Tim Elder’s Rebuttal Statement in Martinez v. County of Alameda

On April 1, 2024, in response to Defendant’s closing statement, Attorney Timothy Elder delivered his rebuttal statement to the jury in Martinez v. County of Alameda, 3:20-cv-06570 (N.D. Cal.) (filed Sep. 18, 2019). What follows is an accessible reproduction from the trial transcript. You can request an official version by following the instructions.

Rebuttal Argument

MR. ELDER: Good afternoon, members of the jury.

You just heard from my colleague, Mr. Gilbert. He suggested that there were a lot of questions for plaintiff, and I hope to give you as many of the answers as I can in the time allotted.

Mr. Gilbert reminded you that you shouldn’t decide this case on sympathy, and I agree with that. We want you to decide this case on logic, law, reason, and fact, and that’s what we’ve presented to you over the course of this trial.

This case basically has two parts to break it down at the most basic level. The first part is whether Ms. Martinez had equal opportunity to enjoy the benefits of the CRO on March 29th, 2019.

The second part is: What’s going to happen in the future if she goes back in a few weeks from now? Will she encounter the same problem?

There’s a couple — before I get into each of those parts, there’s a couple factual corrections that I need to make to the record that Mr. Gilbert suggested to you. First of all, the credibility of Ms. Martinez, who I hope you understand isn’t in doubt. She testified that she — under oath that she did not intend to record, and we showed you exactly how that had happened.

And he mentioned that if you listen to the last 20 minutes, she turned the recording off. Well, yes, she was leaving the window. She had to pick up her phone, move her stuff, and move over to the side. When she picked up her phone, yes, she determined, “Oh, it’s recording,” and had to shut it off. That’s exactly how it happened, and you can tell that on the recording.

So we’re not trying to hide anything. You can listen to it for yourself, but that’s what happened. She picked it up, realized it was recording, and turned it off.

There were some factual assertions about whether Ms. Martinez on her second trip was correct in that the County clerks were typing information on her paper form into the computer and sort of bolstering its argument that it doesn’t provide effective communication through a form. That’s not true.

You heard testimony from other witnesses, like Ms. Greco and Mr. Clark, that the County, it takes the information on that paper form and it puts it in the computer system. That’s how it keeps a copy of it. In both cases the County clerks for Greco and Mr. Elder in this case observed by Mr. Clark, me, they typed the information from the paper form into the computer system. That’s how they do it.

Now let’s talk a little bit about the first part of this case, about the March 29th, 2019, failure to provide effective communication so that she could enjoy the benefits of same-day filing.

Now, Mr. Gilbert has some very creative legal arguments in this case; and, unfortunately, he knows he can’t win this case on the instructions as they are written and how they should be interpreted, so he’s going to try to twist the instructions into a legal framework that he thinks he has a better chance of winning on. But let me walk you back through these, and I can’t show you the instructions right now but you’ll see them in a minute.

First, he suggested this case is about one thing, that Ms. Martinez demanded that they modify her form and she wouldn’t accept anything else. That is not true. Ms. Martinez was not there demanding that they absolutely modify the form and nothing else. She was there asking for assistance. You heard her testify. She would have accepted a blank form. She would have done whatever it would have taken there at the counter to get her business taken care of over the counter same day.

Now, there’s no dispute that she didn’t get same-day access and there’s no dispute that they didn’t offer her a blank form. The County can’t win on that argument, so it’s going to insist that this case is only about modifying, and that’s not the case at all.

She was asking for something more generally. She was asking for help. That’s what customers do. They have a problem, they go to customer service and say, “Here’s my problem. Can you tell me the solution? You’re the expert. You’re the clerk. How can we fix this problem? Let’s fix it together. Here’s my solution. Okay? If you’re not going to do that, give me another alternative, please.” Ms. Martinez isn’t the expert clerk. She doesn’t know what’s there and what could solve the problem.

You heard a lot of insinuations about the evidence of the DMV and Muni. Why didn’t she call the government to come in and testify? You know, it’s not the easiest thing to get the government, a third party like someone working at Muni or DMV to come in and physically testify in court.

But you did hear true, credible evidence from Ms. Martinez. She said that they do that for her. It makes sense. She has a State ID. She has to renew it. That’s evidence. We don’t have to go get the head of the California DMV or the head of Muni. We gave you good, reliable evidence from her own mouth that that’s what she gets and that’s what she does. So you can rely on that notwithstanding what Mr. Gilbert has suggested.

You also heard some very creative takes on what the concept of effective communication means. Now, effective communication is what’s necessary so that a person with a disability can enjoy the same benefits and privileges as everyone else. It’s not just: Was there a communication? Did they talk about the weather? Did they talk about the BART schedule going back and forth? Yes, they can effectively verbally communicate, no doubt.

But the effective communication that we look at is: What is the effective communication that is necessary to get the benefit of the government program? And in this case the government program is going to the Clerk’s Office, getting same-day service to file your form, and that is what we are talking about. It’s an equal opportunity for same-day service.

There’s no dispute that she didn’t have equal access because she didn’t get same-day service and so, unfortunately, the defendant is twisting the definition of effective communication into a narrower scope than what your instructions will say in hopes that you’ll be tricked into misunderstanding what the scope of effective communication is.

You can look at our slide. We’ve been consistent this whole time. It’s the effective communication to participate in the program. The only thing the County effectively communicated to Ms. Martinez that day verbally is that it wasn’t going to help her and that she should go away and come back later. There was effective communication that they would not allow her to file her form.

You also heard the defendant say that there was effective communication with the clerks, Ms. Moran and Ms. Briones. Again, that’s not the standard. It’s the effective communication with the County to participate in the FBNS program.

