Bringing strategic litigation can be a lengthy, complicated process, and there will be many decisions to make along the way. This section will help you figure out how you find, select, and pay for a lawyer, how you and your lawyer will prove and support your case, and - once the case is over - how you will follow up on the result.
1. How do you find a lawyer?
First steps
As soon as you realise that you may want to bring strategic litigation, your first step should be to consult with a lawyer.
Because you might not be sure where exactly you would file your lawsuit and there will be many decisions to make, you may want to speak with both an international organisation that works in many different countries and a lawyer qualified to practise in your jurisdiction.
Once you know where you will file your case, you can make a more informed decision about where to look for a lawyer and what kind of lawyer could best handle your case.
Finding a lawyer
Once you have a general sense of the lawyer you are looking for, you will need to begin your search. Since there are likely quite a few lawyers to choose from, contacting a few of the groups suggested below may help to narrow down your search.
Lawyer networks: You may want to start by contacting any local or national lawyer networks in the jurisdiction, like a bar association or trade guild.
Legal aid organisations: Both government and non-government funded legal aid organisations and traditional legal service providers are run by lawyers knowledgeable in their field who may be able to provide you legal advice or services free of charge.
NGOs: NGOs frequently have in-house lawyers who might be willing and able to take your case or can refer you to an organisation or firm that more likely meets your needs.
Legal clinics: Some universities and law schools have legal clinic programs run by professors, staff lawyers, and law students, and may be similarly able to handle or refer your case.
Referral: Referral is very common in the legal field, and if a lawyer or organisation cannot help you, it is always worth asking if they could recommend someone who can.
For more information on how to get assistance from a legal professional, see our legal assistance toolkit.
To find out whether legal aid or pro bono services are available in your jurisdiction, see our access to justice for children project.
Retaining counsel
Fees: First and foremost, you should get a sense of how the lawyer, organisation, or firm will be charging you for legal services. Financing your case is discussed in more detail below, but here are a few things to think about:
- In some cases, you may be able to find pro bono representation for strategic litigation, meaning that your legal services will be provided free of charge. Even where this is the case, however, you should be sure to work out whether you will be expected to cover any other costs or expenses associated with the case, like court fees or travel expenses.
- Where you will be paying for legal services, you will need to figure out how you will be charged. Will you be paying by the hour, or a flat fee? Will you only pay if you win, or will you pay no matter what the outcome? How will you be billed?
Background and experience: Try to get a sense of the lawyer, firm, or organisation’s background and level of experience. Look for experience in general, in the jurisdictions and courts you could file your case in, and with similar cases, groups, or clients. You may also want to investigate whether the lawyers have any ties or contacts with NGOs or other potentially valuable connections.
- Involving children in strategic litigation can pose many unique and sensitive issues. If you hope to do this, you may wish to seek out lawyers or organisations who have experience with or specialise in working with children in the legal system.
Resources: You should ask potential lawyers how much time and how many resources they expect to have available to manage your case. Do they have adequate facilities and support staff? If not, would they be willing to accept outside help? In general it is also a good idea to get a feel for how closely the lawyers would manage the case and how open they would be to working with experts or other groups.
Personal philosophy: Although lawyers’ jobs require that they place their clients’ interests first, it may be important to you to find lawyers who are committed to or at the very least understand your cause. As you could be working together for years to come, seeing eye-to-eye on the central issues in your case can make things move along much more smoothly and efficiently.
2. How do you pay for your lawyer?
Financing your case. In many jurisdictions, legal fees can quickly become very expensive. In terms of strategic litigation, this may be even more true as novel ideas or never before seen claims can take large amounts of time to research and prepare for court. However, you may be able to work out arrangements for paying your lawyers only if your case succeeds or, even better, not paying your lawyers at all. There are many common ways of financing strategic litigation beyond traditional fee for service arrangements:
Pro bono: Lawyers in private practice may be willing to offer you their legal services for free. In some jurisdictions, the pro bono ethic is well-established and you may even have a choice of law firms to assist you in bringing your case. Many law firms look to NGOs or legal aid organisations to screen and refer cases, so you might contact relevant organisations in potential jurisdictions for your lawsuit to see if they have any partnerships or other referral mechanisms in place with local law firms or practitioners. Do be aware that even in pro bono relationships, you may still be expected to cover court costs or other expenses.
Legal aid: Although many traditional legal service organisations do not have the means to handle a large strategic litigation case, some legal aid providers may have divisions or sectors designed to promote lasting change and tackle complex litigation. These organisations may be willing to bring and manage your case free of charge.
