In this episode with Lainey Feingold, we talk about online accessibility requirements and what lawyers should know about them. We also talk with Lainey about structured negotiation as an alternative to litigation, and how to get companies to actually talk to you in business law.
Lainey Feingold is an author, speaker, and disability rights lawyer who focuses on digital accessibility, which means making technology like websites, mobile apps, kiosks, etc. available to people with disabilities.
Lainey has represented blind people and their organizations for more than 25 years, and instead of filing lawsuits, she uses a collaborative process called structured negotiation (which she wrote a book about here!). Her goal is to help close the digital divide, eliminate conflict, build trust, and create relationships that are essential for systems to change.
The weirdest thing in Lainey’s desk drawer is a plastic dolphin keyring. Lainey rejects the metaphor of lawyers as sharks, since dolphins communicate, are collaborative, and solve problems. She embraces the dolphin and even hands out these key rings at her training sessions on structured negotiation.
Thanks to Gusto, Podium, Spotlight Branding, and Casetext for sponsoring this episode!
You can get Lainey’s book Structured Negotiations: A Winning Alternative to Lawsuits here.
In addition to continue working on cases and mentoring lawyers handling cases in structured negotiation, Lainey is offering structured negotiation workshops to give people the tools of collaboration that have been so successful in her work.
We talked about accessibility statements during the show—here’s an example.
Check out the other resources mentioned during the show:
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Voiceover: Welcome to the Lawyerist podcast, a series of conversations about law practice. Each week, we talk with legal entrepreneurs and innovators about building a successful law practice in today’s challenging and constantly changing legal market. And now, here are your hosts.
Sam Glover: Hi, I’m Sam Glover.
Aaron Street: And I’m Aaron Street, and this is episode 215 of the Lawyerist podcast, part of the Legal Talk Network. Today, we’re talking with Lainey Feingold about online accessibility, law firm websites and her invented structured negotiation concept as an alternative to litigation, all of which are more related than they seem.
Sam Glover: Today’s podcast is brought to you by Podium, Gusto, Spotlight Branding and Casetext. We wouldn’t be able to do this show without their support. Stay tuned, we’ll tell you more about them later on.
Aaron Street: So when this episode airs we’ll have been a couple of weeks removed from ABA Techshow, but we had a giant contingent of the Lawyerist team and the Lawyerist tribe there in Chicago and unfortunately, I was sick and didn’t make it, but I’m curious Sam, what are some of your reflections on your probably 9th or tenth Techshow experience?
Sam Glover: 9th or tenth probably, yeah. First, we had an insider meetup there, which was great. We had a bunch of people show up and hang out and we had a great time. It was one of the few chances I had at Techshow to actually sit down and talk to a few people for more than a couple minutes at a time, which is the flip side of my reflection on Techshow. It is such a fun place. There are thousands of lawyers, there’s hundreds of vendors. It’s so fun to be in the exhibit hall, and I had maybe two conversations that lasted longer than two minutes, because there is so much going on. It’s stressful, and I remember on multiple occasions seeing somebody I would have loved to sit down and have coffee or a drink or dinner with walking by and I just had to watch them go because I didn’t have time to talk to them. It’s hard.
Aaron Street: And how much of that do you think is the fault of the structure and format of ABA Techshow? And how much of that is because you are the Sam Glover?
Sam Glover: I don’t think much of it is the fact that I’m the Sam Glover, because I’ve heard that from almost everyone who attends, and I’m not sure it’s the fault of Techshow. It’s just a big event with a lot going on, and for those people who want to go and connect with other people, it’s just really hard to make space to do that. And then it’s so disappointing, you come back and like I really wanted to spend time with Natalie Worsfold who was a recent podcast guest and a friend, and I wanted to have dinner or coffee or a drink or even five minutes chatting with her and I didn’t get to. And I really wanted to spend time with Cat Moon and I didn’t get to. I didn’t even see her, I don’t think. And Patrick Palace and just a bunch of other friends who I wanted to see.
Sam Glover: And then you get back and you realize that there were a dozen other people who you didn’t even know were there, but I wouldn’t have gotten to talk to them anyway.
Aaron Street: I definitely don’t want to shit on the ABA or shit on Techshow, but you say it isn’t the fault of Techshow and yet if that is the common unifying thread of the people who would otherwise most value the event and everybody is coming back, if not disappointed, then at least frustrated with how overwhelming parts of it are or underwhelming other parts of it are or how massive and big it is. Is there something more or different that would be helpful?
Sam Glover: I mean, yeah. I think there is a Skunkworks project to imagine ways to change Techshow or ways to improve it, and I don’t know if that will go anywhere, but I think it’s more about the format. I mean, Techshow has the same format as lots and lots of conferences, so it’s not really a knock on Techshow, but it’s one panel after another with relatively short breaks. And even though they’re hour long in expo hall breaks, that’s not much in the context of Techshow. My takeaway is that our approach to LabCon, formerly known as TBD Law is 100% right, that making space to bring people together who want to be in a room together and want to have those important conversations together, and then not interrupting those conversations with panels and expo halls, vendors and exhibitors, is a really important and valuable thing, and I’m so glad that we do it.
Sam Glover: I just think in some ways it is everything that Techshow is not. It validates for me our choice to do it that way.
Aaron Street: But we’re still excited to keep going to Techshow.
