All right. Thank you very much, and welcome, everyone, to the March ADA Audio Conference session. The ADA Audio Conference Series is a project of the ADA National Network. The national network is your leader in providing information on the Americans with Disabilities Act, the ADA National Network is funded by the U.S. Department of Health and Human Services, Administration on Community Living, National Institute on Disability, Independent Living and Rehabilitation Research. You can locate the regional ADA Center that covers your state by visiting ADATA.org. For those of you who are participating through the webinar platform today, you are encouraged to submit questions while Lainey is doing her presentation, and we have time set aside at the end of the session to take as many questions as possible. As Dilem had said, today's session, Structured Negotiation, a Tool for Disability Rights. Our speaker today is Lainey Feingold. You can find Lainey's -- information about Lainey on the -- by going to the speaker link on ADA-audio.org. That is where you will find the bio for the speakers that present in the Audio Conference Series. So at this time, I would like to welcome and turn it over to Lainey.
Thank you, Peter. Thank you to the participants, and thanks to the ADA National Network for having me. On my title slide, I have my website address, which is LFlegal.com, and I also have my Twitter account, which is @LFlegal. I am a big believer in Twitter as a tool for creating community, especially for disability rights. If you are on Twitter and we are not connected, I invite you to connect with Me.
My website is LFlegal.com, and I put up here a couple of things I try to keep current on my website about Structured Negotiation and digital accessibility.
My speciality is digital access. I have been working with the blind community since 1994 on accessibility issues around Web, mobile, ATMs. I do updates on my website, there is a high-level nav bar, and I include updates not just from my work, but from litigation,administrative complaints, and disability rights lawyers all over the country. So if you are interested in digital accessibility you can checkout the updates tab. I also have agreements that my colleagues and I have worked on under the Agreements tab as well as press releases. I do have an email list under contact, which you are welcome to sign up for. And I also have a book, and the book is called Structured Negotiation A Winning Alternative to Lawsuits. That's what we are going to be talking about today. The book is available through Amazon and the American Bar Association, who is the publisher. It's on bookshare for people who are part of the bookshare library who have print disabilities. Finally has a Kindle version up on Amazon.
That's a little bit about me, and you will learn more about me as we move forward.
I am going to advance the slides. Except here we go.
Okay. Here we go. So what is structured negotiation? I have this illustrated with a win-win handshake because Structured Negotiation is a win-win alternative to lawsuits. Like I said, I have been working in this way for 20-plus years, and Structured Negotiation has a 20-plus year track record of resolving complex disability rights cases without lawsuits. It's cost-effective, and it's relationship building, which is why I really like the handshake symbol.
I call Structured Negotiation a tool in the advocate's toolbox because it is just one of the ways that the law has been really effective in advancing disability rights in the United States. I have been successful not doing lawsuits, but I really like to say at the top of every presentation that lawsuits have really played a critical role in advancing disability rights. We are in a dangerous political time where there are threats to the right to file lawsuits. So I always like to start with the toolbox. It's a red toolbox. It's fool of tools like hammers and wrenches and screwdrivers to show that there's a lot of different ways to use the law in advancing disability rights. Structured Negotiation is one of those.
I like Structured Negotiation because of the next slide, which is a picture of this gigantic hammer, which is part of a hardware store in San Francisco because I like the saying "when all you have is a hammer, everything looks like a nail." When you think that an adversarial litigation process is the only way to enforce a claim, then you are going to look to a lawsuit.
So the point of this session is to explain to you how Structured Negotiation has been used in the past and how you can use it, whether you are a lawyer or an advocate or consultant -- I see many of my friends on this list, so I know you come from a variety of backgrounds. To give you the tools so you will be able to evaluate different claims and decide whether Structured Negotiation would be a good fit.
So we are going to start off by just a basic overview, why is this thing called Structured Negotiation? Why "structured"? So when you file a court case, as people know, there is a structure. There are court rules. You file a complaint, and within a certain amount of time, whoever you are suing has to answer that complaint, and there's rules about all these things, how to exchange information. In Structured Negotiation, we, too, have a structure, and the process begins with an opening letter. Again, we are going to talk about all these things throughout the next hour. But just as an overview, we start with an opening letter that's an invitation to participate in the process. We have ground rules. We share information in a collaborative way that's not governed by court rules and allows people to form relationships with each other. There's expertise. Just like in a lawsuit, people hire experts. In Structured Negotiation, we use experts, but in a collaborative way where expertise can really help all the parties reach a goal to resolve disability rights or, rather, claims, especially in disability rights, as we will talk about in a minute, client expertise, the expertise of disabled people, is so important. Often in a lawsuit that expertise can get lost, and in Structured Negotiation we use expertise in a different way. The goal of a Structured Negotiation is to have a written settlement agreement where the issue is resolved. We monitor that settlement agreement. We have a media strategy. And we have a mind set. Structured Negotiation depends on having a collaborative mind set. We are going to talk a little bit more later about what that means. But we called this process -- we named it back in the '90s after we had our early successes, and we called it Structured Negotiation because we wanted to make sure we were saying this is not some weak cousin of litigation, or we didn't want to call it pre-litigation negotiation as if litigation was the real thing and pre-litigation was some sort of not the real thing. But this is an alternative path. It's an alternative structure to resolving claims.
So what kind of cases has the process been successful with? We started with talking ATMs. Structured Negotiation began in the early to mid-90s, when the blind community, individuals came to us. Myself, as a lawyer, I was at the Disability Rights Education Defense Fund, my colleague who I have done most of my cases with, blind people started coming to us and saying the ADA has been around for four or five years, and there's still not a single ATM in the country that we can use.
So we started this whole process in response to that community need for ATMs that were accessible to blind people. So blind people would not have to share their PIN or talk to strangers about what was on an ATM screen.
We were in California. We were focused on three California banks, Bank of America, CitiBank, and Wells Fargo. We had a good lawsuit. We had a good lawsuit that could have been filed. There were no accessible ATMs. The Americans with Disabilities Act protected rights to effective communication and the use of this technology. But we were concerned about do we want to make bad law at the beginning of the ADA? What if we got a judge who didn't understand technology or didn't think blind people should use the technology? And all these things, as I describe in the book as how we came to the decision early on, let's try writing. Let's try writing a letter to these banks and see if they will talk to us. And much to our surprise, they did. All three banks talked to us, hired lawyers, we got into a process of negotiation. We didn't call it Structured Negotiation at the time because we didn't know we had a structure. We didn't know we had a thing. But what happened is those cases were successful, and by the late '90s, we had the first settlement agreements with Bank of America, Wells Fargo, and Citibank on talking ATMs. Towards the end of those negotiations, our clients started coming to us and saying well, it's really great you are doing talking ATMs, but there's this new thing called online banking, and if we don't have independent access to online banking, we are not going to have independent access to our finances. So because Structured Negotiation -- which, as I said, wasn't named at the time -- but because we were in relationship with these banks, we were able to say hey, you know, there's a new issue. And we didn't have to go to a judge, and we didn't have to go to a court filing, and we didn't have to go through procedures. But we were able to say, you know, we better figure out this Web accessibility issue. And Bank of America became the first bank, the first organization, actually, in the country to sign a Web accessibility agreement using the international standards, the Web Content Accessibility Guidelines. It was 1.0 at the time. And out of that, we got involved with doing Structured Negotiation around websites, mobile applications. We have done Structured Negotiations for talking prescription labels, accessible pedestrian signals, audio description in movies, hospitals. These are just some of the cases that this process has been successful for. And the book is full of stories of the cases, not just, you know, case is shorthand, really, for -- when I say cases, we are really talking about disable people's claims under federal civil rights laws for access. So the book is full of stories like that about the kinds of cases that Structured Negotiation has been successful with. The process has been used for injunctive relief, getting fixes. As I said, all the successful cases ended in settlement agreements. We are able to get money using this process, both for payment when it's allowed by state or federal law to the individuals, as well as for attorneys' fees.
