Assessing
your legal options back
to top
You can become involved in litigation in a number of ways: you initiate
it; you encourage someone else to initiate it; someone else initiates it
on his or her own accord and you join that effort. In assessing your legal
options, always consult with a lawyer. Also consider:
- A series of individual cases
seeking compensation for victims. Often an individual or his or her
family files a civil action to recover damages. These cases sometimes
address specific
policies and can help to further your broader advocacy goals.
- Class actions. A class-action
is a lawsuit brought by a few people on behalf of themselves and many
others who are similarly situated. One advantage of a class action is
that it resolves
several, even hundreds, of individual cases by a single lawsuit. Another
advantage is that you may be more likely to get significant policy reforms.
- Persuading a federal or state
department to investigate and litigate a case relating to your issue.
Many departments have the authority to investigate and advocate on your
behalf
since their mission is usually to protect the public interest.
Integrating
litigation with other strategies back
to top
Litigation has both benefits and drawbacks. It is usually most effective
when integrated with other strategies.
In general, litigation does not:
- Empower community members or
promote community building. Litigation often takes the struggle out
of the community and puts it in the hands of lawyers and judges. It also
forces
community members to translate their experience into the narrow confines
of the law, which is often inadequate. In other forums, community members
can be the leading advocates. In litigation, they cannot be the ones
to
stand up in court; rather, they have to sit in the audience and hear
the lawyers speak for them. If community empowerment or community building
is
a goal, you need to find ways to increase community engagement in litigation
or look to other strategies to achieve those goals. More on this below
in Keeping community members engaged.
- Decide what is the best policy
or solution. Lawsuits can decide whether an action is legal or not
under existing law.
- Simply end with a court order.
Organizing and continuing to focus public attention on the problem
will help to ensure that defendants follow through and comply with the
court’s
decision.
Litigation is usually most effective when combined with:
- Research. Community members are
more likely to know what they want and how to get it through litigation
if they have enough information and an understanding of how similar problems
have been resolved in other places.
- Organizing. Whether it is exerting
pressure on public officials to file litigation or maintaining a public
spotlight on the implementation of a consent decree, organizing can help
to move litigation forward.
- Media. Ongoing media coverage
helps to create public pressure on public officials to intervene, settle,
or otherwise take action to correct the problem that led to litigation.
The filing of the complaint presents an important opportunity: Beyond
issuing
a news release announcing the lawsuit and perhaps hosting a news conference,
make sure the complaint itself contains detailed allegations and tells
the
story you want told. Reporters often quote directly from the complaint
when describing the lawsuit.
- Lobbying and
legislation. While
a lawsuit can focus on a specific problem or a set of problems, it often
takes broader legislative changes to bring about all of the changes needed.
For this reason, advocates sometimes pursue legislation at the same time
as litigation. The downside to pursuing a lawsuit and legislation at
the
same time is that some legislators may say, “They’re litigating.
Why should we consider legislation until we know what the court is going
to do?”
In November 1998, California voters passed
Proposition 1A authorizing $2.9 billion in state bonds for the construction
of new educational facilities for grades K-12. The state planned
to allocate these funds to schools on a first-come, first-served
basis. Because it often took several years for schools in urban areas
to acquire the necessary land, this policy put urban schools at a
disadvantage compared with schools in suburban areas.
In March 2000, lawyers for the Advancement Project (AP) filed a
lawsuit against state officials claiming that the first-come, first
served procedure was contrary to state law. The court agreed with
AP that when funds are scarce, the law requires the state to use
a priority ranking system to determine which schools receive funding
and ordered state officials to develop such a system. AP lawyers
spent several months meeting with legislators, school districts,
and other stakeholders to develop a priority ranking system that
would meet the needs of both urban and suburban schools.
As a result of this process, in April 2002, the state legislature
approved Assembly Bill 16, which authorized $25 billion in state
bonds for new school construction and modernization to be put on
the 2002 and 2004 ballots. AB 16 established two new construction
funds for K-12 schools: a first-come, first-served fund and the Critically
Overcrowded Schools Fund, which would reserve funds for overcrowded
districts that needed additional time to complete their funding applications.
Both funds were approved by voters, making billions of dollars available
to schools on a more equitable basis. |
Reconciling litigation with other strategies back
to top
Lawyers usually do not want anything happening outside the courtroom
to have a negative effect on what’s happening inside and they have their
own ideas about what will and will not have an effect. This can create tension
between them and organizers and community members who bring a different
experience to the litigation, belong to or are otherwise invested in the
affected communities, and have broader goals than winning the case at hand.
All of this can result in a different order of priorities from the lawyer’s.
Issues frequently arise around:
- Talking to the media. Some lawyers
insist that organizers and community members refrain from speaking
with the media for fear that they will damage the case or draw unwanted
attention
during settlement negotiations. However, as part of a longer-term strategy,
organizers and community members often want to maintain a public spotlight
on the problem as much and for as long as possible. This helps build
the
political and public will for change. Moreover, if advocates are not
out framing the story in the media, it will be framed for them. That
can result
in stories that brush away concerns that there is a serious problem
that needs to be addressed. More on this in Seizing
the Moment: Urgent, Unified
Community Response and Media
Advocacy: Spreading the Word and Building Public Will.
Explain to your lawyer the reasons you want
to pursue a media strategy and ask him or her to articulate precisely
how it will harm your case.
