Local disability rights lawyer offers alternative to lawsuits

Jan 4, 2017

 

Disability rights lawyer Lainey Feingold is known for negotiating landmark accessibility agreements. She pioneered a dispute resolution method called “Structured Negotiations.” Instead of suing companies to be more accessible to the disabled, she talks to them, builds relationships, and brings her disabled clients to the negotiating table. Feingold is the author of  Structured Negotiation: A Winning Alternative to Lawsuits.

FEINGOLD: Disabled people are often the people who know best what they need. When you stick yourself into a lawsuit, a plaintiff doesn't always have a voice in the solution.

Below is a transcript of the full interview: 

Lainey Feingold: When I think about my work I think about the first thing we started with which was ATMs that talked for blind people.  In the mid-90s there were none anywhere in the world and the blind community came to me and to my colleagues and said “we have the Americans with Disabilities Act we really should be able to use an ATM privately like anybody else does.”  And instead of suing, we wrote letters to Bank America, Wells Fargo and Citi Bank and much to our surprise all those banks said “yeah we will work with you on developing talking ATMs” and that’s what happened.  And my earliest memories of doing this kind of work is just watching how these bankers, you know sort of traditional bankers, who originally felt “oh we could put braille in our machines that will be enough”.  They would meet blind people they would see that they could not use the ATM and that would be like a light bulb going off and that really cemented the idea that forming relationships is a really key part of resolving legal problems.  

Hana Baba: Because before that was it primarily about the lawsuit?  That was the way that things got done?

Lainey Feingold: That’s the way I had always done things.  And when I represented labor unions we did arbitration but in both of those systems you have a third party making the decision and so you’re giving up some amount of control and it’s a very procedural basis -- rules, it’s when can you talk to people, how do you talk to them, what rules, especially in disability rights disabled people are often the people who know best what they need when you stick yourself into a lawsuit a plaintiff doesn’t always have a voice in the solution.

Hana Baba: And what else is lost when people choose lawsuit versus no lawsuit?  What is gained and what’s lost?

Lainey Feingold: That’s a very good question and in the book I actually have a checklist for lawyers and clients and advocates to go over at the beginning to figure out what really is the best strategy to solve the legal problem that they have in front of them.  The biggest thing I think that’s lost when you do a lawsuit is the control, because you’re having a third party decide, on the other hand sometimes you reach an impasse and you need a third party and it’s a lot more expensive to do things in litigation.

Hana Baba: So you tried it, it seems like it worked, that these big banks were receptive to just talking to them basically and letters, which seems really interesting that that would work.  Why do you think they were receptive to that?  In our minds they are these big banks and corporations, you know what was it that got them?

Lainey Feingold: I think there are many answers to that.  I think when approached in a collaborative way without rules to say no when you file a lawsuit there’s a whole bunch of ways you can say “no” to that lawsuit.  When you send a letter and we explain what the legal claim is and it’s serious, it’s not like it’s less serious but it’s a way of saying here’s another path to solve these problems and not that they embrace us with open arms but you don’t need to be embraced with open arms you just need a little sliver where the company or the government agency is saying “wait that might make sense, you know, why don’t we see if we can work on this together, it will save us money”.  They lose control too if they go to a court.  So I think it’s the control, the money and I also think structured negotiation and the issues I work on give these big companies an opportunity to do the right thing.  

Hana Baba: At what point did you feel you know, structured negotiations will work in different types of cases against different types of entities?  At what point did you say, did you realize “I have a thing and it’s working”?

Lainey Feingold: Yeah that’s a really good question. I think we named it Structured Negotiation after we were successful with those first three banks. So in the field of talking ATMs which we then went on to do with banks across the country and also with accessible websites because as we were working with the banks towards the end of the ATM development all of sudden everyone was starting to do their banking online. And if websites are not coded properly on the back end blind people cannot use them.  So we went to Bank of America and we said
“I know we haven’t talked about this in four years, but we have a new issue.”  And if we had been in a lawsuit we would have had to tell a Judge about it, the bank could have said “you’re way too late on this you never mentioned it” but instead we had the relationship.  So when we told them we have to work on Online Banking, they did and we got Bank America to do the first agreement in the country in 2000 on making sure that online banking could work for disabled people.

Hana Baba: And what does that tell the disabled community when these big corporations are actually receptive to your work?  What message is that?

Lainey Feingold: The message was “whoa this is an effective strategy”.  One thing I say throughout the book, I’m not here to say it’s the only strategy but it’s been a really effective strategy.

Hana Baba: So do you see then structured negotiation working in other fields other than disability?

Lainey Feingold: I think it will and I’m hoping my readers are going to answer that question.  I wrote the book as a way to give the method over to people in all fields. And not just lawyers, it’s not just written for lawyers, it’s also for advocates who can go to their lawyers and say “you know we think this might be a good strategy for our legal claims.”  So the book is really a road map through the process how to write the kind of letter that will invite people to participate, how to agree on ground rules, how to have a meeting when there are no court rules telling you when, where and how. Those sorts of things. So I am hopeful and I’m actually confident that the process will be useful in a whole variety of different kind of situations.  That not only does it achieve great results but it really makes the participants feel good about the process.  We work with a lot of big pharmacy companies on talking prescription labels and I brought a sample.

Hana Baba: Talking prescription labels?  I want to see a talking prescription label.  Can I see?  

Lainey Feingold: I want to show you.

Hana Baba: So what is this?

Lainey Feingold: So I’ve just given you like a … looks like a piece of plastic maybe a CD player size and the company called Envision America makes those available to blind people for free.  Then the next thing to show you is a standard looking prescription bottle, you couldn’t tell but at the very bottom there’s a RFID chip, Radio Frequency I.D .Chip.  And now we’re going to put the bottle on the reader and see what happens:  (Bottle talking)

Digital device: Patient:   John Smith medication.  

Amoxicillin:   250 mg tablet.  

Instructions:   Take one tablet daily three times daily with meals.  

Hana Baba: That’s fascinating and so that came out of a structured negotiation settlement.

Lainey Feingold: Yes we’ve actually done structured negotiation about talking prescription labels with several major pharmacies and this is another example where the blind community had an opportunity to work with the pharmacist and say “we really need to have information on the labels”. When you think about it if you give a print label to a blind person it’s as if you give a sighted person medication with no label at all.  So this has been one of the success stories of structured negotiation because the law does not specifically require this particular product but in structured negotiation the parties can work together on solution and this is the solution we’ve worked out in several cases.