So those are some of the kinds of cases that we've done with Structured Negotiation. What kinds of companies? Just really quick overview. Again, a lot of these stories are in the book, but I have a slide to show the companies that we've worked with just to emphasize that some of the biggest organizations in the U.S. have found this process to be effective.
We've done work with CVS Pharmacy, with Major League Baseball, Weight Watchers, as I said, Bank of America. We started, as I said, in 2000 with the first Web agreement. Most recently, we did an agreement with Bank of America on their mortgage information. The Bank has been a really great partner in Structured Negotiation, really a leader in digital access.
I have the logo on here. This slide has logos of the companies that I am mentioning. Anthem Blue Cross. We did a deal -- it was called WellPoint at the time -- with a company that owns Anthem BlueCross BlueShield in several states -- on accessible healthcare information. We started with accessible finance information because I think in large part accessibility when it deals with finance really has to do with privacy and the rights of disabled people to independently and privately, confidentially access information. Same is true in healthcare. So this -- and these companies I have up here are shorthand. We have done not just Anthem, but care Mark and Humana, other healthcare companies. Linda Dargarian did Structured Negotiations with Sutter and Kaiser. Those are some of the companies the process has worked with. Processes have also been successful with government agencies. We did an agreement with San Francisco about accessible pedestrian signals. Amy Robertson, King Fox did an agreement in Denver with Structured Negotiation on curb ramp accessibility. I have a picture of buses here because I worked with disability rights, Texas on the Structured Negotiation on the website for the Houston transit agency. So the process has proved effective for government agencies as well as private companies.
This slide basically talks about the number of agreements. I have done about 75 agreements, 20 on talking ATMs, 20 or more on Web and mobile, alternative formats, tactile point-of-sale devices so blind people can independently enter their PIN, Healthcare companies, we have done six talking prescription label cases so blind people know what's in their medication, and one audible prescription information.
Okay. I am going to skip a few of these just so we can stay on track time-wise.
The agreements have all included training of employees. When you have a structured negotiation agreement, we are in relationship with a company, so we are really able to see what do they need. And training, whether you do a lawsuit or a Structured Negotiation or you are an advocate working without lawyers, training a staff is so important in disability rights cases. And in our Structured Negotiation agreements, we have trained -- worked on training customer service people, Web and mobile developers, and Web and mobile designers.
And the last slide, question mark, what is Structured Negotiation going to bring in the future? I am hoping for my readers to let me know. I wrote the book. It's a roadmap through the process, step by step, so people can use it in different fields and in different types of disability rights cases. And it's full of stories, and I am hoping that people who listen to me talk and read the book will let me know how they are using it.
So how does the process start? Like I said, there's a structure. In the beginning of the structure is always about clients. In disability rights, it's always about disabled people. What are the claims? This is a process used to resolve legal claims. Several folks have told me there are certain tools we are using that are useful even without a legal claim. Like how to have a meeting.
We are going to talk about how to write a letter whether or not you have a lawyer. That's going to engage the person you are writing to to want to work with you instead of wanting to fight you.
So that's where it all starts, with disabled people and what their legal claims are and what they are hoping to get out of a legal process. And for those of you on this call not involved in disability rights, same holds true no matter what field of law you are in.
So the first thing is the opening letter. This might be -- I don't want to say it's the hardest part, but it might be one of the hardest parts. I got a call from a friend about a month ago. He is like I really want to do Structured Negotiation. I can't be nice in the opening letter. I said you can. You can do it. The opening letter needs to strike the balance between seriousness. In the work I do, we are talking about federal south-westerly rights laws. And I don't want to say kindness. That's going a little too far. But reasonableness. And yes, this is a serious matter. But we want to work on it with you in a collaborative way, and that depends on having language and tone that's invitational and not aggressive. It has to do with describing the legal claim calmly. I write in the book about how I don't -- you know, often times in a traditional demand letter, you might say you have discriminated against my client. While that's true, it may not be the best lang to engage someone to want to work with you. Yes, we talk about discrimination when we talk about the claims, but we try to present everything in a very straightforward manner. And perhaps the hardest part of this for traditional lawyers is we always try to say something positive about the company in the opening letter or the government agency. And I will give you a couple of examples.
I did a Structured Negotiation with Charles Schwab about their website on behalf of a blind woman here in the Bay Area of San Francisco. And she was an options trader and a devotee of this website. As happens all too often, the company made a change in the website, and she was no longer able to use it. Charles Schwab went on being a great negotiation partner completely committed to accessibility long after the agreement expired. But when we first wrote to them, we did know. We knew there was a violation. But I spent time on their website, which I really advise doing before a letter is written, and I found that they had actually been very generous financially to disability groups. They have a social -- not social justice -- what do they call that? Social -- you know that term where corporations try to do good in the community. And They were bragging about their donations to the disability community. And I put that in the letter, and I thanked them for it. I said you know, it's really great that you have done this and it's been important. And to be consistent with that philosophy of your company, you really need to work with us to resolve this legal claim. So that's just one example. Many of the organizations we've had to write Structured Negotiation letter to are good on customer service. I do a lot of work on technology and Web accessibility and say the point-of-sale devices, we did cases with Target and with CVS. These are -- Safeway. These are companies -- Wal-Mart. Wal-Mart's participated in two Structured Negotiations. And many of these companies have good customer service even though our clients weren't able to get high enough up to get the technology changed without getting a lawyer involved.
So these are the kinds of things that we try to put in the opening letter. And lastly, most importantly, is building trust. Trust -- like I write in the book, trust is a currency of Structured Negotiation, and it starts from the beginning. How do you establish trust on a piece of paper when you are writing to people you don't know? One of the things we do is we always put in names of other lawyers, other companies who know us, who have worked with us, who know our clients, to say call them if you want to know if we are trustworthy. I am hoping this book will help establish trust for the process, and people will say look, here's a book. You can read about other companies and other settlement agencies that have been in this process and have resolved claims.
We also try to share information that, you know, in a litigated case, you kind of have to save your best facts for later because, you know, smoking gun or gotcha. But we did a deal with American Express about their Braille statements, and our blind client had discovered that even though American Express wasn't doing braille statements in the United States, they were doing them in Canada. In a lawsuit, that would have been a really good fact to hold on to and tell a judge later, but we don't have a judge. So therefore, we didn't have a judge, and we wanted to establish trust, so we put right in the letter, you know, you are doing braille statements in Canada. You should be able to do them here in the United States. And we also gave the name of the vendor, the Canadian vendor, because you know what? American Express is a big company, and the people we are writing to may not have known. So that's just one example of how we try to establish trust. American Express went on, we ended up with a great settlement agreement with them, and we got the braille statements, and they became great negotiation partners.
