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

On March 26, 2024, Attorney Timothy Elder delivered his opening 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.

Opening Statement

MR. ELDER: Okay. Members of the jury, thank you for your willingness to serve and thank you in advance for your attention to the important issues we’re about to discuss.

My name, as you heard, is Timothy Elder. I represent the plaintiff in this case, Lisamaria Martinez. She’s sitting at the end of the table over there. Her friends affectionately refer to her as LM.

Ms. Martinez is blind. Outside of this courtroom, Ms. Martinez lives a full and rich life. She has an established career in serving the blind community. She’s taught many blind people to read braille, to use a white cane, and to otherwise gain their independence.

She’s worked as a director at the San Francisco Lighthouse for the Blind about three blocks from here near the BART station.

She holds several volunteer positions and leadership roles in the blindness community. Among other roles, Ms. Martinez —

MR. GILBERT: Objection, Your Honor. Relevance.

THE COURT: Overruled.

MR. ELDER: Among other roles, Ms. Martinez is currently a small business owner. She’s a wife and a mother of three.

Back in 2019, Ms. Martinez wanted to expand her impact and explore a new career direction. She wanted to start a life-coaching business to help empower others to reach their full potential. She also wanted more flexible working conditions through self-employment for her family.

Now, the defendant in this case is Alameda County or the County of Alameda. It’s the second largest of the nine San Francisco Bay Area counties. According to the U.S. census, the county serves over 1.6 million residents, many of whom have disabilities.

Some of the services provided by the county to its many residents are delivered through the County Clerk-Recorder’s Office, sometimes referred to as the C-R-O or the CRO.


This one-page form represents an important service that the County Clerk offers to small business owners like Ms. Martinez. This is a fictitious business name statement form or FBNS form. An FBNS is necessary for any business owner who wants to operate his or her business under a name different than the owner.

This form is important to small business owners because it allows them to check with the state to ensure that the name of the business that they want to use isn’t already in use and is permitted by the state’s rules.

This case is about the County of Alameda’s deliberate refusal to help blind people like Ms. Martinez who need to fill out this single-page paper form.

The rule of common sense suggests the government should help a blind person by writing the words that they speak down onto a simple paper form because the blind person can’t write on the form for themselves. This simple solution, it costs no money and it takes just a couple of minutes. It’s a one-page form.

Fortunately, in this case the rule of common sense aligns with federal law.

Next slide.

I expect that you will hear that the Americans with Disabilities Act requires entities like the County to provide equal access to its programs and services for people with disabilities. Governments provide this equal access by offering common sense, reasonable assistance.

I expect that you will also hear that the ADA requires the County to provide what are referred to as an auxiliary aid or service when those services are needed to enable a person with a disability to participate in a government program.

If a blind person can’t read or write on a paper form, the government should provide reasonable commonsense assistance to help them write their information on their form.

You will hear evidence that providing transcriber service onto a paper form can be a simple and reasonable auxiliary service. A transcriber is someone who simply just listens to the blind person and writes down the words that they speak onto the paper form. The transcriber can then read it back spelling any words to ensure that it was written down correctly.

The transcriber isn’t making any decisions about what information should be on the form. The person with the disability tells the transcriber what to write, and then they do it.

Now, the County wouldn’t need to provide transcriber services for everyone. Just blind people like Ms. Martinez who need this auxiliary service because it’s the only way they can get equal access to file paper forms over the counter for same-day service when they go into the physical office at the Clerk’s facility.

That’s what “auxiliary” means. Doing helpful things that people with disabilities need but that most other people without disabilities don’t require, and that guarantee of right to assistance is what we’re here to talk about today.


March 29th, 2019. This is an important date in this case. Something significant happened to Ms. Martinez on this date.

Around this time, Ms. Martinez had learned about the FBNS filing requirement and she had gone online to research the FBNS form. She had found the instructions for the FBNS form on the County Clerk’s website. She then downloaded a PDF version of the FBNS form to her computer. She then attempted to fill it out with her computer.