Contingency or conditional fees: In some jurisdictions, it may be permissible to work out a contingency fee or conditional fee arrangement. In a contingency fee arrangement, your lawyers would not charge upfront or hourly for their services; instead, their payment would be contingent on their success. If the lawyers win your case, they will get to keep a percentage of the plaintiffs’ damages, that is, the amount of money the judge, tribunal or jury awards the plaintiffs to compensate them for the harm they suffered at the hands of the defendants. If the lawyers lose, they may get nothing. In a conditional fee arrangement, legal fees may be increased or reduced depending on the amount of damages you receive, but may not disappear entirely.
Since this approach often requires that your claim seek a substantial sum of money, it may not make sense to request a contingency or conditional fee arrangement when you are asking the court for a more novel remedy.
Insurance: You may be able to obtain legal expenses insurance for your case, which would pay for at least a percentage of your legal costs if you lost. However, this kind of insurance can be very expensive, and if your case is risky or very novel, it may simply be unavailable.
3. How do you prove your case?
Beginning your investigation
Thoroughly investigating your case is critical to figuring out the best strategy for success in the courtroom. As a first step, you should gather all publicly available documents and data relevant to your case. This includes newspaper, journal and magazine articles; media and academic reports; and statistics, studies or other scientific information.
Once you have a good grasp on this background information, you should think about going out into the community to speak with people who have actual knowledge or experience with the events and occurrences that underlie your legal claim. Where it would not endanger the plaintiffs or harm your case, you should consider talking with plaintiffs’ friends, family, and colleagues; government officials or authorities; other advocates or lawyers in the area; and anyone else who may have witnessed or known about things that happened in your case. Remember, though, that you can’t learn everything, and you will have a chance to find out more through official channels once your case has been filed.
Confidentiality: As always, all communications between lawyers and potential or actual clients must be held in the strictest confidence. Bear this in mind when you are investigating your case as you do not want to place the plaintiffs or your case in jeopardy, and should never reveal information about your case or client without consulting your lawyer and getting the plaintiff’s permission. Sometimes, even letting other people know that you are planning to file a lawsuit may violate confidentiality.
Keeping records: It is very important to create a paper trail of your investigation. Keep copies of all published or written information you find. Take notes and pictures during any interviews or field visits you conduct, and if possible, ask for permission to record them. Be sure to account for every piece of information you learn during your investigation in some way. The more organised you are in how you gather and store your information, the easier it will be to find and use it throughout your case.
Children and investigations: You should be even more careful when investigating cases that involve children. In particular, speaking with a child plaintiff’s parents, teachers, or other authority figures may raise very sensitive issues. To avoid placing a child in harm's way or damaging family or school relationships, you should fully explain to child plaintiffs who the people you would like to meet with are and what you hope to learn before you begin your investigation.
Filing
When you have learnt enough information in your investigation to understand and explain your claims, you might then consider initiating legal proceedings. The procedure for filing a lawsuit is determined by the laws, regulations, and practice in the jurisdiction in which you are bringing your case, but will likely involve providing the court with a document that sets out your claims. Before you file, be sure to research all of the relevant rules – some systems may require very formal and detailed documents, while others need only a letter signed by the plaintiffs.
Serving: After you have filed your case, it is likely that you will need to serve the defendants with your papers, which usually requires a formal delivery process to let the defendants know that you are suing them. This might be done by providing them with a copy of your filing, either directly or through the court. If you are filing in a jurisdiction different from the one in which the defendant’s actions or violations occurred, it may be difficult to serve the defendant with your papers in line with the rules of the court. If you cannot successfully serve a defendant, it is possible that you will not be able to proceed with your lawsuit in that jurisdiction. If that is the case, you may need to file your suit either where the violations occurred or where the defendant is currently located.
Fact-finding
Most jurisdictions provide for a fact-finding or discovery period when you first file your case. During this period, you have an opportunity to get documents and information from your adversaries, and they likewise have an opportunity to get documents and information from you. As you find out more information from your opponents, you should continue investigating on the ground with more specific goals and questions to help your case further as it develops.
Proof
In order for the court to make its decision, you will need to submit evidence to prove your case. As discussed above, the rules of evidence vary widely across jurisdictions, and you should thoroughly understand them before your investigation is underway. With these rules in mind, you will want to bring the court’s attention to many of the relevant things that you have learnt during your investigation.
Witnesses: People who know, saw, or otherwise experienced things that are relevant to your case may be able to serve as witnesses. Typically, you would arrange for a witness to come to court where your lawyers, the defendants’ lawyers, and the judge would all have an opportunity to ask questions. It may also be possible to meet and interview a witness on record outside the courtroom if the other parties in the case agree to this arrangement. Think about who could serve as a witness in your case and begin meeting with those people early on in the process – remember that you may very well want to ask the plaintiffs and defendants in your case to serve as witnesses. You should thoroughly prepare the questions you hope to ask witnesses and any documents or other evidence you might want them to discuss. Before you bring any witness to court or otherwise ask that witness questions on record, you should be sure that he or she understands how the process works and what he or she will be expected to talk about.
