by the defendant. With a lawsuit, there is money to pay for these things. Without a lawsuit, there is no money.

When sued, the business owner has to negotiate -- or s/he will end up in trial. If negotiations fail, judges will order mediation as a step before the case is tried. The business owner then has no choice but to participate in mediation. But without a lawsuit, a business owner can just say "go away."

When I file lawsuits, as soon as the defendant is served and identifies a defense lawyer, we offer to abate the case and negotiate a settlement. That keeps legal fees (both ours and the business owner's) to a minimum, and allows for a quick settlement with most of the defendant's money going to fix the architectural barriers. Just today I agreed to not only abate the lawsuit in a case but to accept the findings of the consultant hired by the defendant's attorney, sparing the defendant the cost of my consultant doing an inspection and report. I did insist on my consultant doing an inspection after the barrier removal alterations are completed, to make sure that the work was done correctly and that no architectural barriers were overlooked by the defense consultant. The settlement will have to include the defendant agreeing to pay for this post-alteration inspection, and there will be penalties if that inspection shows architectural barriers that were overlooked by the defense consultant.

By suing. we are in the driver's seat. We can be nice and cooperative if the defendant is cooperative. We can litigate the defendant into a corner if the defendant is uncooperative. What the litigation costs is up to the defendant, and is determined by how much the defendant wants to cooperate or how much the defendant wants to fight. Without a lawsuit, the business owner is in the driver's seat. The business owner can agree to negotiate or can refuse. The business owner can agree to mediate or refuse. With the business owner having a lawyer and the person with a disability who has complained having no such representation, the business owner is very much in the driver's seat and can drive all over us.

Nonprofit groups handling ADA compliance efforts can be funded through lawsuits. One of the more active disability rights plaintiff organizations in this country has been able do its work because it receives donations from the lawyers who earn fees representing the organization's members in ADA lawsuits. If there were no lawsuits, the lawyers would not have income from this work, the organization would not be getting donations, and businesses would continue to ignore our rights to equal access.

Posted November 4, 2004.

Fred Shotz has worked as an ADA consultant for over a decade, and has been a plaintiff in a substantial number of ADA lawsuits. Visit his website at http://www.adaconsulting.com

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