Charting Your Course 

• Assess your legal options
• Integrate litigation with other strategies
• Reconcile litigation with other strategies
• Strike the right balance in the lawyer-client relationship
• Keep community members engaged
• Negotiate a settlement
• Monitor implementation

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?”

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.