By Richard Hunt

“Drive-by litigation.” That is how two major real estate trade groups referred to abusive ADA litigation in a letter to Congress. Do we really think a guy in a wheelchair who couldn’t get into the bathroom is like a murderous gang member killing for sport? To be fair, many members of the plaintiffs’ bar use equally strong language when describing real estate developers and owners. I’d like to suggest that if both sides focused on real problems instead of rhetoric we would have more progress and less litigation.

On the defense side, it’s a simple fact that most owners and developers care about ADA compliance both because they are human and because the economic costs of non-compliance exceed those of compliance. The statutory requirements are generally clear and in new construction most don’t create a significant expense.

Of course that doesn’t mean there are no mistakes, but these are mostly inadvertent. It takes a laser level to tell the difference between a 1:20 slope and a 1:15 slope, so it isn’t surprising that the guys pouring concrete don’t see an issue when they are a little off. The same kind of thing is true of the clerk stocking a grocery store at 3:00 a.m.  Why not put those summer ice chests on the top of the shelves when they are too big to fit on the available shelf space? It’s a long way from the developer or owner who believes in ADA compliance and the low wage laborer who doesn’t even know what the ADA is. Given that gap there will always be unintentional violations.  It isn’t useful or truthful to call the violators demons.

Looking at it from the plaintiff’s perspective, we have to admit that allegations of a failure to follow the standards are very often true. Imagine getting a ticket because your inspection sticker was three months out of date. You wouldn’t go home and compare the policeman to a murderer, and you would get your car inspected.  We also have to remember that there is no reward under the ADA for an individual plaintiff. A plaintiff may be an overzealous crusader, but he or she certainly isn’t greedy.

Instead of talking about demon developers and drive-by litigation we should be talking about how to make the private enforcement model in the ADA work without abuse. The present law invites abuse because it does not allow for any attorney’s fees at all unless a suit is filed and some kind of settlement or judgment is entered. For the plaintiff’s attorney a demand letter that results in remediation is a waste of his time, and the best way to make money is to bulk up any lawsuit with as many claims as possible. At the same time, without the risk of paying attorney’s fees in addition to remediation costs there is no economic incentive for an owner or developer to find and correct inadvertent violations of the accessibility standards.  It is just a fact that without some economic incentive to obey the law many people will not do what’s right.

The unpalatable alternative to the present private enforcement model is some regulatory regime of mandatory inspections and government enforcement. Unreasonable plaintiff’s lawyers are nothing compared to unreasonable bureaucrats. There are possibilities for reform that reduce the potential for abuse, but for now at least we are stuck with the statute as it stands. Hoping for reform tomorrow can’t replace strategic thinking today.

Demonizing a litigation opponent is a good way to stiffen one’s resolve to fight to the bitter end, but a fight to the bitter end is usually only good for the lawyers. What owners and developers should keep in mind is that there is an effective defense strategy within the current enforcement model.  There is nothing more likely to make a judge skeptical about the plaintiff’s standing, or about novel claims, than knowing the undisputed violations were fixed as soon as the suit was filed.  Fixing problems turns the owner into a good guy and the plaintiff’s lawyer into a shark without having to call him a shark. Fix if you can, fight if you have to is the rational solution to all ADA accessibility litigation. Calling names is not.