I see a note here that says are you on wireless Internet? I am not sure that's for me, but if it is, I am not on wireless Internet, so let me know if there's any problem with the audio.
No, audio is fine, Lainey.
Okay. Thank you.
The basic thing we call about the opening letter -- which we call the opening letter -- is don't demand. We have an angry-looking white man with a hat banging his fist on the table. Instead of demand, invite. The idea of the opening letter is to invite participation in a process, not to insist on a solution within a specific amount of time. The reason for that, in the cases I work on, there's often complexities, and solutions can't be found, especially with big organizations -- but even small organizations -- very hard to get anything done in 30 days. But lawyers tend to say, you know, fix this within 30 days or else we are going to have to sue you.
So the idea of the opening letter is different, and we call it the opening letter even if the person you are writing to doesn't know that you are calling it an opening letter as compared to a demand letter; you know, and your clients know. And for the people with disabilities listening on this call, you know that this is something different than an insistence, and that helps the participants understand what we are going for in collaboration. You know, whether or not the company knows, Wal-Mart, do they care whether I call it a demand letter or opening letter? I am not really sure, and I write about it in this book, but it matters to me as I write the letter, as I communicate with the person I am hoping to negotiate with, that I am thinking of it as an invitation and not as a demand.
So you send the letter, and what happens next? You have to be patient and proactive. I have a very cute picture of a cute girl looking out a window waiting because waiting is not something lawyers are typically good at. Lawyers being patient -- I actually have a whole section of the book on patience. We are going to talk about that in a couple minutes. But it's the last chapter because the editors and I were afraid if we put patience at the beginning of this book, lawyers are not going to get past page 1. But in many ways, patience is page 1 when it comes to Structured Negotiation. Because when you file a complaint, you know that the company or whoever you sued has to respond within a certain amount of time or else they are going to be in violation of some court rule, and you are going to be able to go to some magistrate or some judge and get that person in trouble. Not so here. Here we send the letter, and oftentimes in an audience I get questions. Well, why do they respond? How do you make them respond? But the truth, you know, the truth is it happens. People, you write a certain kind of letter, and you get a certain kind of response.
However, it doesn't mean you sit around until you get the response. You have to make sure the letter gets into the right hands. And one good thing about writing a book is that it allowed me to kind of look at 20 years, and I think I have done 60, 75 cases in this process, and I was able to see what sort of patterns emerged. And I realized that this period of waiting for the response requires, like I said, patience and also trust and confidence that this process is going to work. We put a date to respond in the letter. About a week before that date, I call up, try to find the person I sent the letter to. Did it get in the right hands? Sometimes no. For all the best-laid reasons. In the book I kind of spell out what some of those stories have been. But we get the letter in the right hands, and we are patient. And then what happens? Then we get some sort of response. Oh, yeah, in addition to being patient, we have to be persistent. I was speaking about the book in Structured Negotiation and digital accessibility law up in Toronto during the hearing where Elizabeth Warren was shut down, and I changed my persistence slide with a picture of her and the Hashtag, she persisted. I explained to the Canadians, who were so supportive of our situation here in the United States, if Elizabeth Warren can be persistent and we have to be persistent in our resistance here in the United States, certainly we can be persistent while we are waiting for response to an opening letter and not just throw in the towel because it doesn't come on the date we expected it. Eventually we get a response.
And another thing I realized writing the book that I hadn't really known is that evaluating response is also a tricky time. And I have these two pictures on this slide. One is a woman with her arms wide open to the ocean, she is a wheelchair rider, and it says don't expect this. Don't expect that your letter, no matter how nice you were, no matter how many positives you found to say, don't expect you are going to be greeted with open arms because it's still a legal complaint, and it's still -- it's not a demand, but it explains that the legal right is to get the problem fixed, is to get paid in certain circumstances for the lawyers, is to get paid in certain circumstances for the client. So no one is going to rush and say oh, gee whiz, we are so glad you sent us a Structured Negotiation opening letter. But you don't need open arms. What you need is the next picture with a little bit of a crack in the door, a little bit of opening. Look for this.
For example, when we wrote to Major League Baseball, who make league baseball has been a great Structured Negotiation partner. I tell the whole story in the book. It might not have ever happened. When we first wrote the letter, the lawyer called and said we need a week delay. I mean, we need an extra week to respond. Of course we said yes. The week came, the week went, and we didn't get a response from the guy. And we are thinking, like, really? But we didn't throw in the towel. We had patience. We had persistence. We called the lawyer. And he was like I wrote to you. I don't know what happened. I sent it FedEx. Sure enough, the letter got lost. Eventually we got the letter, and the first three paragraphs, like most of the letters we got, were we didn't do anything wrong. You know, our websites are fine. Or our websites aren't required to be accessible. Or this or that or the other thing. But buried in that letter was ... still, we'd like the opportunity to meet with -- you know, like, welcome, I have the exact language in the book, but we were willing to sit down with you and your clients to discuss the issues. That is all you need. And I went over all the letters we had gotten in response to all our letters, and so many times that was what we got in response, a whole bunch of nos and one little yes. So you look for that yes, you evaluate the response, and you call back, take a deep breath. You don't pay attention to all the nos, and you pay attention to the desire of the other side to sit down and talk with you.
So you get the response. What comes next? I have a slide in here with yes/no, like a road sign with yes off to the left and no off to the right, because there's many junctures in Structured Negotiation where it would be very easy to say no, this is not going to work. No, we better have a judge. And you know, sometimes you may decide -- clients and lawyers may decide together, you know, this isn't going to work. And we have had situations, and I write about that in the book. But mostly, the vast, vast majority of times in the stories that I share in the book were when you get the evaluation, you stick with it further, and you take it to the next stage, which is figuring out the ground rules.
So in Structured Negotiation, we don't have court rules, and we don't have civil procedure. So we have to establish ground rules.
In the book I have a sample ground rules document. Sometimes the beginning of the case is a month, two months, more than two months working out the ground rules. And this is a place where relationships start to form. The ground rules have to protect the clients' rights, disabled people's rights while they are in the process. Because if anybody's going to lose anything by being in this process, we shouldn't be in it. We should be in court. So the ground rules identify who is part of the negotiation. They list the topics for negotiation. But they say in the book it's the topics, not the -- necessarily the details of the end result.
So for example, on talking prescription labels where we have done agreements with CVS and Walgreens and Rite-Aid and other pharmacy chains and healthcare providers, the topic is improving accessibility of prescription label information. So we know who the vendors are and what timeframe we want the talking labels to be provided. We have ideas of all of those things, but they don't have to be decided right at the outset. We just have to have clarity that everyone is on the same page about what we are going to be talking about.
We told the statute of limitations. Those of you who are not lawyers on the call, nobody is penalized when not going to court. When you have a legal claim, you have to go to court by a certain time. If we are in negotiation, we don't want that time to click by and then our clients to be out of luck if the negotiations don't work out. So there is a Tolling agreement. There is confidentiality of the negotiation but not the process. Oftentimes agencies will come to us and say we want the whole thing to be confidential. We don't want anyone to know we are talking to you. We really try to discourage that because when people know, then it helps the companies or organizations avoid lawsuits, for one thing, but two, it tells the community, hey, you know, there's a Structured Negotiation on this issue. I know that the National Federation of the Blind did a Structured Negotiation with Lyft, the ridesharing service, and they put out a statement together with the clients and the lawyers saying we are in Structured Negotiation on this topic because they wanted the community to know if you have a problem, tell the people who are working on the Structured Negotiation.
