June 2013 | Finance Issue
Why Digital Accessibility Matters to the Legal Profession—A Conversation with a Young Blind Attorney
Daniel F. Goldstein is a partner at Brown, Goldstein & Levy, LLP in Baltimore. Since 1986, Dan has served as counsel for the National Federation of the Blind, and he is recognized as one of the nation’s foremost practitioners of disability rights law. For this article, Dan sits down with Matthias Niska, an associate at Brown, Goldstein & Levy who happens to be blind, to discuss the importance of digital accessibility in the legal profession.
DAN: First of all, Matthias, what is “digital accessibility”?
MATTHIAS: One dictionary definition of the verb “access” is to “obtain, examine, or retrieve (data or a file).” So when I say “digital accessibility,” I mean the ability of any person, regardless of disability, to “obtain, examine, or retrieve data” from a digital source. It is important to note that digital accessibility requires that all aspects of the digital experience be accessible, i.e. the hardware, the operating platform, the software program or application, and the data itself.
Another way to think about digital accessibility is to apply the concept of “universal design” to the digital world. The term “universal design” was originally coined by architect and North Carolina State professor Ronald Mace to mean “the concept of designing all products and the built environment to be aesthetic and usable to the greatest extent possible by everyone, regardless of their age, ability, or status in life.” So when we talk about digital accessibility, we mean that digital products and programs are designed “to be aesthetic and usable to the greatest extent possible by everyone,” regardless of disability.
One thing to bear in mind is that unlike print, which is inherently visual, or spoken speech, which is inherently audible, digital information is nothing more than zeros and ones—the native language of machines rather than human beings. Therefore, this digital data must be converted to be accessible to anyone, regardless of whether or not she happens to have a disability. When you really stop to ponder this point, you realize that the potential of digital technology and content to level the playing field for the disabled is staggering. Unfortunately, for reasons that are more about cultural values and stereotypes—i.e., forgetting about the minority of people with sensory, perceptual, cognitive or physical disabilities, or not realizing that they, too, can be full participants in the workplace and elsewhere—than about technical feasibility, technology developers build in gratuitous barriers without even realizing it.
DAN: I suppose those are good definitions of “digital accessibility,” as far as they go. But how will we actually know whether a given piece of technology allows a person to “obtain, examine, or retrieve data” regardless of her disability status?
MATTHIAS: While some devices have accessibility features built in, more often than not the practical reality of digital accessibility means that the hardware and operating platform being used are compatible with separate assistive technology programs and/or devices employed by the disabled person. These assistive technology programs or devices vary, of course, depending on the particular disability. For blind users, common assistive technology includes screen-reading programs such as Job Access with Speech (JAWS), manufactured by Freedom Scientific, and WindowEyes, manufactured by GW Micro, which convert digital characters on the screen into synthesized speech (accessed through speakers or headphones) and/or Braille (accessed through a refreshable Braille display). For low-vision users, the aforementioned screen-reading technology may be combined with a high-powered screen magnifier such as ZoomText, manufactured by Ai Squared. (Screen-readers and magnifiers may also be helpful or even indispensable for users with dyslexia and other print disabilities). For users with dexterity impairments or other disabilities that hinder them from using an ordinary keyboard or mouse, speech-input programs such as Dragon, manufactured by Nuance, may be essential for full digital accessibility. And while my understanding is that digital accessibility problems are less prevalent for persons with hearing impairments, these users may sometimes require closed-captioning in order to access the auditory components of digital content.
In this interview, I’d like to focus on the screen-reading technology used by the blind, both because that is the technology with which I am most familiar and also because it is my (admittedly anecdotal) understanding that most digital accessibility problems arise in the context of incompatibility with screen-reading software.
DAN: All right, I think that is a helpful general explanation of digital accessibility. Let’s make it more concrete. Can you give some examples of inaccessible digital materials that you, as a blind screen-reader user, have encountered in law school or in your law practice?
MATTHIAS: Sure. One of the accessibility problems I have most frequently come up against is working with Adobe Portable Document Format (PDF) files that have not been properly coded and tagged. Essentially, these files amount to images that do not contain the characters and structural data that a screen-reading program such as JAWS converts into synthesized speech or Braille. Even PDFs that contain character data but have not been tagged are difficult for the screen-reading program to negotiate, as words often run together and the document’s text may not be read in the correct order. These inaccessible, image-type PDF files used to be the rule rather than the exception, but Adobe has recently increased its commitment to digital accessibility, and the accessibility of Adobe’s Acrobat Reader program to screen-reader users has improved. However, it is still common for a screen-reader user to encounter image-type PDF files that he cannot meaningfully interact with, or alternatively must attempt to run through a separate optical character recognition (OCR) program, which may or may not yield an accurate and easily-navigable translation of the image file.