Sam Glover: Oh fuck yeah. I mean, I love going there. It’s just there’s this frustrating component where it’s like, “God, I missed so many opportunities to talk with people.” I don’t know if I can hack Techshow and figure out how to do that in the future, but it’s exciting and exhausting and invigorating and ultimately kind of disappointing, which isn’t really Techshow’s fault.
Aaron Street: Cool. On a totally different note, and not to cannibalize the conversation we’re about to have with Lainey, but we are in the midst of rolling out our 2019 best law firm websites contest, I think our 10th annual contest reviewing the best law firm websites in the country. And this topic of kind of website accessibility standards is one that we take really seriously, and we’ve kind of had some interesting findings as we apply those standards as a criteria to what it means to have a great law firm website. I’m curious, some of your takeaways are anecdotes from this process in 2019.
Sam Glover: Yeah. I think I must have talked with Haben Girma before last year’s contest, because last year was the first time we started taking accessibility into account. And we run everything through pretty well established accessibility tool to figure out what kinds of errors websites are having. And both Lainey and Haben who are the two podcast guests I’ve had who are really thinking about accessibility and online websites and services, they’ve said how important it is to make accessibility part of the lens that you see the world through, and it’s not something you get to put on afterwards. And so I’m glad that we’re using it as one of the lenses through which we view the entrance in our best websites contest, because you can’t have a best website if it ignores 20% of the population.
Aaron Street: Yeah, and I think it’s interesting because we’ve tried to talk about this pretty much as much as we can, both in the text of those contest posts, but also in multiple episodes of this podcast. It’s a topic we take really seriously, and yet, it’s clear that in the submissions we’re getting from hundreds of lawyers and law firms and website designers all over the country, that it isn’t a topic that has bubbled up as something that the industry as a whole is spending very much effort thinking about at all. So much so that we were reviewing one entry in the contest yesterday that had a very nice looking website. It was a solo firm where the attorney is someone with a disability and the firm’s brand is around marketing to people with disabilities, and yet, it had one of the highest scores of accessibility errors of any of the websites in the contest.
Aaron Street: And I don’t put blame on anyone here, because it’s a new topic and it’s a hard topic and it’s not something that everyone is just born understanding as far as how web standards go, and yet it feels disheartening that we can be in an era where it is very easy to figure out what this topic is, and that it still remains something that people aren’t spending much time on.
Sam Glover: Yeah, and one of the troubles with this is, and Lainey only touches on it in passing, so I think it’s worth highlighting here is that the tools that we use to build websites are not built to be accessible from the ground up. This is really something where requiring each individual website builder to deliberately build accessibility into their website is the least effective and efficient way to do it. I know WordPress is getting better and many of the pieces, the plugins and extensions that go into WordPress are getting better at being sort of inclusive and accessible by design. I think Squarespace websites have a tendency to be good, but it also depends on every component that you plug into the website. Lainey even brings up the idea of cognitive accessibility, which is what about people with limitations on how their brain works that can’t understand the complicated legal jargon on your website.
Sam Glover: And so she actually has rewritten all of her pages with a summary that is accessible at a ninth grade level, something that wasn’t even on my radar, but makes a lot of sense and aligns well with how I’ve talked about how lawyers need to communicate anyway.
Aaron Street: Yeah. I mean, and this is kind of the mantra of all of these episodes where we’ve talked about this topic is it is almost always the case that addressing these issues also makes everything better for everyone else. And so like if you’re failing to write at a ninth grade level and it is an issue of disability access that causes you to address that, great that that was the trigger for your change, but if you’re writing at a law school level for your clients, you’re already failing.
Sam Glover: And because Lainey and I are going to get into that more-
Aaron Street: We’ll stop cannibalizing the-
Sam Glover: … I’m going to leave that for our conversation. We’re going to hear briefly with a sponsored conversation from Marc Cerniglia, from Spotlight Branding, and then we’ll hear the rest of my conversation with Lainey.
Marc Cerniglia: Hey everyone, this is Marc Cerniglia. I am one of the original co founders of Spotlight Branding. We’re an internet marketing firm dedicated to lawyers. More importantly, we try to guide lawyers to what we believe is a better way to market their practice so that they ultimately become unforgettable to their potential clients and referral sources. And really, the difference at Spotlight Branding, and I think you’re going to find this in our discussion today, is that we are really one of the only internet marketing companies that isn’t focused on search engines and instead is really focused on your brand and helping you stay in touch with people and really helping you build an unforgettable brand.
Sam Glover: So let’s talk about that quickly. You gave me three reasons why SEO is not necessarily where your attention should be focused. I’m going to cover the first two briefly, and then we’re going to really talk a bit more about the third one. So the first reason you gave me was pointing out that SEO has limited real estate, which is obvious. There’re only a couple of spots on Google and not everyone can win. The second one is that SEO often means competing for people who are shopping for lawyers. If somebody Google’s Ohio accident lawyer, they’re going to come up with a bunch of different options, and they may click a bunch of them and then do some price shopping. But the third reason you gave me is that SEO can be a distraction. So say more about that, because I think there’s a lot there.