We have to protect attorneys' fees in the ground rules document because there's certain case law out there that says you can't get attorneys' fees in an ADA case if you don't have a court order. But of course, we are not getting a court order, so we have to make sure that the ground rules are very clear, that the attorneys' fees will work just as if a lawsuit had been filed, although of course, the attorneys' fees in a Structured Negotiation are far less because, as we will see, there's far less of the procedural. There's no real procedural wrangling, and all the parts of it are much more cost-effective. The whole process is much more cost-effective.
And then an end date in the ground rules. There's different ways to do it, and I lay it out in the book. You can say, okay, we are going to negotiate for one year, and then the Structured Negotiation is called off. I personally don't like putting an end date in because you never know what's going to happen. You need to stay persistent. You need to stay on top of it. But you don't necessarily need to say a year ahead of time when the notion will be over.
So when you get the ground rules, you give them to the other -- you know, you write the ground rules. Everybody discusses the ground rules. And then, of course, there are objections to the ground rules. And I like this picture of this little girl looking at her broccoli, like she doesn't want to eat the broccoli, even though the broccoli is good for her. And Structured Negotiation is a good way to resolve claims, and there really should be no objections to a government agency or company when they are approached in this process because it's cost-effective, it's efficient, it allows people to maintain control whereas in a lawsuit you give it over and a judge could do something that neither side likes. So there's a many, many good reasons, but there's often objections.
So this is another juncture where I might have a slide next that says yes or no -- another juncture where it might be easy to throw in the towel, might take a long time to get the ground rules, but it's about trust. It's about sharing successes of the process. Again, I hope the book will be useful in that way. There's often concern at the early stage about money, how much is this going to cost. So there's a lot of conversation that has to occur that's not really about the issue that your claim is. It's not about the curb ramp that's not there or the website that's not accessible. But it's really important to keep and form a good relationship while working on the ground rules because that really is the foundation for moving forward.
So eventually in the process, you get the ground rules signed. You either do or you don't. In almost every case I have done, we've had the ground rules signed. If the ground rules aren't signed, then you are faced with the question do I proceed with Structured Negotiation or do I go to court for protection. I would say in most cases you want to go the court route. If someone won't sign ground rules, it seems unlikely they would end up working in good faith and collaboration on the actual issue at hand.
Assuming you get the ground rules signed, the next thing that you are going to work on, just like you would in a court case, is you have to build a shared understanding. The way that works in a lawsuit is you have to take depositions and write questions or have site visits, all of which are tightly regulated by court rules and civil procedure and other things that take a lot of time, cost a lot of money, and don't necessarily build shared understanding that really helps solve a problem.
So in structured negotiation, we build shared understanding in three different ways. One is we exchange written information. And again, this is informal. Often-times we could even do it by an email or send a list of questions, and people often, in the live audience, ask me but why do they answer? Why do you get any information? And the truth is I know this sounds kind of polyanish, but when you are in this process and by the time you exchange information, you sign ground rules. You are on the same page that there is a legal claim that needs to be resolved. And we rarely have push-back because we are asking for information that we need, and we are willing to be patient in terms of potential responses.
So for example, say we ask, like we did a case with weight watchers on their accessible Web and mobile. We needed to know what kind of information do you give members? What's on the website? What's -- you know, in Web cases, in mobile app cases, you want to know do you use a vendor and who the vendor is, and there's lots of questions that you need information for, and maybe the company wants to give you 75% of what you want but not 100%. We are able to say in the process, okay, give us the 75, and let's see if we need any more. And if we need more, we are usually able to explain why, and we have built the trust all along, and we find that the information is shared. So we do that by exchanging written information and then probably the best part are the Structured Negotiation meetings. I tell a lot of stories in the book about the meetings because they are really the highlight. I think in disability rights in specific, they are the highlight because the companies or government agencies or decision-makers are getting to meet disabled people and form relationships with them.
So for example, I mentioned Charles Schwab and the blind investor. Instead of them having to take a deposition of the client and, you know, try to trick her or even not try to trick her, just try to get information in the stupid way of a deposition, we had a meeting at Charles Schwab with their lawyers who were great and committed to the issue throughout. They brought their Web people, their training people. We set up a screen. The blind woman, she used a computer that had software installed to speak the screen out loud, as well as a braille display, which I have a picture of here on the slide, which is a mechanical device that will read content, refreshable braille display constantly changing. And that meeting was really all it took because people could build the shared understanding, oh, yeah, they could see this, like, power user was not able to use the site because of certain problems. And I interviewed for other -- as I wrote the book, I interviewed as many lawyers and companies that would talk to me as well as most, if not all, of the clients and organizational reps that had participated in Structured Negotiation. And so many of the company people said, you know, show, not tell. And by meeting the clients early on with the talking ATMs, you know, banks thought braille on ATMs were going to do the trick for ADA compliance. But blind people knew that braille couldn't help an interactive machine be accessible. The only way to make an ATM accessible is by making it talk. So we could have written a hundred-page brief or hired experts. Instead, we had meetings that bankers could see blind people using ATMs without talking, and literally, you could see the light bulbs go off.
So the Structured Negotiation meetings are really the highlight. Now honestly, and as I say in the book, there have been some cases that have been very lawyer driven and we don't have these meetings for some reason, but the best cases -- Major League Baseball for example -- that Structured Negotiation was so successful because Major League Baseball got to know our clients as blind baseball fans. And too often when you go into an adversarial system, people have to take on the roles that the system gives them -- plaintiff, defendant, experts. There's a lot of baggage with all those rules. Structured Negotiation, I am sure the companies and the organizations never lose sight of the fact that people have legal claims, but still, they are getting to form a relationship with the person instead of plaintiff, which is a term we don't even use because it's so loaded. Blind baseball fan. You know? Blind investor. Wheelchair rider who needs access to a hospital. Things that break through the roles and allow relationships to be established. And allow empathy to be created on both sides. Where we are dealing with finance, there is legitimate concern on the finance side about security issues and breaches and all sorts of corporate things that are able to be explained when, you know, we might want something done by this date, and it really can't be done by that date. It has to be done by a different date. And the meetings allow the kind of conversation where people can really build shared understanding.
So like I say, I talk a lot about those meetings in the book, mostly because they were the most fun thing to write about.
And the meetings, like I say, some have been very lawyer driven, but in many the lawyers can stay in the backseat, have the backseat of the car as the image, and relationships are possible, again, the handshake.
So that's how we build shared understanding. It basically works because people aren't trying to hide the ball. I have a picture of a guy hiding a ball playing that game where you hide the ball under three cups. And instead, there's sharing. Maybe this is a cheap, cute picture, little boy sharing the ice cream cone with the little girl. White boy, African American girl, sharing the ice cream cone, but sharing actually works, and that's what happens in the best of cases in this process, and that's why it works.
