How to handle an ADA lawsuit … and how not to do it
The hotel lawyers at JMBM’s Global Hospitality Group see a lot of ADA cases and believe the claims will increase tremendously in the next few years as a result of the current political climate, new regulations, higher priorities assigned by the U.S. Department of Justice and passionate private litigants seeking to make the world ADA-compliant.
We get several calls every week from people served with new ADA complaints. Most of these hotel and restaurant owners just want to resolve the litigation at the lowest possible cost, including both the compliance cost and legal fees. JMBM’s ADA defense team has defended more than 400 ADA claims.
Ruskin’s Common Law of Business Balance
We think that John Ruskin had it right in his famous Common Law of Business Balance: It’s unwise to pay too much, but it’s worse to pay too little. When you pay too much, you lose a little money — that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do. The common law of business balance prohibits paying a little and getting a lot — it can’t be done. If you deal with the lowest bidder, it is advisable to add something for the risk you run, and if you do that you will have enough to pay for something better.
How Ruskin’s law applies to ADA defense cases
Here is an actual case study that has some important lessons in how to handle an ADA case ? or, rather, how not to handle an ADA case. When the defendant first called us about this case two years ago, based on our experience with this plaintiff, we knew we could have settled the case for an all-in settlement cost (including legal fees) of less than $50,000.
Although we substituted out of the case, we continue to receive notices of all developments after that and follow it with considerable interest. We were shocked to see that the new defense lawyer and client permitted this case to go to trial. And we hated to hear that the client lost the case, incurred huge legal fees and now is facing an additional $232,000 for plaintiff’s legal fees. We were also concerned about certain precedents that may have resulted from the trial court’s ruling.
Our strategy involved an initial assessment of the architectural and programmatic access barriers at the hotel and putting a resolution protocol in place. The first step was to contact plaintiff’s counsel to meet on site and establish assessment and resolution protocol.
Mistake #1: This is where the defendant hotel made its first mistake. After considering our strategy and resolution protocol, it decided that our hourly rates for implementing the strategy were too high, and they decided to retain counsel with a much lower hourly rate, but also little ADA defense experience. We substituted out of the case.
Mistake #2: The defendant hotel and its new ADA counsel decided to undertake an aggressive and confrontational litigation posture. While resisting a “monetary shakedown” and fighting back is an understandable emotional response to these kinds of ADA lawsuits, a lawyer’s job is to advise his or her client as about all available options and recommend a course of action based on facts, knowledge and experience. The client still makes the call. And, in this case, it was the wrong one.
Mistake #3: The defendant hotel and their new attorney (with little ADA experience) took the claim to trial. An assessment of the architectural and programmatic access barriers at the hotel performed by a knowledgeable access consultant would have revealed what the court found at trial: a number of access barriers existed at the hotel. The trial judge heard the evidence and entered judgment for the plaintiff.
The result: The court awarded the plaintiff damages and attorneys’ fees, expert fees and litigation costs. The hotel now has to remedy the access barriers, pay damages and is on the hook for five times more than the estimated total cost of the defense we initially proposed.
Not surprisingly, the plaintiff’s counsel filed a motion to be awarded nearly $250,000 in attorneys’ fees, and the hotel filed an objection asking the court to reduce the fees to a fraction of what the plaintiff is seeking. The motion is pending.
What is most unfortunate is that it was all avoidable.
As Ruskin said: It’s unwise to pay too much, but it’s worse to pay too little.
Understanding the anatomy of ADA cases is critical in determining outcome. It can be the difference between early resolution and going to trial and losing. It can be the difference between paying the fees charged by an experienced attorney for an economical resolution and losing a court case and thereby becoming liable for hundreds of thousands of dollars in damages, remediation and plaintiff’s fees and costs.