I have also encountered many accessibility problems when trying to conduct web research. Perhaps the most common source of inaccessible digital content on the web is the ubiquitous presence of Java and Flash objects, menus and graphics that, similar to many PDF documents, amount to images lacking any data that can be accessed by a screen-reader. Whether unwittingly or knowingly, many businesses and even governmental and educational institutions design their websites with only visual appeal in mind, and so fail to address the needs of screen-reader users. These accessibility barriers are not only frustrating and inefficient for any screen-reader user attempting to conduct a simple web search, they are also entirely avoidable, as will be discussed below.
While the two main legal research websites, Westlaw and Lexis-Nexis, are accessible to screen-readers, I feel that both sites could be easier to use. For example, a screen-reader user must learn a rather lengthy list of tricks and work-arounds to use the ordinary versions of both sites efficiently. Westlaw also offers a text-only version of its site that is specifically designed for screen-readers, but I have found that the text-only site’s excellent screen-reader compatibility and ease of use comes with a significant trade-off, as many of the tools and features available on Westlaw Classic and Westlaw Next are unavailable on Westlaw’s text-only site.
Another significant challenge that I have encountered in law school and in my young practice is the inaccessibility of visual exhibits and of handwritten and irregularly printed documents. Screen-readers such as JAWS and OCR programs such as Kurzweil 1000, manufactured by Kurzweil Education Systems, cannot translate untagged graphics or pictures, are almost always unable to read handwritten documents, and are often unable to read irregular or unusual fonts. This means that a blind law student or attorney will inevitably encounter exhibits or documents that she is unable to translate into synthesized speech or Braille, no matter how many technological resources she has at her disposal. In practical terms, a blind lawyer or law student will likely need to occasionally have a sighted reader available to help access some types of information. Whether that reader is a volunteer, a person specifically paid for her reading services, or a staff member such as a legal assistant will depend on the particular blind attorney’s economic and employment situation. But my view is that, in the interest of efficiency and autonomy, the use of such a sighted reader should be kept to an absolute minimum.
DAN: Are there any other examples of inaccessible technology that you have heard about from other blind attorneys, legal professionals, or law students?
MATTHIAS: I have been told that virtually all case-management and discovery-management programs are not compatible with screen-readers such as JAWS. I have not needed to use such programs at this early stage in my career, but I have heard about other blind attorneys who have raised these accessibility issues with the makers of these programs. As far as I know, no satisfactory solutions have been achieved to this point.
I also understand that many timekeeping/billing software programs are inaccessible. The billing software used by Brown, Goldstein & Levy, Time and Billing System (TABS), is not compatible with JAWS, nor was the billing software used at the Minneapolis law firm where I worked during law school. Both firms have allowed me to work around this obstacle by inputting my hours into an accessible Microsoft program such as Word or Excel and then having another staff member import those hours into the billing system.
As this last example makes clear, the inaccessibility of case-management or billing software is somewhat less of a problem for a blind attorney working for a law firm or a government agency where sighted staff members can help than it would be for the same attorney if he wished to work as a solo practitioner. But regardless of whether or not the blind attorney in question is able to use sighted assistance to access these programs, the same autonomy and efficiency concerns previously mentioned apply here with equal force.
DAN: It certainly sounds like there are a lot of inaccessible technologies out there. Can you give a few examples on the other end of the spectrum, technologies that are very good in terms of screen-reader accessibility?
MATTHIAS: Sure. Most Microsoft Office applications, especially Microsoft Word and Excel, are extremely compatible with screen-readers. Microsoft Power Point is also accessible for the most part, although some items on slides, such as untagged pictures and graphics, as well as certain complex tables and charts, may not be accessible.
I mentioned earlier that accessibility features are sometimes built into digital devices. Apple has become a model for this kind of native accessibility technology in recent years. For example, iPhones, iPads, and Macintosh computers all come equipped with Apple’s own screen-reading program called VoiceOver, making these products accessible right out of the box, and rendering installation and use of add-on software programs such as JAWS or WindowEyes unnecessary. Beginning with the 4S, the iPhone also contains a native voice-input program called Siri that makes the device much easier for persons with dexterity impairments to use.
DAN: OK, I think we have a pretty good handle on what digital accessibility looks like. But why should technology developers care about making their products accessible?
MATTHIAS: I can think of at least four reasons. First, it is simply good business. According to one estimate, as of 2005, 54.4 million Americans – 18.7 percent of the population - had some type of disability. Another report estimated that in 2011 there were approximately 21.2 million American adults age 18 and older experiencing vision loss. While not all those with visual impairments rely on screen-reading software to access digital information, the segment of the American adult population that does is economically significant and growing.