So let's see. Okay. Another piece of information sharing, experts. Expertise is very expensive in traditional litigation. And I quote a young lawyer in my book who said it's so frustrating because I have great experts, but the other side doesn't listen to them because they are my experts. And expertise gets very polarized, and in Structured Negotiation, we try to have joint experts whenever possible. In the digital accessibility space, a lot of times expertise is needed, and we want the institutions we work with to have the best experts. We don't want to have to hold them for ourselves. We want the companies to be able to use them. So we often recommend two or three experts for the companies to use. Nobody lights to have expertise shoved down their throat -- as one of my experts quoted in the book. So we always give a couple names so organizations can feel they have someone that fits with their corporate culture because digital accessibility, for it to be effective and to stick, it's really a whole -- kind of whole-body experience. The whole organization from top to bottom has to understand accessibility, and training and customer service and design, quality assurance, everything has to be touched. You need the experts to fit in with the corporate culture. So that's one good thing about Structured Negotiation expertise and one that saves a lot of money.
Another is that the clients can be experts. I think I mentioned this earlier, that especially in disability rights, the expertise of disabled people is so important and is often lost. Not always, but often lost in litigation. And one of the best examples I have of that is our accessible pedestrian signal case with the City of San Francisco, and one of our clients, a representative of the California Council of the Blind was like a national expert on accessible pedestrian signals, and he was also blind, and he was also someone who was serving as a claimant, but because the roles are softened in Structured Negotiation, he was able to share his expertise, and everyone was able to benefit from it. Whereas, in a litigation, it would be more like, oh, he is a client. We can't really trust him because, you know, he is in it for whatever reason.
So the expertise, I have a whole chapter in the book on working with experts and how we've done it, and it's probably one of the biggest selling points of the process when, you know, early on trying to convince whoever you have a claim against, hey, this is a good process. It's going to save you a lot of money with how we deal with expertise.
So once you have the shared information, then the next step is drafting the agreement. Of course, every case is going to be different. It's going to depend on what the issues are. But there's a couple of strategies that apply throughout. One is timing. When is it? When is it that you send a settlement agreement? Is if you are too early, people can get freaked out and you set yourself back. Or if you are too late, then people say oh, we might not need this settlement agreement. So the whole timing thing is very both tricky and a chance to be creative. Again, Structured Negotiation without specific time requirements. And this is also true in litigation at some point, most all cases settle, you have to decide when you are going to write an agreement. But every step of this process has to be infused with the idea of cooperation and collaboration so when we are deciding when to send an agreement, usually I call the other side and say, you know what? Do you think this is a good time to start writing things down? And that way people aren't surprised, they aren't taken aback, the lawyers don't have to explain to their clients why they got this document, but everyone is in agreement on yeah, it makes sense to start writing things down. Or maybe you are just going to do a list of issues rather than specific language. So I talk a lot about that in the book, about how to get started on the actual written settlement agreement, which is very important. This is a structured process with a goal of a written, binding agreement. Baby steps. Very important in Structured Negotiation, baby steps. Again, when you write a book, you get to look at the whole landscape, and so many of the cases that I have worked on would not have been successful had we been unwilling to take small steps on the path.
So for example, talking ATMs. We wanted thousands. We eventually got thousands. We were thrilled when we got the first ten.
Websites, mobile. When we worked with Major League Baseball, we had a two-year process. One year we did the audio -- one of the big issues in that case was blind people wanting to listen to baseball online. We got that one year. We got other things the next year.
Audio description. We got one movie theatre in one location before we got the whole country. So that idea of taking small steps, never losing sight, eye on the prize, never losing sight of the big goal, but recognizing and appreciating small steps and working around fear. I had to make a whole slide just for fear with a picture of this, like, white guy with his hands up. Ahhh, he is afraid. When I do these talks in person, I carry around my fear monster, which is this plastic toy I got, because fear is such a big obstacle to get around in settling cases, where you don't have a judge to fall back on and say oh, you are wrong, you are right, do this.
So for example, especially in disability rights, I don't know, I am going to be curious to see what kind of feedback I get about Structured Negotiation from lawyers in other fields and whether fear plays as big a role. But in disability rights, around blindness in particular, there is so much fear that Structured Negotiation has really helped break down. So for example, in the accessible pedestrian signal cases, the City of San Francisco was truly afraid that if they had audible signals, blind people would accidentally go into the street at the wrong time. Now, we, of course, thought that was ridiculous because with the pure visual signal, blind people get no information. But nonetheless, there was an actual fear. Same with the prescription labels. There was a fear that the talking information would be misunderstood. And one of the things about Structured Negotiation, in patience, in forming relationships, in not assuming people are trying to screw you over. That's like -- or not assuming people are just saying something to delay, but that their experiences are real to them, no matter what we think of them. So in all these cases, we had to work with these companies, either through small steps or through actually meeting people, to help them understand, like, okay, they might be afraid that blind people will be hit by a car, but that fear is not rational. That fear is not based in reality.
We did the ATM cases. We had one of the banks say to us blind people will get mugged at an ATM. They shouldn't use an ATM. That was a fear that was not only not grounded in reality, but it was very ableist for the sighted bankers to decide what was best and safe for the blind customer.
But all these fears we were able to work out because we recognize them. We understood them as true for the person holding it, even though we didn't hold it. We were able to dismantle it, and we were able to draft around fears in certain circumstances.
So for example, we did a deal with the credit reporting agencies for free credit reports for blind people in accessible formats as well as online, and the credit reporting companies were very afraid that too many people would ask for it. And it would, like, break their whole system. So we had very detailed language. If a certain number of people asked, then this would happen, that would happen, none of which came to fruition, but we were able to write language to give a comfort level of going forward without detracting in any way from what disabled people needed in the agreement.
The same with the ATMs. We had so much language if, if, if. You know, lawyers are masters of the what-if. What-if having a talking ATM breaks the whole system? You know, what if this wrecks the security? What if this happens? What if that happens? What if the law changes? What if the law doesn't change? So these are the kinds of factors that come in to drafting and recognizing that other people may be afraid, but we have to work with them if we want to get what we need from the Structured Negotiations.
So money. structured negotiations has been effective for money, and we have been able to get client damages. Many disability rights laws allow for disabled people to be paid for civil rights violations. As well as fee shifting, which means in most cases people have to pay their own lawyers, but Congress has decided in civil rights cases, when disabled people, black people, or women are successful, then the other side pays their fees. We protect that in Structured Negotiations. I have a whole chapter in the book about negotiating with money because it's very easy to fall back into an adversarial mode once money comes up. We typically talk about money at the end after the solution to the problem has been resolved, and I think one of the -- I think it was a Citibank lawyer I quote in the book. He said if people are going to get adversarial, just talk about attorneys' fees, and sure enough people are going to get adversarial. I have some strategies on how to avoid that, mostly by staying calm. But it has been a successful process. It has been a successful process for that.