Now, because Ms. Martinez is blind, she uses special screen-reader software to use a computer without being able to see what is on the screen. Unfortunately, because there was a problem with the way the County had designed the PDF form, Ms. Martinez couldn’t finish the form on her own. She had to ask her husband to help her finish completing it.

After it was completed, she printed it out and then planned her trip to visit the Oakland facility. The Clerk-Recorder’s Office is in Oakland near the Lake Merritt BART station.

Now, there is a mailing option that Ms. Martinez was aware of at that time. Ms. Martinez did not want to use the mail for two reasons. First, she wanted to be 100 percent sure that her form had been filled out correctly. She learned that processing by mail took about a month round trip. She didn’t want to wait that long only to find out that she had made a mistake.

Second, Ms. Martinez wanted to pay by credit card, which is not an available payment method via the mail. Only paper checks are available when you pay — when you mail in your form, and Ms. Martinez doesn’t typically use paper checks.

On that March 29th, Ms. Martinez departed for the Oakland facility. She was expecting that day to file her FBNS form, pay her filing fee at the counter, and then leave with her FBNS documentation ready for business that day.

She had made sure she had everything she needed that day to file her papers. She had her Articles of Incorporation that show who the owner of the business is. She had a government ID to prove that she, in fact, was the owner of the business and her name matches the name on the Articles of Incorporation.

She took BART to the Oakland office. She checked in at the counter. She received a number. She then waited for her number to be called. When it was called, she approached the counter to file her documents. A County employee looked at her FBNS form and then pointed out that Ms. Martinez’s form had two errors.


Ms. Martinez had made two mistakes on her form. Now, there’s something you need to know about the benefits of going down to file your form in the Clerk-Recorder’s in-person office.

County employees will testify that customers frequently need to correct their FBNS forms, and the County regularly advises its customers on how to fix their forms. Customers then often just step aside, grab a pen, fix the form right there at the counter, and then move on with life. Getting this realtime feedback is one of the benefits of filing the FBNS over the counter at the Oakland facility.

If you file the form by mail, you won’t know about any mistakes for several weeks when the County sends you what could be referred to as a Go Back Letter. The Go Back Letter rejects the filing and explains the problems with your form, at which point you, as the business owner, you would need to mail the form back in with the corrections or you need to rush down to the Clerk’s Office in person to file it over the counter to prevent any further delay in proper business formation.

Ms. Martinez asked the County staff to help her make the needed corrections on the form because her blindness made it impossible for her to see the print on this form, use a pen, and then legibly make the corrections for herself. She asked the County clerks to simply put their pens on this one-page form and make two small corrections as she directed them what to write. On that day she just needed to check a box that said “LLC” instead of “Individual” and write her company’s name on the space provided instead of where she had written her name.

Making these two small corrections, that would have enabled her to file her form over the counter on that same day. Now, instead of complying with this commonsense request, the County said, no, they won’t help her and they still say that today. The County will not let its clerks help. They refuse to let a clerk act as a transcriber for blind people. The County refuses to provide this auxiliary service even though many other government offices do it as a matter of course.


You will hear that if Ms. Martinez were to walk several blocks out of this building and go into the California state courts —

MR. GILBERT: Objection, Your Honor. Relevance. 403.

THE COURT: Overruled.

MR. ELDER: You would hear that if Ms. Martinez were to walk out of this courtroom right now, walk a few blocks down and go into the California state courts for San Francisco, the state court clerks right in there, they would act as a transcriber to enable a blind person to fill out a paper legal form for filing with the court.

If Ms. Martinez were then to walk a few more blocks and go to the Muni transit station, the clerks there at Muni, they would act as a transcriber to help Ms. Martinez fill out paperwork to get a Clipper card.

Ms. Martinez could then walk a few more blocks down the road to the DMV, the California Department of Motor Vehicles. She has received this type of transcriber service to fill paper forms out at the DMV when she has had to renew her state ID every several years.

She’s received similar transcriber service at the Social Security Office and even at the Union City government when she had to fill a similar fictitious business document with the city for her life-coaching business. Union City was willing to be a transcriber for Ms. Martinez.