You also heard the defendant say that Ms. Martinez, she was able to fill out the form. She downloaded that PDF twice, and she said she was able to complete it. That’s not what she said. She said she couldn’t do it by herself. She had to get help. The first time she had to get her husband to help her. The second time she had Ms. Grim help her, and she had to pay her.

And then look at Mr. Clark in the case of him observing me filling out the form. I couldn’t do it. Mr. Clark had to do it. He had to help me.

I want to talk a little bit about this concept of violating the law. We’re not asking the County to violate the law.

First of all, the defendant is saying that this statute says that they can’t modify legal forms. That’s not what it says. It says they cannot alter deposited documents. It has nothing to do with legal forms or being signed under penalty of perjury. It’s all about the depositing.

Now, the depositing, I need to talk to you a little bit about this. And some of you may have concerns about should we tell — should we hold the government responsible for doing something that might violate the law. You have to use your common sense to understand. This is a federal case. If you say the law was violated, state law will have to bend to the injunction of this Court.

But let’s just quickly illustrate something. If I have my form, let’s say it’s filled out. I’ve signed it under penalty of perjury, and I’m going to deposit it. Okay. Let’s say that’s truly the definition of depositing. But the County rejected it and gave it back undeposited. I have this back. It’s not deposited. If I want to hold it and say, “County, would you please write on my form,” I can do that.

The form — even if you believe the County’s interpretation of this law that depositing is anything you just hand over, they turned it back to her. As you heard Mr. Yankee say, they undeposited it.

And if you think about this, you can use your common sense to support your understanding in this case. Think about it from a rational perspective, from your own personal experiences. When you go to the bank and deposit something, if you hand your check to the teller and it’s not right for some reason, some technicality, has that check been deposited in your bank account? No, it hasn’t. It hasn’t been deposited until the bank has approved it, accepted it, and processed it.

Let’s talk a little bit about the blank form. Now, unfortunately the County did not have sufficient ADA training to cause them to offer this blank form. I don’t know why no one thought after escalating this to three levels of management and having the availability of an ADA coordinator, no County employee thought, “Geez, I’ve got a problem here. Why don’t we just grab the blank form and offer to fill that out for her?” Why? Why didn’t they do that?

Well, you heard Ms. Moran testify. They don’t do that. They don’t fill out blank forms for anyone, in addition to the modifying. That violates the ADA for sure.

There is no legal reason. Even if we give the County the benefit of the doubt about the interpretation of depositing, they could have done this.

And then the question comes: Who’s responsible for thinking of that commonsense solution? Should Ms. Martinez have figured out that a blank form was somewhere in the office? Or should the County have thought there’s a blank form right here? We can offer this to her.

If you look at the Jury Instruction Number 12 for effective communication, and Mr. Gilbert displayed it for you, it says: The County shall take appropriate steps to ensure.

The County is the entity that is responsible for taking an affirmative step. Ms. Martinez is not in the place to come up with every creative solution. The County has to take those steps.

But, unfortunately, you heard Ms. Moran say they don’t fill out blank forms for folks. Not just because it’s illegal, but just because it’s a policy. And, unfortunately, without the ADA training to say that you should be filling out these blank forms for people with disabilities when they need it, and blind people need it when they can’t do it themselves there in the office, that’s when it’s necessary.

I’m sorry, how much time?

THE COURT: You have four minutes remaining.

MR. ELDER: Okay.

He also suggested that there was no intent because there was no spite or malice. That’s not the standard for deliberate indifference. You’ll see it in your instruction. Intent is not required.

She put them on notice and they knew the legal requirement. It’s there on the recording. She laid it out for them. They just were indifferent to that and said, “We’re going to stand by our policy. We’re not going to call the ADA coordinator. We’re just going to do what we think we want to do.”

The second part of the case I need to quickly say, Ms. Greco, yes, they helped Ms. Greco, but they also put out an e-mail in — later in 2023 after they’d rolled out the Wizard and said, “Don’t help people. Don’t fill out their forms for them.” You heard testimony about that e-mail. Unfortunately, it’s not in evidence, but there was an e-mail and we did ask the witnesses about it. They told people to stop doing that.

So I think in closing we would say, look, an injunction, an order from this Court is necessary because they’re not taking responsibility for this. They’re making excuses. We don’t have to do this because this form, we’re not responsible for it. We’re just a library. I mean, yes, we take the form, we look at it, we make decisions about it, we even take your information off the form, we type it in the computer, but we’re not responsible for that. That’s not a program that we’re running.

On the stipulation for state funding, I think this is just counsel has made — has regrets that they have made a stipulation that for purposes of that claim they do receive state funding, and he’s trying to walk it back; but as that fact has been established, follow Instruction Number 10 on the stipulation for state funding.

Ultimately, you, the jury, are going to be responsible for determining if the County’s new computer kiosk system is sufficiently effective to provide equal access to Ms. Martinez and other blind people. I think you heard sufficient evidence that it’s not.

Instead of this complicated computer system, we’re advocating for a much simpler solution: Have a clerk take a pen, put it on this paper, and just write on the form. But the County won’t do that so, unfortunately, we’re asking you, the jury, now. Take your verdict form, put your pen on it, and tell the County to do better. Ms. Martinez is knocking at the door. She’s asking you, the jury, to tell the County to do better because they won’t write on her form for her.

We hope you’ll pay close attention to the instructions, and we thought you were very careful about the evidence and the things that the County has said, but we’re going to ask you to find for Ms. Martinez on all of her claims.

We thank you for your time and appreciate what you’re here to do. You have the power to change how this story ends. It didn’t work out for Ms. Martinez five years ago, but what you determine on this verdict form, that will affect what she experiences in just a few weeks from now. Thank you.

THE COURT: Thank you, Counsel.