We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
The NYT article considers the potential effect on civic relations as certain lawyers avail themselves of “New York City’s age and architectural quirkiness” as the foundation for a flood of lawsuits citing violations of the Americans With Disabilities Act. It may come as some surprise to readers in this country that most of these suits – taken against owners of delis, bagel shops and assorted small undertakings usually occupying old corner shops in the country’s crowded capital – are not led by offended disabled plaintiffs. They start instead with law firms identifying the unfortunate businesses first, then recruiting plaintiffs from advocacy and campaigning groups to pursue the case. On some occasions the same plaintiff is used several times. One wheelchair user sued nineteen businesses in sixteen months; another disabled man, veteran of 143 suits, filed as many as nine claims in a single day. As the author explains,
The plaintiffs typically collect $500 for each suit, and each plaintiff can be used several times over. The lawyers, meanwhile, make several thousands of dollars, because the civil rights law entitles them to legal fees from the noncompliant businesses.
The American disabilities legislation prohibits discrimination by private entities that are open to the public. It is not difficult to latch on to a range of features in these small businesses that technically breach the terms of the legislation; cramped shops will inevitably have high shelves that cannot be reached from a wheelchair, and aisles that are too narrow; ramps often absent and even if they are installed they may be too steep or have no handrails. To make things worse, fees for lawyers are available from the public coffers, irrespective of the remedy available to the plaintiff . The Disabilities Act awards injunctive relief only, but disabled plaintiffs are entitled to damages if they also sue under city or state human rights law.
The problem with this flood of claims is that they tend to be settled at breakneck speed by store owners, cowed by the prospect of ruinous court proceedings. The courts therefore rarely have the opportunity to rationalise and perhaps modify the effect of the laws concerned. In the US, critics (including federal judges) have suggested that lawyers specialising in this area of rights litigation are “interested in generating legal fees; they say the lawyers typically do not give the businesses a chance to remedy the problem before filing suit”. Defence attorney for some of the businesses quoted in the article is Queens lawyer Ming Hai. He does not mince his words:
All they want is money; they get the money, and they move on to the next target …It has become a profession to go out and look for a little problem here and there.
It may be that these “little problems” should be corrected by something other than the sledgehammer of federal legislation.The truth of the matter is that the “greedy lawyer” problem will not go away whilst the laws are there to be exploited. Much the same has been said of the effect of our rights legislation on local authorities; that, in effect, its impact on society is determined by febrile litigation rather than the cool authority of the legal process itself, with its adversarial checks and balances.
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