As an attorney involved in litigation, a big part of your job is to paint a picture. And it doesn’t matter whether you’re on the defense side or whether you’re on the plaintiff side, you want to paint a picture that gives the strongest, that gives your position the strongest look. So you want to make sure that not only that you win, but you win as much as possible.
And so when it comes to ADA website litigation, what plaintiff’s lawyers do is they want to make you, they want to make the website owners look as bad as possible. So they list off as many accessibility issues as they can think of, or they can find. And they will also say that it’s not limited to those issues, those are just some. They really want to make you look bad.
But as a defense attorney to these claims, you will need to understand them to properly defend against them. So you need to actually understand the technical side, because what I have seen happen, and this is from attorneys who are representing the largest corporations in the world. What I’ve seen happen is these attorneys don’t understand what is actually being claimed against them. And understandably so, this is not, technical accessibility knowledge is not something that you just read up on. You have to study it and research it for a while.
I have taken training from Karl Groves. I have taken training from Jared Smith and Jonathan Whiting at WebAIM. I actually went to Utah to get that training. I have watched Rob Dodson’s videos on accessibility and so many other accessibility experts. I have studied what they’ve said, and I’ve even got a book here. This is a book, I never finished reading it, but it’s Practical Web Inclusion and Accessibility by Ashley Firth, it’s a really good book.
My point is that the attorneys who are defending litigation in this space do not have the requisite knowledge to understand the material claims that are being made against their clients. And this is important not because you’re going to go to trial and because you’re going to, there’s going to be this Netflix worthy case that turns into a mini series where you’re so deft in accessibility and you’re able to weave through all of the issues. But because you can practically lower the settlement amounts and change the way the picture is being painted.
Because if you accept what the plaintiff’s lawyers are, what they’re claiming at face value, then it can make it look like the website is a mess and it’s riddled with inaccessibility and there’s no way that anybody with a disability could possibly use it. But now I will pull up on the screen a document and it says defenses to material claims as the heading one. And now I will read through some of the defenses that you could make for some of the claims that are being made.
First, there may not be an issue under the Web Content Accessibility Guidelines version 2.0 AA. Now I did say 2.0 AA because right now it’s not even, sometimes 2.0 is referenced, sometimes 2.1 is referenced. These are technical standards, they’re not the law. And so 2.0 will provide you with, I call it the classic standard. It provides you with a baseline of accessibility. That’s not to say that it will make your web asset completely accessible, but what it, it’s reasonable that one would think that WCAG 2.0 AA conformance would be acceptable particularly in light of litigation that is already tenuous to begin with given that there are no explicit requirements for making digital assets accessible.
So the next defense is not an issue under WCAG 2.1 AA. So I repeatedly come across claims that they are accessibility issues, but they don’t fall under the Web Content Accessibility Guidelines version 2.1 AA.
And I know WCAG 2.2 is set to be released in maybe possibly next month, but very, very soon. But nevertheless, 2.1 is still the current version. So if it’s not, we’re not even to this next version of the Web Content Accessibility Guidelines. And if a claim doesn’t fall under WCAG 2.1 conformance level AA, which is what the DOJ has even mandated in their own settlements for private enforcement actions that they initiated, then how can these plaintiff’s lawyers hold a private entity to a higher standard than that?
And then similarly, I have now, as I was going through the plaintiff’s law firm’s videos the other day, I came across a AAA conformance claim. And so what the plaintiff’s law firm was getting at is I believe it was success criterion 3.2.5, which is a AAA conformance requirement. And so they were listing that as an accessibility issue. Well, while it may be an accessibility issue, this is an extremely high threshold, which AAA conformance, there is almost no website that meets AAA conformance. No website in common, if you think of mainstream website, I don’t think you could find a website that’s in AAA conformance.
But my point is, is that the plaintiff’s lawyers are making claims and if you don’t understand what they are claiming, then you can go right along with it and accept it as an accessibility issue when they are going far beyond what would even be considered even remotely reasonable within plaintiff’s law firm’s claims. Another defense is that there may be a technical accessibility issue that exists. So something may not conform to a success criterion under the Web Content Accessibility Guidelines 2.1 AA, but it does not affect access. So practically the element or the page is still accessible. Yes, a technical issue exists. Yes, we could possibly find an issue if we were to run the page on a scan and it might return something, or we could just examine the code and determine, yes, there is a technical issue here.
But just because a technical issue exists, that does not mean that, that does not necessarily mean that access has been degraded or that there is a barrier to access or there is a significant encumbrance upon the user. So we have to look at these issues and determine, even if there is a technical issue, is meaningful access still available? So in the context of an e-commerce site, while yes, we can come across an accessibility issue, something that optimally would be fully WCAG 2.1 AA conformant and it’s not, but just because we can find that technical issue, it does not mean that access has been affected.
And then similarly, just because there is a minor inconvenience or something, an existing condition is suboptimal, it does not mean that there is indeed a barrier to access. So sometimes we’re aware of things that, yes, optimally we would change this or this might be a slight inconvenience to a screen reader user, but that minor inconvenience does not constitute a barrier to access. And of course, this is situationally dependent. We’re going to need to look at each situation, but we can make a defense to that material claim and say, yes, okay, there is an accessibility issue here, but what you are saying with these claims in the aggregate is that there has been an outright barrier to access and your client has been discriminated against.
And we can, as a defense attorney, we can change that picture and how it’s painted and turn everything around because when you understand accessibility and when you understand these different issues, then you can start to defend against them. And this is something that, again, most defense attorneys, they don’t have this knowledge.
And so they cannot fully defend their clients to the best way. They cannot optimally defend their clients, right? Like there is something where if they had it, then they could do even better. And we can always say that is the case, but in this space with litigation as it pertains to website accessibility, I know this is a common occurrence.
I know this is happening again and again because these attorneys are accepting cases and they just don’t understand the technical side. And if they did, they could make a better argument and likely get a lower settlement amount for their clients. And if the client is willing to take litigation further and actually continue on with the lawsuit rather than just settling, it could make for a stronger defense there, or at least the potential to have a stronger defense beyond just an initial back and forth and a settlement because when you do understand accessibility and you look through the plaintiff’s lawyer’s claims, you will understand that the client, you will understand that the plaintiff’s lawyers themselves in several instances do not understand the claims they’re making.
And I think sometimes, yes, they’ll include them just because they want to pile on as many accessibility issues as they can. But it’s sometimes as I read through their complaints, it is clear to me that they themselves do not understand what they are claiming, but as they are the aggressors, nor do they need to. It’s not as imperative for plaintiff’s lawyers to understand the claims they’re making because they are the ones that are on the offensive.
Whereas if you’re the defense, you have to be knowledgeable so that you can start to disarm the plaintiff’s lawyers and really break their defense apart and make what was initially this insurmountable evidence of all of these accessibility issues, we can take those one by one and just start dismantling their argument and really undoing a lot of the imagery that they’re painting.
