Looking Back at 2020
With the end of 2020 and an Administration change coming up in a few weeks, I really struggled to come up with a blog post for this week. These are the most uncertain times I’ve ever lived through: a big job change, a worldwide Pandemic, a highly-polarized world where each half of each country pretty much loathes the other half. Web accessibility is important but it does pale in perspective. But I committed to a blog post each week. So along with our wishes for a better 2021, here’s my post for the week.
A few days ago, Jack McElaney at MicroAssist noted that there is some controversy about the number of web accessibility cases that were filed this year. My friends at Sayfarth Shaw in DC reported that numbers seemed to be down for the first part of the year but this was for all ADA cases-- not just web accessibility. This seemed a bit inconsistent with the numbers from Jason Taylor at UsableNet, when he indicated that numbers were actually up for web accessibility over the entire year. While these viewpoints are not inconsistent, I did find them a little at odds. And, back in October, a glitch in Lexis had me wondering aloud whether web accessibility attorneys had suddenly had taken a holiday because I saw ZERO cases being filed. Jason reached out to me on LinkedIn and we discussed this phenomenon. So, rather than add fuel to this fire, I thought I'd discuss why it's really hard to come up with an accurate number.
This exercise may seem boring to many people but most people who are not attorneys may not use some of the resources that lawyers and web accessibility specialists use for finding these cases. Another factor that puts these tools out of reach is that they are phenomenally expensive. My Lexis account, for instance, costs me about $350 each month. Yet, it’s important to appreciate how these systems work—and why it’s entirely plausible that different specialists in web accessibility can come up with entirely different numbers. As I’ll hopefully demonstrate, understanding the true number of web accessibility cases isn’t as objective and easy as, for instance, identifying the true number of voters who voted for Joseph Biden and Donald Trump in the State of Georgia (for the record, it's incontroversial and comes out to 2,473,633 for Biden and 2,461,854 for Trump).
Does This Really Matter?
I should start this discussion by noting that this really isn’t my passion. Cataloging new web accessibility cases is something that I really have barely any interest in. The reason is that the numbers are only rough indicators (as I'll describe in this post). Plus, they are almost certainly vastly outweighed by the number of grievances solved by demand letters (where an attorney writes a letter threatening litigation but doesn't file a complaint in court)-- and we will never be able to capture that metric.
My real interest in web accessibility is how this topic is treated by the courts. This is a subject that I have presented on at conferences like CSUN and Accessing Higher Ground for years now because I’m a bit of a geek when it comes to understanding how the law develops. Whether 200 or 250 web accessibility cases were filed in the Southern District of New York isn’t really that interesting to me. But, when I go fishing for judicial opinions about web accessibility, the new complaints are bycatch in the daily alert I have set up in Lexis. Accordingly, I do have some knowledge about the topic of how we identify new complaints and so I thought I would share this with you. Beware though: you may start questioning the numbers in the future!
Westlaw, Lexis, and Pacer
There are three big online systems that lawyers from my (ancient) generation use-- Westlaw, Lexis, and (to a lesser extent), PACER. Each of these services has its advantages and disadvantages.
When you see pictures of attorneys who want to appear erudite, you’ll usually see them standing in front of a bookcase of perfectly matching books with odd titles, like “Federal Supplement, 2nd Series 676” or “Federal Reporter 520”—the only feature distinguishing adjacent books within a set is the last number. In a law library, there are row after row of tall bookshelves with thousands of these books. These volumes are published by the West Publishing Company (now part of Thomson Reuters), easily the biggest name in legal publishing in the United States. The company was started back in the 19th Century when lawyers had a really hard time finding compilations of statutes and court decisions. While the text of statutes and cases are, of course, public domain, West Publishing had the brilliant innovation of adding “headnotes”—tiny one or two sentence summaries of important legal points that they carefully indexed. Each headnote had a heading, which served as the 19th Century equivalent of tagging notes in Evernote. For instance, if an attorney wanted to find every case on the issue of whether civil rights laws covered the internet (or, say, “horse farms” as the internet didn’t exist back then), they would look for the headnotes with the heading, “civil rights – coverage” and look for a headnote that mentioned the words “internet” (or “horse farms”). From a legal and business perspective, the true brilliance of this innovation is that it made public information suddenly subject to copyright protection. This transformed West Publishing into a virtual monopoly because every attorney in the country would need its publications. Then, early in the 1970’s, it became apparent that these books could one day be replaced by an enormous computer database available through the internet—and thus Westlaw was born.
There was, however, another player already on the scene. In the 1950’s, the early predecessors of Lexis had started as a specialized database of general legal and business information. Lexis also used a set of headnotes to index (and legally protect) their information but, it didn’t have quite the same scope of legal information because of the enormous head start enjoyed by Westlaw. When I was in law school back in the 1980’s, we always duplicated our research efforts using both Lexis and Westlaw, but by now it’s probably safe to just choose one or the other. This is great because, as crazily expensive as Lexis tends to be, Westlaw has historically been more expensive (I’ve always been partial to Westlaw because I preferred their system of headnotes but I just can’t afford it)!