Now, Ms. Martinez on that day, she explained to the County clerks that she had familiarity with blind people filling out legal forms in government offices. This has not been a problem in the past. Ms. Martinez has regularly relied on a transcriber when situations required submitting information on a paper form.

Ms. Martinez fully expected to receive this same service when visiting the County Clerk’s Office. Ms. Martinez tried in vain to convey this to the County clerks and then asked for a supervisor when her explanation was ignored.

Ms. Martinez is knocking at the County’s door. She’s giving notice that there is a problem. She needs equal access to same day service at the counter, but the County won’t open the door, follow common sense, or write on her paper form.


You will hear some partial audio recordings of her March 29th, 2019, visit. Ms. Martinez often uses her phone to record when people are speaking to her. This is done in lieu of taking written notes. Blind people often use voice recordings or audio memos as ways of storing information that they need to later recall.

You will hear three recordings. In the second recording, that Ms. Martinez asked permission to record and a County employee declined permission for the recording. Don’t be distracted by this. The recording was an accident. Ms. Martinez thought that she had, in fact, turned off her phone and set it down.

You will hear the click, click when she was trying to turn off the recording. She only discovered after the recording had already been made that she hadn’t been successful.

Now, the County wants you to hear this evidence. Ms. Martinez wants you to hear this evidence. The parties agree that you, the jury, should have all of the evidence as to what was said that day.


Eventually, Ms. Martinez escalated her request to the County clerk supervisor. She again repeated her request that the County provide a transcriber as an auxiliary aid or service under the ADA. The County refused. Instead, the County stated that the only help the County could provide was a paper Go Back Letter and a return envelope.

This Go Back Letter is a service that the County provides to anyone who mails in an FBNS form that has errors. Providing a Go Back Letter is not an auxiliary service for people with disabilities. The Go Back Letter is a standard service that the County provides to everyone.

Ms. Martinez explained that this wasn’t equal opportunity. She still needs someone else to help her fill out the form at home, and this would delay her filing.

In one last attempt that day, Ms. Martinez tried to escalate her request to a third level of supervision. She repeated for a third time her request for a transcriber as an auxiliary aid or service under the ADA.

Ms. Martinez put the County on notice of the consequences to its decision. She explained to the County staff that the failure to provide a transcriber was denying her an equal opportunity as compared to the sighted customers all around her who were just getting assistance, filling out their forms, making corrections, and walking out of the Clerk’s Office that same day with their businesses ready to go.

Again, Ms. Martinez, she’s knocking at the County’s door. She’s giving notice that there is a problem. She needs equal access to same day service at the counter, but the County won’t open the door, follow common sense, or write on her paper form.


Ms. Martinez ultimately left the County Clerk’s Office that day without being able to file her FBNS form. She walked away with her paper Go Back Letter and her envelope, which weren’t even in accessible formats that she could actually read, and then she made her way home.

Ms. Martinez left the Clerk’s Office that day feeling humiliated, upset, and defeated. You will hear from her in her own words what this felt like.

So some of you may be asking: Well, why doesn’t the County want its clerks to write on a form? What’s the big deal? Why can’t they just help a blind person?

Well, the County didn’t even have a written policy prohibiting transcriber service. The County’s representative, Matt Yankee, he’ll confirm that this refusal wasn’t even contained in a written policy. The County didn’t have a good reason for continuing to refuse Ms. Martinez’s request, but it now does have some bad excuses.


You may hear the County say that it has concerns about a state law which makes a clerk liable who alters, changes, obliterates, or inserts any new matter into the records deposited in the Recorder’s Office unless the recorder is correcting an indexing error.

Now this is a good law. It’s designed to protect the integrity of public records and ensure that court clerks can’t cause a public record to be changed once it’s deposited into the official records. Everyone agrees accuracy is paramount for government records; but I must tell you that term “deposited,” it’s an important term.

