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View Diary: KosAbility: The Last Battlefield for Civil Rights (133 comments)

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  •  As you mentioned your law review.... (2+ / 0-)
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    KelleyRN2, DrPlacebo

    I wondered if you'd like to share some insight on the rulings regarding payment of lawyer fees---Among my friends at Advocacy Inc., there is a real concern about what will come of the ruling that relieves a losing defendant of  paying the plaintiff's lawyer fees. The general consensus is that this ruling will curtail attorneys from taking disability related law suits.

    Bear in mind I am a lay person...I rely on simplified explanations to help me understand the intent of the court's rulings!

    •  I believe the case you're referring to (2+ / 0-)

      is Buckhannon Bd. & Care Home, Inc. v. W.V. Dept. of Health & Human Res., 532 U.S. 598 (2001).

      Buckhannon does not relieve defendants of the obligation to pay the plaintiff's fees if the defendants lose in court. What Buckhannon says is that there must be a  "material alteration of the legal relationship of the parties" in order for the plaintiff to receive legal fees.

      Where a plaintiff prevails in court or reaches a legally binding settlement, the legal fees are awarded as per statute. However, what Buckhannon allows defendants to do is avoid paying fees by "voluntarily" ending a discriminatory practice or providing accommodations and thus making the lawsuit moot, before the court gets around to actually requiring them to do so.

      The reason this is so nasty is twofold. First, institutions can save money by simply refusing to provide disability accommodations until they are actually sued, and grant the accommodations the moment they know of a lawsuit in the works. They spend no more money than they would have been obligated to spend, because they aren't spending anything on legal fees, and also get to delay any spending until a suit gets filed. Second, because that kind of practice can effectively deny plaintiffs legal fees, plaintiffs are forced to spend money to enforce rights that the ADA supposedly grants them.

      Buckhannon also contributes to the negative public perception of the ADA by encouraging abusive litigation practices by plaintiffs' attorneys. Specifically, in order to win legal fees from the defendant, plaintiffs' attorneys have to focus almost exclusively on cases in which a defendant is unable to change its employment practices (for disparate impact discrimination suits) or begin accommodating a disability (for accommodation suits) on short notice; in practice this means focusing almost exclusively on accommodations that require extensive physical alteration to the premises. On top of that, plaintiffs' attorneys file lawsuits without notice, so that defendants don't have time to voluntarily make changes before trial. Under these circumstances, negotiating a settlement out of court, which is usually the preferred outcome for all parties, becomes virtually impossible.

      Between Buckhannon and the lack of compensatory damages in "unintentional" discrimination cases, I think everyone loses out: whole categories of disability discrimination become de facto permitted because no one can afford to sue over them, and businesses end up facing abusive litigation practices in the lawsuits that do end up being filed. Both of those problems would be solved by improving the remedies available to plaintiffs.

      Buckhannon was a 5-4 decision, with the five conservative justices apparently voting to protect businesses, but I think it was shortsighted on the part of the conservative justices. I wouldn't be surprised if it's ended up costing businesses more money in litigation expenses than it's saved them.

      Most of this argument isn't actually mine; refer to Samuel Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. Rev. 1 (2006).

      •  Thank you.... (1+ / 0-)
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        DrPlacebo

        Now it makes more sense. Misinformation about ADA cases is so frustrating. While documentation is available it's not always easily understood by lay persons. What's more it's fodder for rumors or interpretations falling far from the actual intent. I appreciate your taking time to answer my question. Thanks again!

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