Media and monitoring. Another part of the structure. What I want it say about media, which I think is first -- let's see. Yes, media strategies first. We don't do negative press releases in Structured Negotiation. That's why the picture is of a newspaper that says Good News!! And this, I think, was very interesting. When I was interviewing the company lawyers, many of them said getting a negative press release is worse than getting a lawsuit. And in Structured Negotiation, because we are trying to form relationship, we don't put out a press release at the beginning, which may be good strategy in a lawsuit because it will get witnesses or class members, but in Structured Negotiation, we wait until we have something positive to report, and the press releases all -- the timing, wait until the end. The appreciation piece is make sure the press releases are mostly announcing a new initiative. They are all in one place on my website. You can go under the topics -- under the topics tab, and you can look up press releases, Structured Negotiations, and you can just read a paragraph about every single one with a link to the full release. You will definitely see a pattern of appreciation, clients saying good things about the company. As time went on, the lawyers took a back seat. I think if you are a lawyer for nonprofit, I think it's important to get the lawyer of the nonprofit's name out. As a private lawyer, we found that if we put our names in or we have a quote from us, it looks like it was an adversarial situation, and we don't need that. So we tend not to.
Most of our settlement agreements include press releases even though it's not required, but the people we have negotiated with see it as an advantage, so that's part of the Structured Negotiation strategy.
In terms of monitoring, the monitoring strategies are, you know, as they would be in the settled case after a lawsuit was filed, but we don't have a judge to fall back on if something goes wrong. But after 20 years and all these agreements, I can honestly say that we haven't needed a judge to fall back on because the same flexibility in relationship that has infused the whole Structured Negotiation infuses the monetary -- the monitoring period. So monitoring happens after a settlement. And you know, in most of the cases that I have been involved with, the companies or government agencies do what they are supposed to do. But sometimes, especially when you have a big situation like, you know, talking prescription labels in 7,000 stores or a website with thousands of pages, things can go wrong. And we have gone to dispute resolution or we have chosen not to go to dispute resolution. Again, I talk about this in the book. If we see that a company is in violation of the agreement, I will say in almost every single case that I think think of right now, every one, the company lawyers have agreed that there's a violation. It's not that there's an intentional violation. It's just that when you have a lot of people, a lot of customer service, or whatever, things can go wrong. So we will say often to a company, hey, we have a problem. Do you think we should go to dispute resolution, which is always built into our agreements, sometimes the company says yeah, we need to elevate this, and sometimes the company says, you know what? If we put this in dispute resolution, we may have a harder time solving the problem. So again, it's flexibility, cooperation. We've had situations where we've had to extend agreements because the time we thought it was going to take to fix something was not enough time. Sometimes we have had to do a new case. Sometimes we've had to do individual cases when it's one of those, you know, affecting 7,000 store things. And throughout, we try to practice trust and collaboration and patience, and all the elements that make Structured Negotiation effective.
So that brings us to language and mind set, which, as I said, is the last chapter of the book but something that is throughout, throughout Structured Negotiation. The first one is active patience. To illustrate this, I have a picture of a surfer. His name is Derrick Rubello, a big international surfer from Brazil, and he is blind. And I heard about him because I always talk about patience. For years. Even before I wrote the book, about the importance of patience in Structured Negotiations, and I use the adjective active patience because it's not just sitting around twiddling your thumbs. It's recognizing that giving someone time to understand the needed changes or get with whoever in the company is going to write the check, that that takes patience. But you need to be active. The active part is follow-up emails and weekly phone calls and status reports. And while you are waiting, making sure things are actually happening. And this is a tool that is not -- it's critical for Structured Negotiation, but I have had people tell me that the -- first of all, the part I wrote about patience in the book is really useful for many things. You know, I work a lot with accessibility people who are on teams who, you know, I met a guy at CSUN last week, he is in a big company with 37,000 employees. He is the only accessibility person and is holding down the entire fort of accessibility. And he really needs to be patient. It had nothing to do with Structured Negotiation.
So when I do my slides, I like to have illustrations, and I try to have good slides, so I put the word out once, what would be a good image for patience, and someone wrote what about a surfer because they have to wait for a wave? And I always try to, if I can, have a disability angle to my slide, so I just randomly looked up blind surfer and discovered Derrick Rubello. There is actually a movie about him. And I like this because he can be patient out there out in the middle of nowhere waiting for a wave, and we can be patient, practising patience waiting for the other side to come on board. So that's one of the mind-set factors.
Another one is trust. We've talked a lot about trust at every stage it's important to be trustworthy. Give people the benefit of the doubt. Not forever. Not be taken advantage of. You know, there can be times where you say okay, enough already, I've been too patient. Certainly I have fallen into that. But it's pretty rare to be too trustworthy. And it can break so easily.
So at every stage, it's important. I think Structured Negotiation, it's not just the structure of it, knowing how to write the letter, but having this attitude, having this mind-set, not assuming people are, you know, lying to you or trying to screw you out of something. It matters to make the process work. Grounded optimism. The glass half full. Optimism -- I read about grounded optimism. I said that is a Structured Negotiation thing because if you don't believe in this process, then it's too easy to throw in the towel and say we need a judge or we need a court or we need a magistrate.
Let me just say quickly about mediation, we have used mediators in Structured Negotiation, and the process can dovetail very nicely with mediation. Mediation is a great process and a great dispute resolution tool. Too often now, it's used after people have already spent a lot of money and formed bad relationships with each other. And the beginning of the mediation has to be kind of undoing that. We have brought in mediators mostly when we've gotten stuck around money. But there's also situations where mediators have been brought in on the substance. And again, the process can be creative and flexible. If you get stuck, you don't have to think that the only solution is a court case. It might be. It might be. But other processes as well. And that's why I say grounded optimism. The grounded part is knowing you are not just optimistic and just hold your breath it's going to turn out right, but you are grounded in following the steps of Structured Negotiation, practising the mind-set that when you do those things, it is, by and large, in most cases, in almost all the cases I have gotten the ground rules document signed, been successful. So optimism is another part of the mind-set.
So again on language, this comes up in the opening letter as well as throughout. The word "defendants," try not to use it because defendants defend. In this process, because we are not having to prove things to a judge or have motions or briefing, we don't have to cost as much about past conduct. We are focused on future conduct. We don't want whoever we are writing to to defend their inaccessible website or their lack of prescription labels or their mobile app that doesn't work for blind people or their videos that don't have captioning. We don't want defendants to defend. We don't use the word. We don't want opposing counsel to oppose.
I want to be careful about the word discrimination. This was a hard part of the book to write because of course disability discrimination is a real thing and a critical thing and something that disabled people have fought against for generations. And whose activism has gotten us the laws we have today.
Still, given all that, I am not sure how useful it is as a motivator to get people to do things. So when you are in a collaborative process, you have to think carefully about the words you use.
So that is the overview I wanted to give you all. Just really quick -- I want to leave time for questions -- a few other points about why the process has worked. Dismantle assumptions. Show don't tell. We talked about that. Create the shared understanding. And I have a picture of a rubber stamp that says "don't believe the braille." This was a stamp that my friend, Josh Meally, had made up in the 90s before I knew them, and he stamped it on ATMs because he was so frustrated as a grad student at Cal, UC Berkeley, that ATMs didn't talk and instead had braille. And he gave me this stamp when I finished the book as a present. And I like it because the bankers believed the braille. They thought that was enough, like we said, and it wasn't. We were able to show and not tell them. In many, many cases, the process has allowed us to dismantle the assumptions that people have about disabled people and about the issues that we worked on.
So dismantling assumption is sincerely a key part.