Marc Cerniglia: Yeah, absolutely. Thanks for kind of setting that up. This one’s really interesting, because you’re right, it doesn’t take much to understand when you really think about it, okay, at the end of the day, why is everyone so focused on search engines, only so many people can win there and why focus on getting more clients. A lot of times those clients are price shopping. But the third one is so important, this idea of SEO being a distraction, because I think it’s the least obvious one. And there’s really two ways that I’ve seen SEO be a distraction. One is that I think it affects kind of the strategy upon which certain marketing efforts are executed. So for example, at Spotlight Branding, one of our sayings is that we focus on people not search engines.
Marc Cerniglia: And so what we mean by that is when we’re creating content, whether it’s website content, blog content or social media content, we are creating that content based on what we think a potential clients going to want to read, not what we think Google’s robots are going to want to read. I also see people, they get a website built and they’re so focused talking to their website company about, “Hey, well what are you going to do to SEO the website? Are you going to do some meta tags and things like that?” And what they just don’t understand is that stuff is so insignificant. Trying to do some meta tags on a web page, or trying to throw a couple of keywords into a blog is so insignificant. And here’s the key, it’s insignificant when that’s really all you’re doing in the realm of SEO. If you really want to go for SEO, you got to go big or go home, it doesn’t really move the needle to do a bunch of little things.
Marc Cerniglia: And that’s why really, most times you’re hiring a company that’s pretty pricey, and even then it’s hit or miss, but there’s a lot of stuff that happens, and a lot of stuff happens off the website too. So my point is that a lot of times it’s a distraction because you’re focused on the wrong things, you are doing things for the wrong reasons, creating content for robots, and not necessarily people, or if you’re having your web developer focus too much on SEO and not enough on the actual website itself, the design, the message it sends, the brand, the user experience. But the other area I want to touch on is that I think the focus on SEO has become so profound that lawyers are actually neglecting other types of strategies that could benefit them, particularly on the internet. I mentioned to you Sam when we were talking before we started this episode that there’s a study out there from the Texas Tech School of Business all on law firms that says most lawyers are only getting about one third of the referrals that are available to them.
Marc Cerniglia: In other words, the amount of people you know right now in your network, you can actually double or triple your referrals. And so we at Spotlight Branding, we look a lot at how the internet can help you do that. We look at how things like an email newsletter keeps you in touch with people, or how social media first and foremost, should actually be a tool to help you stay connected with your existing network, stay top of mind, reinforce your brand. And so some of these really simple strategies like a consistent social media presence or an email newsletter done the right way, goes such a long way in actually helping you increase your referrals, or build your brand, build your reputation. And I can’t tell you how many lawyers are out there focusing on search engines and meanwhile, don’t have a solid email newsletter or aren’t really doing social media the right way. That’s why SEOs are a distraction, either it leads you to do certain things the wrong way or for the wrong reasons or maybe even just to neglect some really fundamental areas of marketing such as a newsletter or something like that.
Sam Glover: Yeah, really has its own gravity. If you’d like to learn more, you can visit spotlightbranding.com/SEO to get the anti SEO guide. That’s spotlightbranding.com/SEO and you can find the link in our show notes. Thanks so much, Marc.
Marc Cerniglia: Thanks, everyone.
Lainey Feingold: My name is Lainey Feingold, and I am a disability civil rights lawyer in Berkeley, California. I’m also an author of a book about how I practice law, and I’m a solo practice lawyer who works out of her house.
Sam Glover: And a recommendation from one of our former podcast guests, the amazing Haben Girma, so I just wanted to give that shout out. Lainey, welcome to the podcast. Thanks so much for being with us.
Lainey Feingold: Thanks for having me. I’m excited to have a conversation.
Sam Glover: So tell me, what does a disability civil rights lawyer do exactly?
Lainey Feingold: Well, we do many things, but I have a very small niche. I have represented the blind community and blind people in the United States since about 1995, and that is pretty much the only people I represent is those organizations, representing blind people, and I work on technology issues, things like access to websites, ATMs that talk, prescription labels that can be listened to. So I do technology access for blind people.
Sam Glover: Very cool. This is a bit of a tenuous connection, but when you mentioned being from Berkeley, it reminded me of an excellent episode of 99% Invisible, which is sort of a design podcast where they talked about where one accessibility issue got resolved, which is in Berkeley and that was curb cuts, the things that make it so that you can ride a bicycle up a curb or a wheelchair, and the story is amazing. I assume you’re familiar with it?
Lainey Feingold: Yes. So Berkeley is known as the birthplace of the independent living movement and the first city to have widespread curb cuts, and some of the heroes of disability rights historically like Ed Roberts and Jacobus tenBroek was blind.
Sam Glover: And heroes, like Ed Roberts was a badass. He and his buddies would get their sledgehammers out and go make their own curb cuts at night in their wheelchairs. What an awesome guy? I love that story.
Lainey Feingold: Ed Roberts was an awesome guy and I was lucky enough to meet him when I first got involved in this work, but blind people have been badasses too.
Sam Glover: Absolutely.
Lainey Feingold: I have a friend Josh Miele, and in the ’90s he had a stamp made up that said, “Don’t believe the braille.” And he would stamp it on ATM screens because ATM didn’t work for blind people, but the American Bankers Association had put braille on them as if they would.
Sam Glover: So was it just fake braille?
Lainey Feingold: No, it was real braille, but ATMs are interactive as your listeners know, and so the braille could give some information like, call this number if you have a problem or insert your card, but you didn’t get the screen back and forth, which you need to use in an ATM. Now ATMs talk as result of work that my clients and I and other people have done, but at the time they didn’t.
