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Monday, February 27, 2012

A Disability Is Not a Disability - Advice on Litigation and Specific Data on Disabilities Under ADA/ ADAAA

A disability is not a disability is not a disability. There are condition-specific and disease-specific medical and other information which distinguish one disability from another. And these differences cane very important for framing litigation, and for considering needed ADA / ADAAA accommodations.

Dan Kohrman, at AARP, has some great advice in this regard. Here it is:

This is a message to all disability rights trial lawyers, including but not limited to employment lawyers.

Several recent messages on this listserv are very encouraging, in the sense that folks are reaching out to disability-specific organizations (like the American Diabetes Association) to assure that they have an understanding of disabling conditions in order to craft effective briefs, pleadings, and legal arguments under the ADAAA.

But these messages also cause me some anxiety to the extent they may represent things that could be handled perhaps differently, and possibly a lot more effectively.

For instance, it makes sense to contact staff and/or the website of disease- or disability-specific organizations EARLY ON in INVESTIGATING a potential litigation, and at very least early on in litigation itself, to assure that plaintiffs’ counsel master the science and medicine of the condition(s) at issue. 

Looking for such help any time is obviously better than not, but waiting until late in the litigation (e.g., near to the time of trial) (and I do not know enough about the messages I have seen recently to judge the relevance of this admonition to such messages) is definitely not optimal.

Also, it may be dangerous to draw on materials created in the context of ADA claims regarding one disability and apply them to another case involving a very different disability.

I only say these things because the ADAAA has given all of us a great opportunity – to get it right this time – by taking full advantage of a revamped and restored definition of disability and thereby to create a favorable body of law for our clients unlike the cramped interpretations of the ADA that have flourished in the courts based on pre-ADAAA law.

To do this in the most effective way, however, requires taking the time to learn the relevant science and medicine relevant to disabling conditions at issue from the very outset of a case.  We cannot stress this often enough in our work with colleagues.

So keep up the good work and best of luck to all!

Dan Kohrman | Sr Attorney-Litigation

601 E St NW, Washington, DC, 20049
Office: (202) 434-2064 | Email: | Web:

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