The biggest expense is lawyers’ fees. Fees can range anywhere from a few thousand dollars to hundreds of thousands, depending upon how much work is involved and how long the case lasts (lawyers usually charge an hourly rate). In addition to lawyers’ fees, you typically have to pay other costs, such as filing fees, copies of deposition transcripts, expert witness fees, and photocopying of documents to be filed in court.
You may be able to get a lawyer to take your case pro bono (for free). Contact the local and state bar associations; they sometimes have lists of lawyers who are willing to do pro bono work. Also contact such organizations as the National Lawyers Guild and the American Civil Liberties Union.
You may also be able to get a lawyer to take your case for a contingency fee (she or he is paid lawyers’ fees only if you win the case). Some lawyers are willing to do this because the fees are paid to the prevailing party by law in some types of cases, civil rights cases, for example. It’s a risk, but some lawyers are willing to take it to litigate these cases. Even so, you may need some resources: The lawyer may charge you a consultation fee to review your case before they agree to take it or ask you to advance some of their costs.
As mentioned previously, contact the local and state bar associations. Ask local organizations that work on your issue for referrals. You can also search attorney directories by specialty area online or at your local library; one is Martindale-Hubbell (http://www.martindale.com). Litigation can take a lot of lawyers’ time and resources; it’s not always easy to find a lawyer willing to take a case. It can also be challenging to find one with the knowledge and experience to handle cases effectively. Be persistent.
It’s hard to say. Litigation can take several months to several years. It usually depends on the strength of your case, the political and public pressure to settle, the resolve of your opposition, and the likelihood of appeals. One thing is certain: it usually takes longer than other strategies. That should figure into your calculation about whether to proceed with litigation.
People have different views about when to resort to litigation. Some say anytime you can; others say only after you have failed with less confrontational approaches. The answer is more likely something that takes account of the unique mix of circumstances at hand. If your legislation dies, you can always go back next year. If you lose litigation, you may create bad legal precedents that damage or even eliminate the prospects for future reform.
Should you pursue a litigation
strategy?
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In his book, The Activist’s Handbook: A Primer, Randy Shaw advises activist lawyers and their constituency groups to evaluate a checklist of factors before initiating a lawsuit:
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Striking the right balance in the lawyer-client relationship; keeping community members engaged throughout the process; and, once you have a court order or an agreement, being vigilant about implementation.
Tension between organizers and lawyers: organizers and lawyers often have different training, goals, and ideologies that can clash at various points in the litigation. In some ways, it’s unavoidable, but acknowledging it up front can minimize the negative effects on the overall effort. More on this in Reconciling litigation with other strategies.
Maintaining confidentiality. Do not divulge confidential information provided to you during a lawsuit. Lawsuits are different this way. It’s easy to forget, especially when talking with the media. If you are not sure what is and is not public information, ask your lawyer first.
Once lawyers become involved and you are into court, the process can get away from you. If you are thinking about using litigation proactively—as opposed to reactively—take time to get your bearings before you engage lawyers and start the legal process. Develop a vision for what you want it to be and how you want it to relate to your community. Then identify the model policies and practices that will get you there (see Getting the Facts: Taking Action with Information). This information can put you in a better position to make informed decisions about what remedies to pursue through litigation, specific provisions to include in a consent decree, and when and to what extent to compromise.