Sam Glover: So you just reminded me of something that was a question. I remember when ATMs first became a thing and I remember seeing the braille on them, and wondering, when most of the interactions happen on the screen what good does it do me to know that a certain button is labeled one or A or B or whatever.
Lainey Feingold: Yeah, it doesn’t really do blind people much good, and that was my first entree into disability civil rights, and my clients and I worked with major banks in the United States in this process called structured negotiation, and we collaborated, and we tested machines, and get to do cool stuff like go into really secure places and look at the machines in development. And now pretty much all ATMs in the US should be talking.
Sam Glover: I think that’s a good entree into covering kind of an overview of what accessibility requirements actually are, especially in the online and digital world. You can’t just say you’re doing it, you can’t just slap some braille on it and say, call this number. What is actually required? And I realize it’s a big, broad topic and a big, big question, but maybe you can give us the short version of what you have to actually do.
Lainey Feingold: One thing I’m fond of saying, I do a lot of public speaking about accessibility, is that accessibility is not one and done. It’s not a sound bite and it is a civil right. So if you remember accessibility as a civil right, it can you remind you, “Oh, it’s about participation and inclusion.” And when you talk about the web, one easy way to think of it is when you think of deaf people, if you don’t have captions on your videos, deaf people are excluded from having information that you’re trying to provide the public. So there are international standards, there are business processes. I did a talk with a Microsoft lawyer last year where we talked about how to bake in accessibility, and we had cookies for everybody with all these different ingredients, because there’s so many rules and there’s design standards and coding standards and training and many things that go into accessibility.
Lainey Feingold: I think if you remember that it’s about inclusion, and it’s also about disabled people. So that whole ATM thing would never have happened if the American Bankers Association, which may well have been well meaning. They got the new Americans with Disabilities Act that said ATMs should be usable, they thought braille, but if they had talked to some blind people like they got to do in structured negotiations, they probably wouldn’t have done the braille. So including disabled people in all your technology, purchasing or design decisions is really an important piece.
Sam Glover: Yeah, we talked about that when I had Haben on too. That you don’t just get to do accessibility one time, it needs to be integrated into your design process. So if you’re building a website, before you upload the theme or the update, you need to consider whether or not this actually is going to be something that people who need assistive technologies can use. Can somebody listen to your website and navigate it that way, right?
Lainey Feingold: Yes. And the content management system in many ways should be better. For example, if you put a picture up on a website, on the back end, you need to say what that picture is, otherwise when a blind person comes across it, not only won’t they know what you put up, but it will often read as really distracting gibberish.
Sam Glover: We’ve been thinking about this a lot too, because they’re in many ways search engine optimization requirements overlap with accessibility standards, because Google’s algorithm, it’s web crawler bot is not a human, and it needs help understanding things, and sometimes those things overlap. But those alternative descriptions of images is a good example of where a lot of people name images using the keywords that they want the post to optimize for, rather than the description of what the image is, which is helpful. And so there’s some overlap, but they’re not always the same thing. I mean, that’s one change that we’ve made is we’ve tried to make sure that our alt tags are descriptive of the image, not trying to say something else in order to get some search engine juice.
Lainey Feingold: SEO is one of the many things that is good about accessibility beyond including disabled people, same way with captions. If your videos are captioned, you’re going to be getting more hits from the content than if they’re not captioned.
Sam Glover: And you’re going to make me happy. We’ve talked a little bit about Microsoft I think is the … Do they call it inclusive design is their theory?
Lainey Feingold: Oh, Microsoft, they are the leaders. It used to be I used to have to give talks and I’d have an opinion or whatever, but now, we can say, “We’ll look at Microsoft.” So they have built in … If your listeners aren’t familiar with some of these things, you can look in Word in the tools, they have an accessibility checker now, in the PowerPoint there’s an accessibility checker. And they don’t just say, “This is wrong,” slap you on the wrist, but they explain. I mean, the PowerPoint stuff’s amazing. They say you should do this because if you don’t do it, here’s what’s missing.
Sam Glover: Well, and they’ve incorporated it into their design philosophy as well, was one of the things I love. We’ve talked about this before, but the device you are listening to this podcast on began as a technology to enable accessibility, all aspects of it, right? Phones were a solution for people who were hard of hearing, so were keyboards and email, and so much of the technology we use today began as a solution to a problem that people with disabilities were having. And so Microsoft has just said, “Well, let’s try and solve all the rest of their problems.” And I bet the rest of us will find it useful as well, curb cuts being another example. I can ride my bike up a curb, but the solution was initially for someone with a wheelchair, so we can all benefit.
Lainey Feingold: Yes. There is a great list of those kinds of things, like a typewriter so two lovers could communicate with each other through, otherwise couldn’t. Which is one of the things I’ve really been thinking a lot about because it’s more legal attention to accessibility, and our professions looks at things a certain way, but accessibility has a potential to be so innovative and so creative. And there’s a tension there between when you put something into the law versus when you leave it for design and creative people, so that’s something I think about a lot these days.
Sam Glover: Well, maybe that’s a good point to sort of pivot to talking about law firms and law firm websites. We’ve tried to talk about some reasons that it’s a good idea to pay attention to accessibility, but let’s talk about the stick as well. I know Haben mentioned that law firm websites can be seen as a public accommodation, maybe you could help us understand that.