On March 29th, 2019, Ms. Martinez had not yet deposited her FBNS form. Handing a paper form to the clerks for them to look at —

MR. GILBERT: Objection, Your Honor. Argument.

THE COURT: Overruled.

MR. ELDER: — isn’t depositing it. No form is deposited it until after the clerk has accepted it for filing and the filing fee has been paid.

Ms. Martinez never got that far. She was not allowed to make payments, and they had not accepted her form. It had not been deposited.

The fact that clerks hand back forms that are incorrectly filled out for customers to then make corrections and then the clerks accept the altered versions of those corrected forms, that shows how this record hasn’t yet been deposited. You will hear more about why this law doesn’t apply in this particular situation.


You may also hear some County remarks about the FBNS being signed under penalty of perjury. Perjury is the crime of declaring that information on a document is true when it is not true. The person who puts their name on the document under penalty of perjury, they’re saying that they acknowledge that lying on the form is a crime.

The County employees, they could never be accused of perjury. Their names are not what’s being put on the form. Ms. Martinez’s name is going on the form. Ms. Martinez is the only one who carries the responsibility of making sure that the information on her form is truthful.

The County may also say that it’s concerned about being accused of making mistakes. It might say that it would really like to provide service to people with disabilities because it cares about access, but it just can’t do this in this case because its hands are tied.

Ms. Martinez will present evidence and ask you to decide that providing this simple auxiliary service of just putting a pen on this one-page form is required under both federal and state law, and the County’s theoretical concerns about accusations, liability, that doesn’t excuse it from following federal and California laws on equal access. If you, the jury, tell them that they’re violating the law, they have to do it.


You may hear the defendants argue that there should be no violation of the ADA in this case because Ms. Martinez received effective communication from the County staff. She received verbal information about what was wrong with her form. Now, for any human interaction, in order for communication to work, it needs to flow in both directions.

While the County did communicate the problems with Ms. Martinez’s form verbally to her, the County did not let Ms. Martinez communicate back to the County with the corrected information.

Ms. Martinez was sitting there at the counter, she was verbally telling the County what correct information should be on her form, but the County refused to receive that information and it wouldn’t put her information on the paper.

You may also hear the County say that they met their obligation to effectively communicate under the ADA because Ms. Martinez was able to use the information in the County’s Go Back Letter, fill out a new form at home with help, and then file her FBNS form on May 31st, 2019, about 60 days later.

This wasn’t equal. Ms. Martinez had to pay out of pocket for Emily Grim to help prepare her replacement form and for Ms. Grim to drive Ms. Martinez back down to the Clerk-Recorder’s Office in Oakland.

Ms. Martinez didn’t use the mail on this second attempt for the same reasons she didn’t use the mail the first time. Ms. Martinez will testify a little bit more about the reasons why she took some time before returning to the Clerk’s Office in person.


So on May 31st, 2019, with Emily Grim driving, Ms. Martinez returned back to Oakland to file her form. A clerk employee took her correctly completed form and entered the information into the computer system.

The clerk then rotated the computer monitor around towards Ms. Martinez and asked her to verify if everything was typed in correctly. Ms. Martinez said to the clerk that she was blind, and then asked the clerk if they would simply read it to her so she could understand what had been put onto the screen. The clerk interrupted her and said, “I know you’re blind.” And then she turned the monitor towards Ms. Martinez’s driver, Emily Grim, and asked Ms. Grim to confirm that everything was correct on the screen.

Because the clerk wouldn’t read the information on the screen to Ms. Martinez, Emily Grim did confirm that the information was correct, and then that day Ms. Martinez was finally able to file her FBNS form with Ms. Grim’s assistance.

The County clerks were again refusing to help. They wouldn’t even read to her this time.


Unfortunately, the County is refusing to provide transcriber service even today. They’ve refused to sit down or collaborate with Ms. Martinez to find a simple solution to a simple problem. Instead, the County just refuses to change.

You will hear Ms. Martinez thought long and hard about whether she wanted to file this lawsuit. Ultimately, Ms. Martinez decided that she didn’t want other blind people to experience what she experienced. She wanted blind people to be able to go into the Clerk-Recorder’s Office and have equal opportunity for same day service.