Second, paying scrupulous attention to digital accessibility may protect technology developers from legal liability. If a technology developer is a state or local government entity, or receives federal financial assistance, it may be required by Title II of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.) and/or Section 504 of the Rehabilitation Act (29 U.S.C. § 794) to make its programs and activities accessible to qualified persons with disabilities. More important, the Department of Justice has proposed regulations under Titles II and III of the ADA(42 U.S.C. § 12181 et seq.) to make clear that websites are places of public accommodation where their physical counterparts would be so, and that governmental websites are government programs and activities subject to the ADA’s anti-disability discrimination mandates. Finally, some states have disability discrimination laws whose scope is even broader than the federal statutes and which may, implicitly or explicitly, mandate digital accessibility. (See, for example, Kentucky’s statute regarding assistive technology (Ky. Rev. Stat. Ann. § 61.982 (2000).)
Third, “universal design” principles can and do benefit disabled and nondisabled users alike. Let me give a few examples to illustrate. Apple implemented the VoiceOver screen-reader and the Siri voice input program as accessibility features on its devices, presumably with disabled customers in mind, but both of these features are also routinely used by nondisabled persons. The American Federation of the Blind invented the long-playing record to serve the needs of the blind and visually impaired, but that technology quickly became useful to the sighted as well. Ray Kurzweil’s invention of a reading machine for the blind led him to invent sophisticated scanning and optical character recognition technology that has become almost ubiquitous in our modern society. And the requirement that airports have wheelchair ramps and other accommodations for wheelchair users made it possible for the invention of the rolling suitcases that so many of us now use. As these examples and numerous others make clear, the adherence to universal design principles in the promulgation of new technology benefits everyone in the long run, not solely the disabled.
Finally, technology developers should care about making their products accessible to all because, quite simply, it is the right thing to do. Our world has become increasingly reliant on digital sources of information over the past two decades, and it would be wrong to shut out a significant segment of the population from this essential aspect of participation in our modern society. Not only is a lack of access to information for the disabled immoral, but I submit that it is entirely unnecessary. As previously mentioned, digital information is not inherently visual. Indeed, the exact same digital information can be made available visually, aurally, and even tactilely, all at the exact same time. This means that the increasing prevalence of digital information offers the blind and those with other disabilities, for the first time in history, the tantalizing possibility of truly equal access to the printed word. But that possibility can only be realized if technology developers become champions of digital accessibility.
DAN: Let’s bring the issue closer to home. Why should attorneys and other legal professionals care about digital accessibility?
MATTHIAS: Well, certainly members of the legal profession should care as much or more about complying with the law and with being inclusive and welcoming of everyone as do technology developers. So most of what I said in my last response applies with equal or greater force to attorneys and legal professionals.
But I think the legal profession has a unique concern. The growing necessity for legal professionals to be familiar with new and emerging technologies, that they improve their “digital literacy” if you will, was recognized by the American Bar Association in the summer of 2012. At its annual meeting in August, the ABA’s House of Delegates adopted six resolutions to amend the Model Rules of Professional Conduct. Specifically, the ABA revised Comment 6 to Rule 1.1: Competence to read, in relevant part: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” If attorneys have an ethical obligation to keep up to date on changes in technology, as the ABA now believes, it logically follows that part of this obligation is learning about, and then adopting strategies to implement, digital accessibility within their practices.
DAN: Enough about the problem—let’s wrap up by talking about possible solutions. From your perspective, what are some suggested best practices for technology developers to ensure that the technology they are producing is accessible?
MATTHIAS: Well, I am hardly a technology expert. Nor, I suspect, are most of the people reading this article. So I will try to keep my suggestions fairly general. First of all, if a developer has already been doing things the right way, accessibility is more a matter of tweaking than overhauling. In other words, it is often the exception rather than the rule that accessibility requires new technological innovations as opposed to just paying attention to existing standards and best practices. For example, technology giants such as Microsoft, Apple, and IBM (with respect to its own products rather than companies it has acquired) typically have full accessibility built in to their products before these products hit the market. But even when a developer has not prioritized accessibility in the past and so must make more significant changes, it is far easier and cheaper to design new technologies with accessibility in mind than to attempt to go back and retro-fit older ones. Prioritizing the design of born-accessible technologies over the retro-fitting of existing ones also enables persons with disabilities to truly have the same digital experience, at the same time, as everyone else. Separate is notequal. And, because the digital world is such a rapidly changing place, where technologies are constantly becoming obsolete and being replaced by newer and newer ones, retro-fitting makes little practical sense anyway.
Second, if technology developers truly want to become inclusive, forward-thinking champions of digital accessibility, they need to sit down at the table and talk with disabled people and disability advocacy organizations. Disabled people know what they want and are advocating for themselves like never before. But they need technology developers to be willing to cooperate, so that they will not be forced to turn to legislation or litigation as last resorts.
