I've just been served with an ADA lawsuit that I cannot understand. What is it about?

Read the lawsuit carefully and find out what the plaintiff is alleging in the section titled "Factual Allegations." The plaintiff's attorneys will try to keep the factual allegations vague for tactical reasons, despite having a duty to be specific. A proper complaint will:

1. State the date or dates on which the ADA plaintiff encountered access "barriers";

2. Identify the specific access "barriers"

3. Explain the way in which each access barrier is related to the ADA plaintiff's disability

4. Explain how each access barrier denied the ADA plaintiff access; or how it deterred the ADA plaintiff from visiting the business

5. Provide the ADA plaintiff’s connection to the geographic area

6. Allege whether the ADA plaintiff has concrete plans to return to the business.

What's the first thing that I should do when I'm sued?

First you should speak with a lawyer, and not necessarily a divorce or bankruptcy lawyer, but a lawyer who takes ADA cases to trial regularly. Avoid the ones who charge several thousand dollars for making one or two calls and settling your case. Don't write a check and settle impulsively. Keep in mind that an ADA plaintiff is not automatically entitled to damages simply because a portion of your property does not conform to the ADA standards.

A deviation from the ADA standards at a place of public accommodation is just the beginning of the inquiry. To be entitled to ADA damages, a Plaintiff must show that:

a. he visited the property and encountered architectural features that deviated from the ADA Standards,

b. the deviation was related to his particular disability,

c. that he was either denied access, or experienced difficulty, and is being deterred from patronizing the business,

d. that he mitigated his damages, and

e. was not acting as a building inspector, but that he genuinely intended to patronize the business.

Your lawyer should hire a California Access Specialist to inspect your property. There are hundreds of inspectors to choose from, and their names are listed by the state of California at the following link:

https://www.apps2.dgs.ca.gov/DSA/casp/casp_certified_list.aspx

Once the issues are identified, you can hire a qualified contractor and make alterations. If you're lucky, the issues will be ones that are easy to resolve.

Restroom related alterations could involve adding grab bars, insulating a drain pipe, or perhaps moving the towel dispenser. These are low-cost alterations. But, if your handicap parking space exceeds 2% in slope in any one direction, for instance, you may have to hire a contractor to eliminate the slopes. That could be a costly alteration.

Consider calling the attorneys representing the plaintiff before you hire an attorney (but don't volunteer information). While it may seem daunting, there is no downside to asking the plaintiff's attorney to make a global settlement demand. An initial demand is a baseline to help you assess costs before you hire an attorney.

As part of a global settlement, the plaintiff's attorney will usually insist on having you bring your property into full compliance with the Americans with Disabilities Architectural Standards. Be careful, as you don't want to commit to making alterations that are not readily achievable. Not readily achievable means that the alterations could be costly to such an extent that it could put you out of business. You'll need a qualified attorney to help you make those arguments to a judge.

Can I handle the lawsuit by myself?

There are no laws that state that you cannot handle an ADA lawsuit by yourself, unless your business is a corporation (an officer of a corporation cannot represent the corporation itself). Bear in mind that few attorneys understand the intricacies of ADA law, as it is multi-layered and complex. You will want to hire an attorney to defend you who is just as knowledgeable, if not more, than the plaintiff's attorneys.

How do I go about hiring the right attorney?

Choosing a good attorney is like choosing a good doctor - not so easy. Before calling attorneys, it's important to understand the costs involved in defending an ADA lawsuit:

a. The statutory damages claimed by the plaintiff

c. The plaintiff's attorney’s fees, should an award be made

d. Your attorney's fees

e. Lastly, the cost of bringing your business into compliance with the Americans with Disabilities Act Accessibility Guidelines.

So, before you hire an attorney, ask the attorney for an estimate as to each category of expense. Having an attorney tell you, for instance, that a $2,000 retainer will suffice to settle a case is meaningless. What if the attorney settles your case for a unreasonable sum, and binds you to unnecessary alterations.

We can't find the plaintiff in our video archive system. Can he sue if he did not visit my business?

Deterrence, on its own, gives the ADA plaintiff standing to bring a lawsuit.

Isn't it illegal for an ADA plaintiff to file hundreds of lawsuits?

Brace yourself: not only is it legal, but some Ninth Circuit Court of Appeals judges have suggested that it may be beneficial to have serial filers fulfill the ADA’s mandate. Amendments made to the law by the State of California, to curb the number of lawsuits brought by serial filers, have been largely ineffective.

How do I know if my attorney is doing a good job?

No defense attorney should settle a meritless case brought by a serial ADA plaintiff, without doing basic discovery. When you read through the Serial Filers section of the socalada.com website, you will come to understand the usefulness of basic discovery.

How do I learn more about the American's with Disabilities Architectural Guidelines (ADAAG)?

If you're interested in learning more about the Standards, please visit https://www.ada.gov/2010ADAstandards_index.htm