Ms. Martinez faced a dilemma. She could have walked away, but she would have been walking away from something that she knew was wrong and then some other blind person might come along and they would have the same inferior experience that she had. That’s why we’re asking you, the jury, to answer the question. Tell the County that it has violated the ADA. Tell it to open the door and provide transcriber service to blind people.

Now, I need to briefly address the topic of monetary damages in this case. Money damages are not the focus of what you’re being asked to decide in this case. You’re being asked to find a violation of the ADA so that this indifference will stop. A part of that accountability is considering evidence of monetary damages.

In our legal system, financial compensation for harm is a jpart of how we hold those who violate the law fully accountable, and it’s the only way to provide a full measure of justice for those who are harmed by the violations.


THE CLERK: You have a minute and 22 seconds, Mr. Elder.

MR. ELDER: You will hear some evidence of the monetary damages that the County has cost Ms. Martinez. First, she had to pay some money out of her pocket to pay for a driver and assistant to prepare the FBNS form, $1.25 per hour.

You’ll also hear some evidence on her second trip that she lost some time.

Is that the right time?

THE COURT: No. You’ve got about 15 minutes left.

MR. ELDER: Oh, okay.

Her time is worth, we estimate, about $35 per hour based on what she earns in her coaching.

Third, she has had to spend a lot of time and aggravation litigating this case, knocking on the County’s door for the last five years, almost to the day this week.

Finally, she also experienced a degree of emotional distress for the way the County treated her on March 29th, 2019.


Now, there were some things that happened after this lawsuit was filed that you really need to know about. In the midst of the litigation, something happened in December of 2022. The County introduced a computer terminal or sometimes referred to as a kiosk, but essentially a computer. The computer had a PDF copy of the FBNS and it also had an installation of a screen reader.

Now, the County did not consult Ms. Martinez about this approach. The County’s counsel just informed her that it was happening. In reaction, Ms. Martinez, she reached out to the blindness community to see if any blind business owners who had need to file the FBNS forms could try these new computers with the PDF FBNS forms and then report their findings.

We identified two such blind business owners, Lucy Greco and Marco Salsiccia. Both planned to go to the Clerk-Recorder’s Office for their own business needs and try out the computer systems, but they never got to try out the computer technology. Why not? The answer may surprise you.

When Greco and Salsiccia entered the Clerk-Recorder’s Office on their respective visits, they each approached the check-in counter and asked to fill out an FBNS. Were they directed to the new computers? No. The clerks there simply provided transcriber service and filled out their forms for them right there at the check-in counter using the paper forms.


Some of the County’s own frontline clerks, the ones who actually deal with customers and encounter blind people, they thought it was appropriate to provide transcriber service to blind people who needed to fill out the FBNS form.

It took — for Salsiccia and Greco, it took less than five minutes for each of them. The whole process was quick, it was easy, and there were absolutely no problems.

We don’t know who those County employees were or what happened to them, but we do know that later in 2023 the County published finally a written policy and they circulated a memorandum explaining to the clerks that the clerks are not allowed to do what these clerks in 2022 had done for Ms. Greco and Mr. Salsiccia out of common sense.


I need to talk to you a little bit about the PDF FBNS forms. PDF is a portable document format. It’s often used on the computer. It’s a file format for documents.

Now, there’s some things you need to know about these PDF form because the County believes that one of the reasons it doesn’t need to provide transcriber service for blind people, because blind people can just fill out their own PDF forms.

We had our expert, Karen McCall, an expert in PDF usability for people with disabilities, we had her look at the usability of four versions of the FBNS PDF form, for versions that started in October of 2018 and then progressively moved forward as that form was revised over several years. These likely include the PDF forms that were used by Ms. Martinez, Ms. Greco, and Mr. Salsiccia.