Lainey Feingold: Yeah, well, when we talked earlier about your interest in that, I said, “Wait, I think it’s actually in the Americans with Disabilities Act.” So Title III of the ADA is your listeners may know is the one that has to do with public accommodations, which are private companies that serve the public. And sure enough, right in the definition, there’s a whole list that starts out with a laundromat and deep inside a list of pharmacies, insurance offices, travel service, beauty shop and other things is office of an accountant or a lawyer. And the reason for that is simple when you go back to the civil rights. And so I like really separating out the legal foundation from the legal strategy, and I don’t see the foundation as a stick. The foundation is the inclusion idea, like, “Oh, you’re a lawyer, you’re serving the public, you should serve the whole public.” Someone who’s deaf or someone who uses a wheelchair or someone who’s blind, same with your employees.
Lainey Feingold: There’s more and more disabled lawyers and disabled judges, and basically digital should be born accessible now. There’s really no reason that everything that’s digital can’t be available to everyone, that’s the beauty of digital. So I don’t see so much as a stick, I see some of the strategies that people use to enforce the civil rights of sticks but I don’t see the law itself as a stick. I see it as well, it’s good we live in a place that recognizes everybody has a right to go to a lawyer, a laundromat or a dry cleaner.
Sam Glover: I don’t think it’s particularly productive to have a conversation where we sort of try to analyze what the law does and doesn’t say, but is there some pushback against the idea that law firm websites are a component of the law office and so they need to be accessible? Or do you think that it’s just not on the radar of lawyers? And I’m thinking about like, we do an annual contest of the best law firm websites and we take accessibility into account when we do that. Marshall is actually running them through the webAIM tool to try and figure out how accessible they are, a lot of law firm websites are not really paying attention to this, it doesn’t seem like. And so I’m wondering if it’s just not on the radar or if lawyers maybe just think that it doesn’t actually apply to their websites, only to their physical office or something.
Lainey Feingold: I would bet it’s more not on the radar, and also, I think a lot of law firms contract out their website, they have a third party do it, and maybe they have some general language in a contract that says this website will meet legal standards. I do a lot of work trying to talk to people about when you’re purchasing technology or technology services, you need to be really specific about what your expectation is on accessibility. It’s no longer just enough to say, “Give me something accessible.” How is it going to be tested? What standards are you going to use? Things like that. So I’d say there hasn’t been enough attention in the legal space on it.
Sam Glover: Do you have recommended language? Like if I were going to put together a contract with my web developer, would I use something like the webAIM tool and say, the contract says that there will be zero accessibility errors according to the webAIM tool or is there some better standard?
Lainey Feingold: The webAIM tool is good. WebAIM is an organization that does accessibility consulting, and they’re very skilled and the head of it is great, and it’s really good organizations. They would be the first to admit that an automated tool isn’t enough-
Sam Glover: Of course not.
Lainey Feingold: … if you want to ensure accessibility. But what’s happening now is there’s a lot of activity in the legal space which has attracted so called experts who aren’t really experts and people looking for a quick fix. So I would caution your listeners to not just … It is good to do automated testing, but there’s no substitute for having the site looked at and tested by people with disabilities, and you can write all that into the contract. I had a new website done a couple years ago, and I had very specific language about who’s going to test it, and when is it going to be tested before delivery? What happens when something gets delivered with accessibility errors? Whose responsibility is it to fix? Basically, law firms need to start treating accessibility just like they would any other quality that’s important to them like security, which gets so much attention, of course it should. We’re sort of hoping that one day accessibility will be looked at the same way.
Sam Glover: Would you be willing to share that contract language? I’m sure our listeners would be curious to know what that might look like when they’re looking for a developer to update their website.
Lainey Feingold: Yes, I can give it. It’s more, not too much language, but Mark could probably put something together like that, but more of considerations, because firms are different sizes but there’s certain considerations when you have a technology contract that law firms should know about because they’re advising clients who have their own websites but they also should know about for themselves.
Sam Glover: I would love to get that from you and when we do we’ll include it in the show notes. You have a list of five things lawyers need to know about online accessibility, are there some that we haven’t covered yet that we should make sure to touch on?
Lainey Feingold: You’ve probably read that article more recently than I have, so you might have to tell me about technology today. I mean, mostly, I feel like it’s an awareness right now. It’s an awareness thing. And in addition, I wrote that article about a year ago, which is in law technology today, people can check it out.
Sam Glover: We’ll throw the link in the show notes for sure.
Lainey Feingold: Yeah. As I just mentioned, because there is so much attention to the legal space right now, there’s a lot of lawsuits being filed, it’s really important to what I say vet before you get. Don’t just rush out and hire the first consultant that comes knocking on your door, and don’t recommend to your clients that they do that, because people end up throwing good money after bad, because they get scared or they’re just like, “Oh, we need to fix this quick.” You got to think of accessibility like you would anything you care about. Interview a couple people, see if you have internal expertise. There’s so much free information that’s good on the internet and this great conferences. So there’s a whole community of accessibility that isn’t so much about the law that lawyers can really learn from.
Sam Glover: I often find that when it comes to things that feel like marketing or sales, like a law firm website, lawyers really want a quick fix answer, and sounds like the answer is you kind of need to take the time to get this right. and it’s not just a quick fix answer yet. Maybe at some point in the future it’ll be as simple as, use this tool, or these are accessibility approved WordPress themes, or this website builder has got all the t’s crossed and i’s dotted and you can just use it, but right now it sounds like the answer is do a little bit of research.