Finally, because it is an issue I know something about and because I understand that it continues to be a major problem, I want to make a few specific suggestions about web accessibility for the blind and print-disabled. Some technology developers object to making their websites accessible because they assume that doing so will be costly or difficult, or because they think that doing so will make their site less visually appealing. But, as mentioned above, the reality is that the cost of designing a new site so that it is accessible to screen-reader users—which is in fact negligible— is far less than is the cost and effort involved in attempting to retro-fit an existing website. And designers who are aware of screen-reader accessibility issues can design sites that are both visually appealing and also accessible by (1) constructing text-based rather than graphically-based menus, (2) using “tags” (brief textual descriptions) on all pictures and graphics, (3) ensuring that buttons, forms, and links are not only graphically but also textually labeled, and (4) inserting simple structural data such as heading levels to help screen-reader users quickly and easily navigate their sites. For more detailed accessibility guidance, Web designers should refer to the Web Content Accessibility Guidelines (WCAG) 2.0, developed by the World Wide Web Consortium (W3C).
DAN: And what are some suggested best practices for legal professionals to ensure that the technologies they are using in their practices are accessible?
MATTHIAS: I think my best practices for attorneys and other legal professionals can be summed up in three words: awareness, education, and implementation.
The first step, of course, is awareness of the issue. I would guess that the vast majority of attorneys and legal professionals have probably never encountered a person with a print disability, or even if they have, they probably haven’t observed or given much thought to how that person accesses digital information. So the mere realization that digital accessibility is a potential problem is a huge first step for most legal professionals. I hope that reading this article has brought about that awareness.
But awareness of the issue is not enough. The next step is education. There are resources, articles, and books about accessibility, and digital accessibility experts of all kinds, waiting to be tapped into. Search for and learn from these sources, and make your IT staff aware of them as well. Look for CLE seminars about digital accessibility, and, if none exist, ask your local or state bar association or other organization to put one together. Invite an accessibility expert to your firm to conduct an in-house accessibility training. If an in-person training is not financially or logistically feasible, conduct one online or over the phone. Our increasingly digital world has the advantage of making previously crippling geographical limitations much less of a barrier.
Third, apply the knowledge you gain and transform it into concrete results. Put together an implementation plan, which can be as detailed and formal as suits your office’s needs and style, and then follow that plan. Your plan should help you not only know which areas need to be addressed, but also state which are higher and lower priorities and which can be accomplished on shorter or longer timeframes. Actively communicate with your IT staff to make sure they are transitioning to accessible technology as soon as feasible. Either you or your IT personnel should discuss your accessibility concerns with technology providers. If the particular provider you and your IT personnel are communicating with is not receptive to your concerns, find another one who is. Perhaps most critically, integrate accessibility mandates into your contracts with these providers so that if they fail to make their products accessible, you will not be contractually obligated to continue doing business with them.
Obviously, you will not be able to transition from inaccessible to accessible technology at the drop of a hat. Take it one step at a time, one technology at a time. Remedy the most pressing concerns first, particularly those that may affect people without as well as within your organization, such as inaccessible PDF documents or your organization’s inaccessible website. These matters are urgent because many members of the public have print disabilities and you simply cannot know when a prospective client with a print disability will walk through your organization’s door or try to access your organization’s website. Fortunately, these pressing issues are often the easiest to fix. Then move toward the implementation of more accessible programs and applications within your office. Even if you do not at present have a print-disabled employee, one of your employees may become so in the future, and you do not want to be caught unprepared should that happen. Nor do you want to put your organization in a position where it wishes to hire a talented print-disabled applicant, but is reluctant to replace all the inaccessible technologies it has purchased and implemented.
One final point. It is a sad reality that, while there are more and more successful attorneys and legal professionals with disabilities, many of these disabled legal professionals remain employed in the public sector or operate their own solo practices. It is my sincere hope that a happy byproduct of an emphasis on digital accessibility in all quarters of the legal profession will be an increased open-mindedness within the private bar to employing persons with disabilities. In other words, I hope that a frank and unabashed dialogue about digital accessibility will help law firms of all sizes understand that making accommodations for qualified disabled legal professionals is not simply a legal obligation or a warm, fuzzy ideal. Digital accessibility is also an entirely achievable, worthwhile goal that will benefit disabled and nondisabled legal professionals alike.
LAW PRACTICE TODAY
Micah U Buchdahl, HTMLawyers, Inc
Andrea Malone, White and Williams LLP
BOARD OF EDITORS
John D. Bowers, Fox Rothschild LLP
Margaret M. DiBianca, Young Conaway Stargatt & Taylor, LLP
Nicholas Gaffney, Infinite Public Relations, LLC
Nancy L Gimbol, Eastburn & Gray
Richard W Goldstein, Goldstein Patent Law
Katy M. Goshtasbi, Puris Image
William D Henslee, Florida A&M Univ College of Law
Allison C. Shields, Legal Ease Consulting, Inc.
Gregory H. Siskind, Siskind Susser, P.C.
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