By the way, Ms. Greco and Mr. Salsiccia before they had gone down to the office, they had tried to fill out the PDF forms online just like Ms. Martinez. However, the version of the PDF form in 2022 that the County had on its website, it had — it was completely unusable by blind people. So they couldn’t even partially fill it out in the way that Ms. Martinez had.

But all of the PDF forms, they all had significant flaws and design problems that prevented blind people from accurately completing the forms.


Something else happened in May of 2023. Again, without any input from Ms. Martinez or the blindness community, you will hear the County developed some high-tech solutions to avoid providing transcriber service. This is called the Web Wizard. Unfortunately, this new Wizard system, it doesn’t work for blind people.

Next slide.

We retained an expert in assistive technology. His name is Steve Clark. He’s been evaluating and serving the computer needs of blind people in the Bay Area for decades. We asked him to take a look at the County’s new Web Wizard form, which is delivered in a browser. He ultimately concluded that the Web Wizard in its format, it could not independently be completed by the average blind person who depends on screen reader technology.

Mr. Clark, who is an expert in assistive technology and the process of making forms usable by blind people, he will state that providing transcriber services to fill out a paper FBNS form at the check-in desk, that would be much faster and less complex and confusing for a blind person than the process that the County’s constructed.

The computer kiosk that the County has set up, it’s not in the main lobby where patrons first check in, get their forms, and queue numbers. Instead, a blind person in order to use the computer system with the Wizard on it, they would need to be escorted to a room on the other side of the building.

The amount of time it would take to escort the blind person to the other side of the building and then get this special computer logged in and get the JAWS screen reader booted up, get the audio working, get the headphones plugged in, all of that time is longer than it would take to just fill out the form with a transcriber at the check-in counter.

So no matter which version of the FBNS form you’re looking at, whether it was the PDF versions that Ms. McCall analyzed or the Web Wizard version reviewed by Mr. Clark, all of them had design flaws making it difficult or impossible for the blind person to fill out the FBNS form on their own with a screen reader. And even today you will hear that the County hasn’t fixed these problems.

Defendant is offering no technical evidence to challenge our expert analysis. The County’s technology, it just wasn’t designed with blind people at the table.

Now, if the County had sat down and collaborated with Ms. Martinez and the blindness community, they might have gotten this right, but the County didn’t do that and now you, the jury, will be asked to tell them to do better.


Now, there’s a possibility you may hear from another one of our experts in this case, attorney Eve Hill. Ms. Hill is an expert in this specific area of providing government access and the communication needs of blind people. She previously worked as a high-level senior United States presidential appointee at the federal civil rights agency charged with developing the ADA rules and guidance for County governments. Ms. Hill also served as an attorney in the District of Columbia local government. She was in charge of making sure the District of Columbia complied with its ADA obligations.

Now, depending on what the County does in its own case and whether we have time to put on a rebuttal, you may hear from Ms. Hill and she might say and testify that a —

MR. GILBERT: Objection, Your Honor. Argument.

THE COURT: I’m going to sustain based on my in limine

MR. ELDER: Okay.

Next slide.

The FBNS form is a simple form with a simple problem for blind people. Using a transcriber to fill out this one-page government form, it’s a simple solution. The County passed over the simple solution and has ignored Ms. Martinez’s request. Instead, the County has unilaterally developed a complex method on the computer system. Unfortunately, that complex solution hasn’t proven to be usable for blind people.

The County can have its computer system, but they should also be willing to help fill out paper forms for blind people who can’t use that computer system.

You’re now about to hear from the defendant. I encourage you to listen carefully to their explanation for the reasons for their conduct. Those reasons unfortunately, if you listen carefully and pay attention to the record, they don’t hold up in law or facts.

Apparently the County won’t take this simple step of providing transcriber service for blind people unless you, the jury, first find that the County is in violation of the ADA.

We thank you for your time, and I’m glad we are finally here today with you to get this simple problem with this simple fix resolved once and for all for all blind people. We will ask you to find for the plaintiff, Lisamaria Martinez, on all of her claims based on your careful consideration of all the evidence we present.

Thank you for your time.

THE COURT: Thank you, Counsel.