Lainey Feingold: Yes. And some of these automatic site builders, they do have accessibility features, but they have to be turned on. They have to be used. And so some things might be simple, I don’t want to scare anybody away, and say you can’t do this without expertise, it’s not that, but you have to know why you’re doing it. Don’t think of it as a checklist. Lawyers like, “Oh, here’s the regulation. Check, check, check, I’m done.”
Sam Glover: It’s more about shifting the way you think about the things that you build, the things you put together and the design that you do.
Lainey Feingold: Exactly. You can look at websites and say, like people always say to me, who aren’t disabled, they go to my website, they’re like, “Oh, wow. It’s really easy to find things,” or, “Really easy to read it. I like the contrast.” Whatever, those are all accessibility things. So there’s a great expression that we have, which is essential for some, useful for all. And there’s some great videos, your listeners could start there. There’s some great three-minute videos, I can send you the link and you can just see, like captioning is a good example, without this feature that’s essential for deaf people, but it’s so useful in so many environments, noisy environments or whatever.
Sam Glover: For sure. We need to take a quick break to hear from our sponsors. When we come back we’re going to shift gears slightly and talk about your approach to structured negotiation as a way of resolving disability claims instead of litigation, sometimes at least, which I think is fascinating. And so we’ll be back in a minute to talk about that.
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Sam Glover: Okay, we’re back. So Lainey, we’ve set the context here by talking about online accessibility and how to think about it, especially in the context of law firms. One of the things you do is when you find a company that isn’t up to snuff on accessibility, you try to get them to change, and the way you do this is with an approach that you call structured negotiation rather than litigation or at least sometimes. Maybe you could set the stage for us. Tell us about that, and kind of what the different approaches, because I think like most of our listeners, I immediately asked you, well, what’s the difference between that and sending a demand letter? And why does it work better for you?
Lainey Feingold: Yeah. So structured negotiation, I actually wrote a whole book about structured negotiation [crosstalk 00:34:14]-
Sam Glover: You don’t have to try and cover it all here.
Lainey Feingold: … anyone who’s curious can check that out. When we first started working on ATMs we, for many reasons, decided rather than file a lawsuit, maybe we should try talking to the banks about the technology. We wrote letters to Bank of America, Citibank and Wells Fargo back in the ’90s, and much to our surprise, they all said, “Yeah, we’ll talk to you.” So we did this negotiation process, we didn’t call it structured negotiation. We were just sort of trying to solve a problem, blind people can’t use ATMs. And towards the end of those negotiations, our blind clients who really are integrally involved in the cases that I do, came to me and said, “There’s a new thing called online banking. We have to be able to use that.” And our blind clients were very early adopters.
Lainey Feingold: They had rigged up all these things like computers that spoke to the banks, and the bank information came back and it went to a braille display, and it was all new to me. I didn’t really know anything about this. We went to Bank of America and said, “There’s this thing, online banking, and it’s new technology, but that needs to work for blind people too.” And because we were in a conflict situation, there was no, “What do you mean? You have a new cause of action three years later.” It wasn’t that. It was about, we had the relationship. The bank people knew their customers who instead of being plaintiffs with a plaintiff hat on, were customers in a collaborative process. They said yes, and in 2000, Bank of America became the first company in the United States to make a commitment on web access.
Lainey Feingold: So we decided, “Wow, that really worked.” We didn’t have discovery, we had joined shared expertise, we didn’t have expert panels. I don’t want to say it was a love fest, because it wasn’t. There were lots of ups and downs on the way, but we’re like, “Wow, maybe this is a thing.” So we called it structured negotiation, and I’ve been using it ever since for 99.9% of the work I do. And I think the whole trick is in what you just said, how do you start?
Sam Glover: Right, because I think most plaintiffs’ lawyers are like, “Oh, I open up every single lawsuit with an opportunity to negotiate, and I send a demand letter in every single one,” and I think that’s the important difference.
Lainey Feingold: I really think the whole thing is in that, and in fact, I have a couple quotes in the book from friends who are more traditional lawyers who tried the process and one of them says, “Before I knew about this, I thought of a demand letter as just like check the box and the demand letter.” So to do an invitation to negotiate is really different, and one of the key differences is that you’re allowed to say something good about the organization.
Sam Glover: Right, I assume it’s not just a threat.
Lainey Feingold: Yes. Well, I have a slide in my slide deck of a cat looking in the mirror and seeing a lion, and I love that, because every organization, no matter how big or how small, sees themself in a certain way. And in many types of law, not just disability rights, you can frame the legal violations as inconsistent with how the company sees itself. We know you pride yourself on safety. I spent a lot of time on company websites looking at how do they think of themselves. So we write the letter and it’s very serious. We put in the statute, the case law, but even that we frame it, it’s all about the framing. Since we start the legal section with a sentence that says, “In structured negotiation, one of the beauties of it …” Not exactly this language. One of the beauties of it is that you don’t have to fight about legal issues you disagree on, but within that context, we think it is helpful to explain to you why this is a legal violation.
Lainey Feingold: Every sentence, the tone can be different without detracting in any way from the power of the claims or the value of your clients.
