[thelist] Flash, usability, accessibility

Chris Kaminski chris at setmajer.com
Mon Jun 10 01:20:01 CDT 2002


Thus spake aardvark:

> hell, of course not... and i would never purport to be an expert to
> my clients, either, but since i am aware of legislation that *might*
> affect them in some way, it serves them to bring it up, frame it a
> bit, and then let them seek appropriate legal counsel...

I've got no quarrel with that. Other posters have voiced somewhat stronger
opinions. It was to them that I was addressing my comments.

> too bad it's often happened that their legal counsel has no idea
> about any of this stuff, let alone how it applies to the web...

Sad but true.

Of course, the law is a huge area. If you go to your hometown small-business
lawyer and ask him about foreign trade laws, you're gonna be up the creek.
Ditto using him for complex tax or estate situations.

Just as with doctors, lawyers can have a specialty, and those specialists
are necessary in some cases.

> i've never made that argument... i have *always* argued that Flash,
> in and of itself, is less accessible than HTML, and is far easier to
> make completely inaccessible... that doesn't mean all implementations
> are bad, inaccessible, or that HTML versions are always going to be
> better...

I think that's pretty fair.

>> If the latter is the case, then it seems to me that text-heavy sites
>> must also risk a lawsuit unless they provide audio and/or pictorial
>> versions of their site for those suffering from learning disabilities.
>
> this is a good point... somehow i suspect the impact on blind users
> will receive greater weight than that of learning disabled users...
> only time will tell...

Probably. As Laurel pointed out, the blind have better lobbying groups.

>> You're wrong. In the U.S., the constitution expressly charges the
>> courts with interpreting the law. Any interpretation by anyone else is
>> persuasive only inasmuch as it is a good prediction of what the courts
>> would decide were they to hear the case.
>
> the courts are only capable of interpreting the law if the case makes
> it to court... too many cases are settled outside of court by lawyers
> who make educated guesses on their chances of winning (and losing)...
> those settlements become a de facto ruling in the sense that later
> pending cases look to it to weigh their own chances...

Cases settle for a variety of reasons, not all of which have anything to do
with the odds of success or failure at trial, and most of which are never
known by the general public.

A small plaintiff may settle to save legal fees they can't afford, either
because the settlement may not be paid for years or because the settlement
wouldn't be large enough to cover legal costs. Likewise, a large defendant
may settle because their legal counsel costs more than the case, or because
they want to avoid the publicity of a full trial, or because they simply
don't want to take any risk--however small--that a case may go against them
and set an undesirable precedent.

The latter is especially true where you have a sympathetic defendant (a
little old lady, for example) and a jury trial. In that case, lawyers worry
about jury nullification, which is where a group of jurors essentially says
'screw the law' and decides the case based on some other standard for
fairness or compassion.

> so, if a site i build has a suit filed against it by a blind user,
> and my lawyer suggests i settle for a specific sum (in the litigious
> U.S., that can easily be a huge sum), then it really doesn't matter
> what the judge says since it never gets there, and i'm still out the
> cash and have to remedy the problem with the site...

You don't have to settle if your lawyer says so.

Even assuming you do, the whole grand point of the discussion, AFAIC, is
that the legal situation re: the ADA is murky at best. I was addressing an
individual who appeared to be making some pretty definite claims based on
specious evidence. There just isn't support in current law to say 'you'll
get sued if you build any commercial Web site using technique X.'

The nature of the site, the business of the site owner, the entirety of the
site owner's business and a number of other factors have a /lot/ to do with
the likelihood of getting sued.

>> None of which is terribly persuasive in a U.S. court.
> [snip legal comparisons, because they address *why* they aren't
> admissable (which is correct), which isn't really part of my
> argument, since i'm discussing out-of-court cases]
>
> no, but when my lawyer is deciding on settling, then it is...

Why? If the evidence isn't admissible in court, your lawyer will know that
and factor it in to the decision to settle.

>> Non-professionals can track and qualify whatever they like, but when
>> conflicts arise between disparate non-professionals or between
>> non-professionals and professionals I think it entirely appropriate to
>> ask for the backgrounds of those involved in order to weigh the
>> relative persuasiveness of their arguments.
>
> yeah, but i wasn't challenging that, either...

Then the problem is...?


chris.kaminski == ( design | code | analysis )

------------------------------------------------------------
    Less is more.
    --------------------------<< Ludwig Mies Van Der Rohe >>




More information about the thelist mailing list