- Staging protests. Lawyers are
also wary of protests and other public actions. Even when not outright
opposing them, they sometimes express strong views about the tone and
wording on
signs and in chants. But again, for long-term movement building, protests
and other public actions are good vehicles to organize and coalesce around,
and to maintain community engagement for the duration of the lawsuit.
A
first step, however, is for lawyers, organizers, and community members
to acknowledge and respect the different tools each may need to achieve
their
desired result and the different roles they may play
- Settling the case. This typically
arises when there are damages at stake in addition to systemic reform.
Lawyers who take cases on contingency have an incentive to settle when
they feel
they have negotiated a reasonable settlement amount, because the longer
the case goes on, the more resources they have to expend. This may conflict
with systemic reform goals. The issue is further complicated when litigation
involves individual families who are divided on the appropriate course
of action or whose financial hardships make quick monetary settlements
attractive.
These issues should
be
discussed and decisions made up front to avoid unnecessary tensions
later.
Striking
the right balance in the lawyer-client relationship back
to top
Because of the issues inherent in litigation that were just discussed—in
particular that litigation usually fails to promote community empowerment
and community building, that it is most effective when integrated with other
strategies, and that lawyers are often wary of activity outside the courtroom—it
is worth taking the time to find the right lawyer and define roles and
expectations
sooner rather than later.
Some people resist playing a role
in litigation; rather, they want the lawyer to simply get it done. Others
want to be more hands on. The more involved you are, the more likely you
are to have an outcome that reflects community needs and desires. In either
case, consider:
- What are the qualities you want
in a lawyer? A take-charge person? Someone who tells you something
after it is completed? Who signs up for a partnership? Does not make
decisions
for you that you can make yourself? Makes decisions that invest you
with more power than him or her? Includes you in important decisions?
Allows
you to define what is important to you? Understands you are the client?
- What does the lawyer bring to
the table? What do you? Do not be intimidated by the law or the lawyer:
you both bring something of value to the table. How do you leverage all
the tactical expertise around the table? Is there anyone in your group
who
has experience with lawyers or litigation?
- How do you expect your lawyer
to interact with you? How does she or he expect you to interact? What
are your respective roles? Responsibilities? What is the role of organizing
in litigation? What strategy will you use with the media? Who will be
the
media spokespeople?
- What are your respective goals?
Winning the case? Achieving systemic reform? Building a movement?
- How will decisions be made? Does
it depend upon the type of decision?
- Are there any protocols you want
to follow? Your lawyer will not go to court without notifying you so
that you can decide whether you want to pack the courtroom with community
members.
Your lawyer is your spokesperson in court but not necessarily outside
of court. Does your lawyer report to one person or a group? How often?
Orally,
in writing, or both? Where will you hold meetings? Your lawyer’s
office? In the community or other familiar surroundings?
- How can you be more involved
in the litigation? Gathering information? Interviewing witnesses? Preparing
affidavits? Attending hearings? Organizing a news conference? Spurring
public
action?
- Who speaks to the media? Your
lawyer? Victims and their families? Community leaders? What can and
cannot be shared? Who speaks (first) at the news conference breaking
the story
about the lawsuit? After the court hearing? When you win? Lose? Whose
name is the contact on news releases?
- What information do you want
to receive? Copies of briefs? Dates hearings are scheduled? Discussions
with the other side?
- At what point are you willing
to settle? Who will participate in settlement discussions? Who will
speak for your side? Present proposals? Respond to questions? Offers
from the
other side?
- How will you achieve mutual accountability?
Possible long-term strategies: add lawyers to your staff so that accountability
is clear; develop and rely on a small cadre of lawyers whom you trust
and
with whom you share both short-term and long-term goals.
Keeping
community members engaged back
to top
The litigation process can be long; community members tire and move on to
other, more pressing issues. Find ways to keep people engaged over the long
haul. The longer the community stays involved, the more likely the outcomes
will reflect community needs and desires.
- Advise people of the long timeline
so they know what to expect.
- Identify activities in which
community members can directly participate: conducting research, planning
meetings, being a spokesperson, attending a protest, keeping people updated
about the progress of the litigation.
- Make decisions as a group. That
way when important ones must be made, the group will have to reconvene.
- Mark interim wins: favorable
media coverage, court motions granted, settlements offered, new victims
coming forward.
- Accept that you will sometimes
lose people.
Negotiating a settlement back
to top
Most cases are settled before trial because of the time and expense involved
in fully litigating the case and the risk of losing. Be prepared.
- Know exactly what you want, your
order of priorities, and your bottom line. Make sure you have agreement
on your side before you enter discussions with the other side.
- How will you identify the provisions
you want in an agreement? Through your research? Your lawyer’s?
One place to look is agreements in other jurisdictions. See the earlier
discussion,
Assessing your legal options.
- Make sure that all of the important
points are covered in an agreement. Always include a provision for
enforcing the agreement, whether it is a court-appointed monitor, binding
arbitration,
or a clause that allows you to go back to court if the agreement is
breached.
- How will settlement negotiations
be carried out? Who will participate? Who will speak? Respond to questions
or offers from the other side? How will you keep people at the table?
- Never be afraid to walk away
if you have not been offered anything meaningful.
Monitoring
implementation back to top
After the lawsuit is concluded,
monitor how the settlement or court order is being implemented.
- Stay involved and ready to mobilize.
- Keep the media engaged. The public
spotlight can help people stay focused on how much has been accomplished
and how much is yet to be done. Inform the media of milestones achieved,
subsequent problems, unnecessary and inappropriate delays.