Sam Glover: I’m wondering if this approach … I think it probably has broader application. I’m wondering if it’s the kind of thing where lawyers just aren’t going to get themselves into the frame of mind, lawyers who are used to fighting and being bulldog litigators aren’t going to be able to get in the frame of mind that is approaching a company, a corporation that we’ve become jaded about or learn to view as the bad guy, I think it’s hard to approach a company like that with the idea that we can be partners in improving this thing and it’s a thing that you need to worry about.
Lainey Feingold: Well, the last chapter of the book is called Cultivating the Structured Negotiation Mindset. The reason it’s the last chapter is because I was afraid if I started talking about patience and trust and equanimity and not making assumptions at the beginning, I couldn’t get a lawyer to open the book. They’d open the book, they’d say, “Patience, trust, forget it. I can’t do this thing.” But I think those things can be learned just like we learn how to be aggressive, just like we learn how not to trust, just how we learn to make assumptions. Once we send the letter the next real juncture point, I call these, throw in the towel points, because there’s so many places along the way you could say, “This isn’t working. I’m going to throw in the towel.” And the very first one is what kind of letter you get back, and how you read that letter, because well first of all, there’s a time, do you even get the letter?
Lainey Feingold: You make up a date, “Please respond by X date, you don’t get the answer, you think they’re blowing you off. That’s an assumption. It’s not always true. I’ve often spend a lot of time that that date which I just made up, because we don’t have any court rules. So all the engine has to come from the party who wants to work in this way, which I’ve come to believe can also be the defense side. That you can get a lawsuit and say, “You know what, my client has defenses, but let’s see if we can work these out without spending so much time in negative energy.” So we get the response letter, and oftentimes, “We don’t have to do this. Websites aren’t covered by the law.” There’s lots of arguments. All you need is one line in there that says, “But we’re willing to talk to you.” Another slide I have is this big pile of nos. It’s like all these macaroni nos and oh and it’s … A great quote, I’m forgetting who said it, “I’ve stood on a mountain of nos to get to a yes.”
Sam Glover: That sounds about right.
Lainey Feingold: And I think lawyers, we’re just trained to say, “Oh, well they want to fight, we’ll fight.” Or, “They didn’t give me what we want.” But especially-
Sam Glover: I mean, that’s absolutely been my mindset in the past when I was suing debt collectors, same deal. I’m just like, “Screw you, here’s your complaint. Let’s fight it out.”
Lainey Feingold: Yeah, which lawsuits have been a very important component in civil rights cases and in the web accessibility space in the digital space. So it’s not like I’m here to say never to a lawsuit, but I think that especially on issues where it would be good for people from opposing clients to know each other, once you step into that lawsuit conflict space, it’s very hard to get to know each other as people. I mean, I’ve tried not to use the word plaintiff, because I looked up the etymology of it, and I swear to god it means wretched complainer. You can look it up yourself. And the word defend, it’s like you get a law suit, of course you want to defend yourself, you got a lawsuit. Is there a way as lawyers we can create an environment where people say “Yeah, we got a claim here. We have a problem, can we solve it together?
Sam Glover: I imagine the course of your conversations when you’re doing this sort of thing sometimes revolves around sort of the cost benefit, and I’m wondering, that’s one question when you’re dealing with a Wells Fargo, it’s an entirely different question when it comes down to the level of a small law firm. I’m wondering how you can help small firms think about the cost of being inclusive, the cost of complying, and I mean the actual monetary cost versus the benefit or the risk or however you want to characterize it. Because I know Jess Birken after she ran her website through the webAIM tool, decided she was going to make it as inclusive and accessible as possible, and I think the quote she got from her web developer was something like $10,000 to help her with, which is just like a non starter.
Sam Glover: So she did what she could and she documented that process and it ended up being less expensive, but it feels insensitive to even talk about it in that way, but it’s a real cost and I’m just kind of wondering how to think about it. I don’t really know how to think about it.
Lainey Feingold: Yeah. Well, there’s a couple things. One is that the Americans with Disabilities Act and most of the state laws that reflect the ADA are … Don’t forget, George Bush signed it into law. So there is an undue burden defense for this type of thing.
Sam Glover: Yeah, I guess that’s what we’re trying to figure out here is, what is that versus reasonable accommodation? And how to think about that?
Lainey Feingold: Yeah. I mean, one thing I really think is important is transparency, is to have an accessibility statement on your website. I have a post I can send you for the show notes with a few large companies, but you can look at my statement where I’ve been keeping track for like 67 years about companies making statements. And training your staff if you get a call, “Oh, I can’t use this on my website.” And one of the things I’m fond of saying is people don’t want to sue, people don’t even want to do kinder, gentler, structured negotiation. They want to go to a website get the information they need, get it quickly and go out. So say you have certain things like documents, like if you have a retainer, to make a document accessible is not as expensive a proposition as making a whole website accessible.
Lainey Feingold: So make a roadmap for yourself. Make it reasonable for your budget and your size and say what you’re doing. Say what you’re doing.
Sam Glover: I really like the transparency of that approach.
Lainey Feingold: Yeah, because what you can do is you can offer people a one off until the time your full site is accessible, you can make people know that if there’s something they can’t access, that you will make provisions to make it in accessible format for them. So every law firm should have a plan. And when you get a new site, there’s no excuse for the new site, because when accessibility is from the beginning, it does not significantly add to the cost. And if you get someone who tells you it does, then you should look around for someone else.
