Ten Tips for Selecting and Filing Affirmative Litigation
- Reserve Time for Affirmative Litigation.
Legal services attorneys have many draws on their time. Affirmative litigation can and should be in a legal service’s attorney’s toolkit because a single, well-selected case, whether it is filed as an individual case or a class action, can have significant impact. Reserving time to detect and address problematic patterns is a key aspect of filing affirmative litigation.
- Foster an Environment Conducive to Litigation, and Allocate the Necessary Resources.
Legal services attorneys do systemic advocacy that does not involve litigation, including community lawyering, community economic development, policy advocacy, and drafting publications. All of these types of advocacy should be valued, as should affirmative litigation. Strategic advocacy planning should include litigation, and should allocate resources for litigation costs, such as experts.
- Be Speedy.
Choose your cases carefully, but don’t let perfect be the enemy of getting things done. Make an informed decision, weighing the risks of litigation against the potential benefit. Similarly, when you file, be prepared to pursue your case vigorously and quickly, including, as appropriate, affirmative motion practice, motion for class certification, or carefully thought out discovery to establish an initial win and increase the likelihood of quickly winning or settling the case. Also anticipate potential motions to dismiss, etc., so you can quickly respond if necessary.
- Begin with the End in Mind (as Steven Covey says).
One of the first things you should do when you are considering litigation is to plan for the remedy. If you can articulate a clear violation of the law AND craft a clear, simple, easy-to follow remedy, then you almost certainly have a good case. Try writing a final order that gives you what you want. If you can’t get there, you might need to consider other possible methods of advocacy.
- Listen to Colleagues Who Are Skilled at Articulating Arguments That the Defendant Might Make.
In litigation, more than in some other types of advocacy, the ability to anticipate opposing arguments is critical. No doubt it is more comfortable to surround yourself with colleagues who agree with you and see no downside to your litigation strategy. But litigation benefits greatly from discussion with colleagues who argue like the “bad guy.” This is true both before filing and while litigation is ongoing.
Legal services programs should find the right balance between supporting creative new litigation ideas and anticipating the response to litigation.
- Keep An Eye Out for Successful Cases and How You Can Expand on Them.
It is not always necessary to start from scratch. Keep an eye out for opportunities to extend and expand the impact of successful litigation. Some successful affirmative cases have a limited geographic impact (e.g., a case filed against a single county). You can consider filing a similar case in a new jurisdiction.
Participating in state and national conferences where you can hear about successful litigation strategies of other organizations can be an excellent way of coming up with ideas for new affirmative litigation.
- Consider Co-Counseling Opportunities.
If you have substantive expertise but no background in litigation, you can co-counsel with a private law firm. You can seek out other public interest organizations with expertise litigating a type of case. Co-counseling between organizations like Northwest Justice Projectand Columbia Legal Services can be an excellent way of drawing on different expertise. And sometimes a dual litigation strategy can be highly effectively, with different programs doing targeted coordinated advocacy from different angles, e.g., NJP files an individual case and CLS files a class action.
- Keep an Eye Out for Attorney Fees.
Attorney fees support us in doing the work we do, and they help send a message to the opposing party about its illegal conduct. It makes sense to prioritize cases that may raise attorney fees. Big affirmative cases in which we make big change can yield attorney fees during the enforcement process, providing funding to our programs and also (more importantly) ensuring that our expertise is considered in fashioning remedies and enforcing successful litigation.
- But Don’t Allow Attorney Fees to Limit Important Advocacy.
At the same time, legal services attorneys should not shy away from potentially far-reaching litigation that cannot yield attorney fees, such as a well-argued amicus curiae brief or a writ of mandate, which, in Washington, does not yield attorney fees. We want to help clients and make the world a better place, even if we cannot receive attorney fees.
- Keep Your Litigation Skills Sharp.
Attending hands-on litigation trainings, and litigating regularly, are the best way we know of to increase comfort with litigation and be an effective litigator.