Chapter 1: Preparing for Litigation
Litigation can be a powerful tool for solving problems for clients. It can also be expensive, protracted and, ultimately, unsuccessful. Affirmative litigation may be one option, while individual judicial review of agency decisions may provide an alternate route for addressing problems, each with its own risks and strengths. Other tools, such as legislative and administrative advocacy (both individual appeals and rule-making procedures), community education, direct action and use of the media, should always be considered along with litigation options. Before filing suit, the lawyer must first determine that a lawsuit is the best strategy, or one of several strategies, for solving the particular problem or attaining a specific goal. The purpose of this MANUAL, the Documentary Supplement to this MANUAL featuring annotated litigation documents in Lightfoot v. District of Columbia, and the associated chart listing useful cases in the Poverty Law Library found at www.povertylaw.org, is to assist legal aid lawyers in assessing and exercising the power of litigation most effectively./1/
I. Introduction
Identifying the client’s goals and analyzing how to achieve them involves a strategic planning process. Which of many planning models will appeal to you will depend on your style and the culture of your office. Whether you choose to use an explicit strategic planning process or not, you will need to answer the following basic questions before you start:
- What are the client’s goals?
- Who or what forums have the power and resources to provide what is desired?
- What will cause the person or entities to do what needs to be done?
- How will you achieve your client’s goals?
- What resources will be required?
- When do you need to get results?
- How long will alternative methods for achieving the client’s goals take?
- What are the benefits and risks involved in potential strategies and forums?
- How will you know when you have succeeded?
Only when these questions have been carefully considered and provisionally answered can you be confident that you are providing the best advocacy for your client. If, based on your planning assessment, litigation is a viable strategy, additional and somewhat more technical questions must be asked. Many of these questions will be addressed later in this chapter:
- What are the capacities and limitations of your firm or organization?
- Who will the client be?
- What will your claims be?
- On what law will you rely?
- What specific claims for relief will you make?
- In what forum will the suit be filed?
- How will the lawsuit be staffed and financed?
The amount of time that you devote to this pre-litigation planning stage will depend on the circumstances. If the client is facing immediate eviction, for example, you may very quickly determine that the client needs emergency relief and leave aside, for the moment, any systemic issues presented. Other cases might involve lengthy assessment and advocacy several weeks or months after the client retains you. You and your client’s emerging sense of the best advocacy strategies may also drive the planning, the order in which strategy steps are implemented, their success or failure, and the amount of time needed to plan and implement the strategies. For instance, a community group recently wanted to address the inadequate education that the city school district was providing to its large number of African American and Latino students. The legal services office retained spent over a year planning its strategy for this case. The attorneys created a coalition that was dedicated to the school problem. That coalition ultimately became a plaintiff, created a funding mechanism, raised substantial funds for the litigation, conducted legal research, devised a media campaign, investigated the facts, and debated the various possible legal claims and strategies.
In another case, attorneys worked closely with local disability rights groups to get adequate, timely transportation services. The grassroots activists and community members planned the overall course of action, which included direct action and civil disobedience, negotiations and meetings with the transit authority, media coverage, public hearings, and eventually litigation. Although litigation was always a critical part of the plan, the community groups working on the issue chose other approaches first for tactical reasons.
1. References to the Lightfoot case are to the annotated litigation documents and judicial opinions in the Documentary Supplement. The Sargent Shriver National Center on Poverty Law maintains the Poverty Law Library, a brief bank of case documents available at the center’s website www.povertylaw.org. Clearinghouse Review: Journal of Poverty Law and Policy, published by the Shriver Center, is available to subscribers at www.povertylaw.org.