Sam Glover: So maybe the approach is identify all of the things, your documents, your website, whatever else you might have that you need to check the accessibility on, and then find out where they stand and the things you need to improve and come up with your roadmap and your strategy and maybe put on your website and let people know like, “Here’s what we know is not yet accessible, but it’s on our radar and it’s on our roadmap, and here are the dates we expect to be able to do something about it,” or, “Here’s why we’re not going to be able to do something about it.”
Lainey Feingold: Yes. Now, I could feel myself becoming a defense lawyer listening to you, because for people I work with, people would want to know that and people would understand. Maybe someone would go to the site and say, “Oh, the priority should be different,” and you would have an interactive experience with that, whatever. I know there’s debate in the defense community about the transparency piece, which I think the transparency is winning out. Microsoft is very big on transparency, for example. Anybody who’s global, I don’t know if your listeners have global law firms-
Sam Glover: For sure.
Lainey Feingold: … but there’s now international standards that specifically require the accessibility statement to be transparent, but there is that balancing act between, how transparent are you and a certain type of lawyer looks for that then says, “Hah.”
Sam Glover: Right. It potentially provides the ammunition for a gotcha, right? Because you’ve admitted that you’re not accessible on something.
Lainey Feingold: Yes. So I think the wording of it needs to be careful, but I think the more important part than saying what you haven’t done is saying, “We’re committed to making our site accessible. If you experience anything that you have a challenge around, call this number, send an email to this person.” And then it should go without saying, but it doesn’t, make sure whoever’s answering the phone or responding to the email understands that people use sites in different ways. Another piece we haven’t talked about is the whole cognitive accessibility.
Sam Glover: Oh, say more.
Lainey Feingold: Well, it’s getting more attention internationally, and there’s a task force on cognitive accessibility, which generally lumps in issues like how do artistic people interact with digital content or people with dyslexia. It’s hard for lawyers, because our information is complex, too complex, but people can see on my site, there’s basically three levels of accessibility standards in what they call the Web Content Accessibility Guidelines. And most organizations and law firms should be striving for AA version of meeting that standard. Well, given the work I do and my public role in it, I strive for level AAA. And one of the AAA requirements is to have your content be at ninth grade reading level or if not, have a summary. So I do that summary at ninth grade reading level for most of the content on my website. It’s a good exercise for me too.
Sam Glover: I think, you should be able to explain complicated concepts that at least in ninth grade reading level, so that just jives with what I generally tell lawyers they ought to be able to do anyway.
Lainey Feingold: Absolutely. Word has a checker. It’s not 100% accurate, but as part of the spell check, you can see the reading level check. And even things that I think I wrote, “Oh, I won’t need a summary, because the whole thing will be easy to read.” Rarely do you get to the ninth grade reading level, in part because we’re used to talking with a lot of clauses in our sentences, bigger words and things that pump up the reading level. But some of the issues around cognitive for example, not having flashing content or having a lot of white space, everybody likes that. Not having the videos come on automatically with the audio, things that are annoying. It’s another one of those essential for some-
Sam Glover: Annoying for others.
Lainey Feingold: Yes, exactly. So there’s a lot of really good work being done internationally on the cognitive piece.
Sam Glover: Very cool. Is there anything that we should cover that I didn’t ask you about yet?
Lainey Feingold: Yeah, I just want to say one thing about the sort of mindset of structured negotiation which is I really do think it can be learned, because I don’t think I was this person when I first started being a lawyer.
Sam Glover: You had a bulldog phase?
Lainey Feingold: Maybe not so bulldog, but I started out representing labor unions and doing traditional civil rights cases. So that’s one piece to say is that you can learn these things, and the other thing to say is that it’s almost miraculous how when you behave in a collaborative way, how everyone around the table becomes collaborative. And in the disability rights field, some of the defense lawyers, I know them through structured negotiation and other people know them through litigation. People behave differently. I don’t know if you’ve had anybody on who’s been to the neuroscience of things, but I completely believe in this mirror neuron thing. If one side is being problem solving, very hard for the other side to start being conflictual. I use a metaphor of the shark and the dolphin, why is this profession analogized to the shark?
Sam Glover: Why not the dolphin?
Lainey Feingold: Yeah, I do workshops on this and I say, “Well, what are the qualities of the shark?” And they’re like, “Aggressive, attacking, menacing, intimidating.” That’s what a lot of people think of our profession. And the dolphin gets things done. I mean, think of flipper, he was always saving the day, and there’s great science on collaboration with dolphins, and we don’t have to be sharks to get things done and to effectively represent our clients. So that’s been my experience, and I wrote the book because I thought it could be useful to others, so there you have it.
Sam Glover: I think that’s a great place to end. Lainey, thank you so much for being on the podcast.
Lainey Feingold: Thanks Sam.
Aaron Street: Make sure to catch next week’s episode of the Lawyerist podcast by subscribing to the show in your favorite podcast app, and please leave a rating to help other people find our show. You can find the notes for today’s episode on lawyerist.com/podcast.
Sam Glover: The Lawyerist podcast is produced with help from Lindsey Calhoon and edited by Paul Fischer. The views expressed by the participants are their own and are not endorsed by Legal Talk Network. Nothing said in this podcast is legal advice for you.