Respecting small steps. We talked a little bit about this before. Interim measures. Pilot programs. Have this illustrated with a Harry Potter picture, and in my live talks, I have a Harry Potter magic wand because we got Cinemark to install audio description equipment for one of our clients, a blind girl who was ten, who wanted to see the opening of Harry Potter. And the company wasn't ready to do audio description nationally, but because we had the relationship with them, they were able to install it in the one theatre for the Harry Potter opening. And we respected that. The girl wrote an email, and we sent it to the Cinemark, and the Cinemark president eventually became a champion for audio description, and they have been a great company to work with. And it all worked because we respected small steps. It's just one of many, many small step examples.
Flexibility. I like this picture of a woman doing a yoga handstand, forearm stand on a computer. I tell a lot of stories in the book about how Structured Negotiation allows -- you have to be flexible, but it allows for change circumstances. We get a new client or somebody has a new issue. Because we are not in a strict process with court rules and judges, we have been able to add new disability issues. When we worked with Major League Baseball on their website, the app store wasn't even open. While we were in negotiation with them, the app store became open, mobile apps became a thing, accessibility of mobile apps became another thing. We were able to fold that into our negotiations with Major League Baseball and the blind baseball fans.
So I think we should open up for questions as I show my bottom line. The bottom line of Structured Negotiation is more this, which is three girls talking to each other -- and less of this, which is a picture of conversation bubbles that say "no thanks" "no" no, no, no. And too often the litigation system gives people the opportunity to say no in a million different ways, to file a motion to throw a case out or argue that the plaintiff is the wrong person or didn't do the right thing. In Structured Negotiation, there's less opportunity to say no, so more people say yes.
So I don't know if the questions -- do we have any questions?
I am going to ask Dilem to come back and give instructions for participants on telephone at this time, please.
Thank you, sir.
Ladies and gentlemen on the phone, if you have a question at this time, please press * and 1. If your question has been answered or you wish to remove yourself from the queue, please press the # key.
All right. We will wait to see if we have any questions there. I have some that have come in submitted beforehand. But I have this one myself, which as the moderator gives me the flexibility to ask this question.
So Lainey, if you could speak to big picture. You have been doing this for 20 years. What has been your experience with regards to the companies when you contact them and raise the -- you know, the issue of their non-compliance? I imagine at the beginning, you know, it was we didn't know. You know, first about ATMs. But if you could talk about that experience as to why a business has been noncompliant, you know, ignorance of the law, didn't care, or no one with a disability had ever contacted them about that particular issue.
I think I have experienced all those different things. One of the ways as I practice law is I really think it's important for disabled people or any plaintiff to see if they can solve the problem themselves. Like I always say, nobody wants to be in a lawsuit. Either the person sued or the person bringing the suit. Disabled people have lives to live and would rather not have to be doing lawsuits whenever there is inaccessibility.
So we do often hear, oh, we didn't know about this. Why didn't you tell us? And it's always important for me to be able to say, well, you know what? You weren't listening because you got this complaint or so-and-so talked to a store manager, and a lot of the cases -- almost all the cases start with poor customer service, honestly, in these kinds of circumstances. And there have been complaints. And disabled people have talked to store managers or filled out a Web form and the complaint hasn't gone anywhere.
So like I said, we hear all sorts of reasons not to do it at the beginning, and that's the picture where we are not looking for open arms, we are looking for a slim opening to have a conversation. The more you can talk directly with people, the more you can help them understand, yeah, you have a real problem here. And it's a legal issue.
In disability rights, you often have heard oh, we'll fix it. But once you get to this stage, you are talking about civil rights claims. That's something we often have to impress upon people in the early part of the relationships.
Very good. We had a question from someone in the webinar room. Any suggestions in working with entities that insist on putting attorneys in the driver's seat versus the backseat?
Yeah, that's a good question. Like I say, sometimes we have done cases. Web somewhat lends itself to this because now there's a lot more awareness of Web accessibility, and if we contact a company, they may not feel that they want to meet the clients.
I mean, one of the things that I've learned, we had a case set up, and we are going to have a meeting. The clients and the lawyers. And the lawyer for the company called us at the last minute -- I think I tell this story in the book -- and said we don't want to meet. I am like why? What happened? Like the clients were afraid to meet the plaintiff. We don't call them plaintiffs. The claimants. Because they had had a bad experience. A lot of times at the beginning, I have to say, you know, this isn't going to be an adversarial meeting where people are yelling at each other because when we have the Structured Negotiation meetings, there's two goals to every meeting. One is the particular goal like we might be talking about a particular webpage or documents or what the customer service experience was. But in every single meeting there's also the goal of establishing relationship. And so I think some of these companies, and especially ones that have outside lawyers -- not just -- not even just outside lawyers. But you know, some lawyers are like afraid to get to know the clients. And I think that's another example of a fear. Actually, I hadn't really thought about that. But I think that is a fear, and I am often saying you know what? When you are ready, I think it would be really useful if, you know, your people could talk to my people. If your clients could talk to our clients. And when it's successful, it's really good because even inside the biggest corporations -- and we've dealt with, like, the biggest companies in the United States -- there's still people in charge of departments who want to get things right. And if you can get past the lawyers, oftentimes you are a lot better.
On the other hand, sometimes you need the lawyers to help the companies or government agencies explain hey, you've got a legal problem here. You have to get it fixed.
Right. Before I check and see if we have any calls on the phone, we've had people submitting questions.
Okay. Real quick, I have this slide up. I just want to say that the book, you can find out more information at LFlegal.com/book. It's not just for lawyers. I think one of the reasons it took me six years is because I was trying to write a real straightforward roadmap full of stories, and like I said, I interviewed probably close to 75 people to write the book. And then while we are doing the questions and answers, I am going to -- well, let me tell you one slide. More resources on my website at LFlegal.com, and the topics tab, which is at one of the high-level nav topics is called topics, and it has every article ever written on the website, including the settlement agreements, the press releases, as well as accessibility updates, things about talking prescription labels, the DOJ regulations. I have written a lot about delay in various federal regulations. I have a couple pieces on what the new administration -- so-called administration -- means to disability rights. So everything you can can find under topics. And the about page, # sn, there's interviews and podcasts. I was on public television, public radio, about the book. If you want to know more about Structured Negotiation, that's a good place to start.
Then in the resources page, I have resources related to digital accessibility, captioning, description, digital accessibility consultants, usability resources. So that's a good place to go.
And then while we are doing the questions and answers, I'll just put up the last slide about staying in touch, where I have my Twitter. Again, it's @LFLegal. The email list -- actually, this is wrong. If you want to join my email list, it's LFlegal.com/contact. You don't have to send me an email anymore. I have a really easy form. LFlegal.com/contact. The speaking page has the upcoming talks, and like I said, about/#sn has the interviews. So I will leave that up as we do the questions.
Before we check on the phone, let me get to another one from the webinar room.
Has this process been used with educational entities, public/private, K-12, post-secondary?
I have not use it with educational cases, but I think there's a lot of potential there. I think there's a lot of potential. Like I say, we did a case with the American Cancer Society, and I think non-profits and people, education institutes, government agencies who might have more concern about their budget are very ripe for this process. So I hope that Structured Negotiation will be used in the education setting going forward.
Okay. Dilem, do we have any questions on the telephone at this time?
Yes, sir, we do have a question from Peter Rice. Your question, sir.
Hi. My question is have you ever used this in lieu of a class action lawsuit against, like, a large state department, a state Department of Health and Human Services, or anything like that?