And I’m not the only one concerned with these costs. Indeed, high costs have always posed a huge barrier to lawyers and the public in accessing legal information. In the late 1980’s, the Administrative Office of the United States Courts created “Public Access to Court Records” (PACER)—an electronic database that collected judicial filings and opinions. While PACER isn’t free, its costs are quite low and are not subscription-based. This means that anyone can maintain a PACER account and use it to look up the latest development in new cases. The biggest problem for many attorneys, however, is that PACER doesn’t provide document-level search indexing. This makes it impossible, for instance, to look up cases or court filings that include both the word “website” and “accessibility”, in the same sentence (thankfully, other services augment PACER to provide document-level search indexing). Plus, PACER has historically been a more or less voluntary effort by the different courts around the country-- and many courts are excluded entirely.
Every Service is Imperfect
The Services are Imperfect
As I hope my description above suggests, each of these services is imperfect. They are generally quite good at finding judicial opinions and case law (what Westlaw and Lexis were originally designed for) but, if we're splitting hairs over the exact number of new complaints, I am certainly not fully confident they reliably capture all new complaints filed in the various clerks offices of courts around the country.
Searches are Imperfect
Another problem is that there are some variety of web accessibility cases that aren't relevant. For instance, let’s assume Westlaw, Lexis and PACER were each perfect systems (which they certainly are not) and we just limited ourselves to cases filed in federal courts. In the last year, a good number of hotel web accessibility cases where filed. In these cases, a plaintiff (usually with a physical disability) asserts that they could not tell whether a hotel room that they were interested in reserving had the necessary accessibility features. Describing these accessibility features is spelled out explicitly in Section 302(e) of the 2010 ADA Title III regulations.
(2) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –
(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;
(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.
While hotel reservation cases are brought under ADA and Unruh Act (just like regular web accessibility cases), they do not raise the same issues as web accessibility cases and frankly, 99% of the time, they aren't relevant because they have little to nothing to do with the design of a website. In other words, even if you could use Westlaw, Lexis, and PACER to find every web accessibility case, there’s a very good chance that your search would include a lot of irrelevant cases. And the only way to distinguish them is to read each case carefully and categorize them
And, while I just mentioned Unruh, another problem is trying to identify exactly what we're counting-- specifically, are they ADA cases or Unruh cases? Over the last year, I've noticed a definite shift in web accessibility cases towards California state courts and claims only under Unruh. As California state courts are courts of general jurisdiction, they can hear any claim that arises in their region, regardless of whether it is a state claim (e.g. Unruh) or a federal law claim (e.g. ADA). By contrast, the only way that a Federal court will hear an Unruh claim is if it is tied to an ADA claim (this is what lawyers variously called "supplemental jurisdiction," "ancillary jurisdiction," or more specifically "pendent jurisdiction"). So a true count of all web accessibility cases would also need to include the California state court Unruh cases, which some services (e.g. Lexis) make particularly difficult without a special subscription for California courts. And then there is always the possibility that other plaintiffs may pursue their web accessibility cases in a different state court under a different state law.
And Sometimes the Systems Just Break
The problem that I’ve had with Lexis in getting basic alerts is a great example of how imperfect these systems are. Back at the end of October, I stopped getting reports of any new complaints after October 10. And I still haven't. In the meantime, Jason Taylor told me he's seen plenty of new web accessibility complaints. My problem? Lexis isn't reliably cataloging them. To prove this point, I performed searches for serial plaintiffs because I imagined a few of them wouldn't just stop filing complaints.
For instance, let’s look at Windy Lucius—a serial plaintiff in a number of web accessibility cases. On December 23, 2020, she filed a web accessibility case in the U.S. District Court for the Southern District of Florida alleging that the website of Etro (a high-end designer company) was inaccessible to her and could not be used effectively with her screen reading software. Paragraph 2 of the complaint alleges that,
2. Plaintiff also utilizes the internet. Plaintiff is unable to read computer materials and/or access and comprehend internet website information without software specially designed for the visually impaired. Specifically, Plaintiff utilizes the JAWS Screen Reader software, which is one of the most popular reader Screen Reader Software ("SRS") utilized worldwide.
Yet searching for
website /s “visually impaired”
which means “the word ‘website’ in the same sentence as ‘visually impaired’” won’t find this case on January 3, 2021. Yet, it’s not like this case can’t be found in Lexis because searching for
will bring up this complaint!
Bottom Line: A Truly Accurate Number is Almost Impossible
Most of the people who read our blog come from a technical background and not a legal one. I hope that this post reveals why legal research on this topic is so difficult for the following reasons:
- No System is Perfect. None of the (expensive) legal databases services are perfect and they sometimes include different content.
- The Searches aren't Perfect. Even if they were perfect, there isn’t an easy way to narrow down a search only for true web accessibility cases. This is demonstrated by the hotel web accessibility cases.
- They Probably Don't Include State Courts. As cases shift to California state court, ADA web accessibility cases are being replaced by Unruh web accessibility cases and
- Sometimes The Systems Just Break. The databases are occasionally internally inconsistent—sometimes including content from text-based searches and sometimes not.
With this background, I hope you can understand how two different groups of web accessibility specialists can come up with entirely different answers when asked about the number of web accessibility cases filed in 2020.
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