According to the Fort Worth Star Telegram the long running case Frame v. City of Arlington has finally settled. The case was filed in July of 2005, involved an appeal to the Fifth Circuit Court of Appeals in New Orleans and a Petition for Certiorari to the United States Supreme Court. Now, after seven years of litigation, the City will spend around $200,000 fixing its sidewalks and pay the plaintiffs’ attorneys more than $300,000 in legal fees.
What’s wrong with this picture? After 30 years of litigation experience I know better than to second guess the lawyers who were on the ground in the middle of a legal battle, but now that the dust has settled it is clear that the end result doesn’t make any sense at all. If the plaintiff’s lawyers were paid $300,000 it is more than likely that the legal fees for the City were the same or more. The legal fees in this case were almost certainly at least three times the cost of fixing the problem, and the problem still hasn’t been fixed, although it will be over time. This can’t be what Congress had in mind when it passed Title II of the ADA and set up the existing mechanism for private enforcement.
Unfortunately, although it is clear that the private enforcement mechanism for ADA claims is broken, it is equally clear that in the present political climate it will not fixed. We can also blame the plaintiffs and their lawyers for filing this kind of lawsuit, but they are beyond the control of any municipal government, and will only be emboldened by this result. For cities the solution to the litigation problem can only come from within. When a claim is made or a lawsuit is filed somebody in authority must step back and ask whether it is going to be more expensive to fix the problem or to fight it. No municipal government wants to deny the disabled access to city services that other citizens take for granted, and if the cost of making city sidewalks and facilities accessible seems daunting, the cost of fighting over it is even more so. The seven years of struggle and expense in Frame v City of Arlington prove what every City Manager or City Council should know: the best response to a claim under the ADA is Fix First, Then Fight.