I haven't used it against a state Department of Health and Human Services. Most of my cases can be looked at as in lieu of class actions because even though we are representing just one or two individuals or one organization, we try to fix whatever we are working on for the entire company. So American Express I mentioned is a good example or Major League Baseball. Or the point-of-sale cases. Talking prescription labels. We are getting the solution throughout the company, not just for the individual. But I haven't had experience with the type of department that you are talking about.
Okay. Great. Thank you.
But I hope you will and let me know what happens.
All right. Another question from the platform. You gave an example, but this person is asking can you give an example of structured negotiation with a state or local government entity. And the person says the government entities usually have more reason to say no than private agencies. Then the question goes on, money is controlled at another level, so where does the negotiation start with the state or local government entity?
You have a lot of good questions in there. That's good.
Yeah, I talk about in the book with public agencies, it can be harder because there's more bureaucracy, and there might be less focus on the bottom line because the particular department isn't controlling the budget that you might need.
My experience with public agencies have been with the City of San Francisco on the accessible pedestrian signal, where we had that problem. Department of parking and traffic was initially the agency that dealt with accessible pedestrian signals, and that was the agency that had the fear, and there was bureaucracy, and that case took I don't want to say a long time, but I guess I have to say a long time, and required a lot of patience. Typically we are writing a letter to the highest, like, in the city we wrote to the city attorney. In the State Department, you would write to the top lawyer in the Department. But one of the things about the ground rules document, like I said, we identify the parties. That's a good opportunity to talk about who do we really need to solve this problem? And you might need to bring in a different party. Like you might have written to one department or to -- I mean, unless you are writing to the Attorney General of the whole state, which you could do, you might need to bring in other departments, having the conversation at the ground rules level is a good place to sort out some of these things to make sure you have the right people at the table.
All right. Very good.
This questioner has a sort of procedural question. When do you -- first, when do you first day that you will be seeking compensatory/attorneys' fees in the process to -- in addition to injunctive relief, that part of the opening letter, or do you wait until you have that ground rules discussion?
Great question. I am sorry I didn't mention that. Part of the opening letter. One of the reasons for that is at the end, where everybody is feeling good about things, you came up with a good solution, people are like wait, why are you talking about money? And often-times we have to say, remember back to the opening letter? And one of the things I write about in the book, typically we are not having to talk about legal cases in this process. But when it comes to money, sometimes we have to say what the basis for the money claims are, either for the clients, attorneys, and what other cases there are. Often we have to say as you remember, in the opening letter, if you need additional resources, let me know. We don't want to shower someone with a bunch of legal cases because that gets them feeling defensive, and we don't want anyone feeling defensive in this process because when you are defensive, you are not creative. So yeah, it's important in the opening letter to weigh it out. This is a legal claim, and here is the expectation for the release at the end of the day in general terms, attorneys' fees, client payment, as well as the supporting reasons for that.
And then again, at the ground rules, and then again at the end.
Okay. Another question about you touched on this in the middle of your presentation. But do you insist that the final agreement be public.
Great question. I would say -- I don't know. I didn't do a most recent count, but we have had a handful of agreements that are not public. I think it's really important, especially like we were talking about this class nature of it, where we are talking -- we are affecting a lot of people in the country. We want people to know what we are doing. We think having a public agreement is important. It builds credibility. It's transparency. It helps a community understand exactly what the obligations are. But we have had situations where we've had to give up on that. We had a company who just said we'd never do a public agreement. We just won't do it. So in those cases, it's very important to have the press release be very clear about what's available to the community even they they are not getting to see the actual details of the agreement.
Also you will see if you go to the settlement page of my website, we typically break the agreements down into the public agreement and the private, confidential part, and the private, confidential part is the money for the clients, the money for the attorneys' fees, the leases, you know, the typical legal language, and the public agreement is more the injunctive relief.
It's a good question. I try to insist on it, but I don't always get it.
All right. And another question, you talked a lot about patience and primarily patience from the attorneys' perspective. But how do you get your clients to be patient?
That is a very good question. Patience, yeah, you have to be careful with that. And it doesn't necessarily mean you are waiting a year to get access. If there's some, like, critical -- say it's -- I haven't done cases, but say there's an interpreter case at a hospital, you can't wait a long time. Patience doesn't necessarily mean a long time. But that's a really good question, and in the book, I have a checklist of working -- lawyers and clients working together to see if this process is the best for them, and the reason I did that checklist is because when I sent the draft of the book out, when the American Bar Association published it, they sent it to a lawyer on the east coast who said where does she get her clients? She has to explain how to work with people. The truth is in my work, I have learned a lot of patience from clients who are willing to wait to make sure that accessibility is deeply rooted and, you know, understanding that it takes buy-in. But there has to be a lawyer-client conversation at the very beginning because this process is not suited to everyone. And everyone has to agree, lawyers and clients alike, that hey, let's try this process. This seems like a good fit. And I have stories about clients and the types of clients it might work with or not work with. But it's all about having an early conversation about that.
Thanks for asking that. That's important.
Get to one more before we get to the bottom of the hour. Have you ever looked at case law in the various circuits, you know, as part of the consideration of whether or not, you know, this type of approach will work? You know, for example, when you look at how the circuits have varied on the ADA application to websites, where you have some circuits saying yes, where there's -- they offer the same goods and brick and mortar, the ADA applies. And other circuits that say absolutely, the ADA applies to websites. Does that enter at all into the consideration?
Well, you have to understand, we did our first Web case in 2000, and so our first probably ten or twelve Web cases were before there were any -- before this issue kind of got to anybody's attention on the circuit level. Or even the district court level.
Yeah, we write -- often-times, this is part of trust. We could say in the opening letter, you know, there's a split in the circuits. We might say this. Split in the circuits about this. One of the things about -- and I have examples of opening letters language in the book -- one of the advantages of Structured Negotiation is we can put that aside and we don't have to spend time and resources arguing it because the truth is the website applies in every circuit. So that is something that the response to the letter, like Major League Baseball, we've done many cases with websites that don't have brick-and-mortar component. We just did the (Inaudible). We've done many cases like that. The legal arguments are there, but those legal arguments don't -- the parties agree by being in this process that they are not going to really spend time and money fighting about that.
All right. Excellent. Well, thank you very much, Lainey. For the presentation, the overview of the Structured Negotiation process, and responding to the questions that our participants had.
You have Lainey's contact information for folks that if you have questions in the future.
I want to thank everyone for joining us today, the participants, you are the ones that drive the ADA Audio Conference series and the reasons that it's been around so long.
I want to thank Lainey not just for the 90-plus minutes that she spent with us today, but for the time and preparing for today's session. So thank you very much for that.
I want to mention that today's session will be archived and will be available within 24 hours. The audio archive of today's session. On the ADA-audio webpage.
Also want to remind folks for the next month, there is a day change. Typically the ADA Audio Conference is held on the third Thursday of the -- third Tuesday of the month. Next month it's going to be on April -- Wednesday, April the 19th. So folks be aware of that. You can get information about that session and register for that session by, again, visiting the ADA-audio.org website. If you have questions, you can contact us at 877-232-1990.
So again, thanks to everyone for joining us today, and thanks again to Lainey for the great presentation. Everyone, take care and good day.