- Serving as a witness can be a very stressful experience, and working with young witnesses in particular can raise issues for both the children and courts involved. It can be very hard for children to talk about upsetting events, especially where family members or authority figures are involved. Moreover, legal proceedings are difficult to understand for most adults, much less children, who are likely to be even less familiar with the actors, processes, and vocabulary of the justice system. If you are working with a child witness, you should therefore be sure to explain the process in clear and straightforward terms that they can understand. When the time comes for the child witness to speak to the court, you should also remember that many courts may not be designed for or accustomed to dealing with child witnesses, and judges may be skeptical of what children have to say. More recently, though, some jurisdictions have begun to make special provisions for child witnesses, and you should be sure to research whether the court hearing your case has separate rules and procedures for children or can offer any special arrangements or accommodations.
For more information on bringing children into the courtroom, see the child-friendly justice section on the Council of Europe’s website and our guide to child-friendly justice.
To find out if your jurisdiction makes special provisions for children in court, see our access to justice for children project.
Evidence: If you have written or photographic documentation, scientific studies or surveys, voice or video recordings, or physical evidence, you may be able to submit this to the court directly. In some jurisdictions, it may be possible or preferable to bring this evidence to the court’s attention while you are questioning a witness whose role in the case relates to the evidence you want to submit. Be aware that you may be required to bring the person who provided the evidence to the court with you so that the court can assess how reliable and credible the evidence is.
Experts: If you have consulted with any experts, those experts might submit reports to the court or appear before the judge as an expert witness to explain their views. As with any other witness, you will need to thoroughly prepare any experts you work with for questioning before you bring them to court.
Strategy
Strategies and tactics on the road to and inside the courtroom will be central to any victory, and will in large part be the responsibility of your lawyers. However, this is only one part of the overall strategy in your case. You should try to develop a comprehensive vision of advocacy that includes drawing international attention and gathering widespread support to your cause, and you may want to push for educating courts and legal professionals on the issues in your case locally, nationally, and globally.
You will need to have a follow-up strategy for after the case has been decided, and you should certainly anticipate that your cause will have a much longer and broader struggle than one simple court decision, no matter how groundbreaking or symbolic it may be.
Settling: Often times, settling your case out of court may not be in line with the goals of strategic litigation as it does not typically offer an opportunity to set precedent for future cases. However, it may at times be the better option for strategic or practical reasons. If you do decide to settle your case, think about negotiating solutions and remedies that would extend beyond simply the plaintiff or plaintiffs involved in the suit. You can actively involve the defendants, the government, and the public. You should also seek to make your settlement public knowledge by filing the agreement with the court if permissible and discussing the terms with the media. Settlement can provide a valuable means to initiate advocacy and reform movements, and may also serve to prevent future harm or damage done in similar cases by defendants.
Losing: If you do not believe that your case will succeed in court, all is not lost. You can adopt different advocacy strategies from the outset or as soon as you realise that you are likely to lose. You may start calling for the courts to be monitored and reformed, or begin an effort to overturn a decision outside the courtroom with the help of the local, state, or national government. If support is lacking in the jurisdiction in which you have filed, you may want to take your advocacy outside its borders. International pressure can be instrumental in promoting social change.
4. How else can you support your case?
Amicus curiae briefs
Some jurisdictions allow NGOs, governments, trade associations, corporations, or other interested parties to submit legal briefs as amicus curiae, papers written by "friends of the court" that take a position in support of either the plaintiff’s or defendant’s arguments.
In jurisdictions where these kinds of briefs are accepted, you may want to recruit groups that support your cause to write and file papers with the court. You may find that there is a limit to the number of submissions that non-parties can make, in which case you will want to carefully select whom you invite or allow to file supporting papers. You might want to consider potential contributors' profiles, reputations, institutional knowledge, prestige, general mission, motive for supporting your case, and the quality and importance of the work you think they will be able to contribute.
Examples:
- United States: With the assistance of a US law school, Human Rights Watch presented an amicus curiae brief in a case involving the deportation of immigrants following criminal convictions before the Inter-American Commission for Human Rights.
- Europe: The Commissioner for Human Rights at the Council of Europe can submit amicus curiae briefs. See the mandate of the Commissioner of Human Rights.
To find out whether NGOs can intervene in court proceedings in your jurisdiction, see our access to justice for children project.
Training
If your case is novel and the judges and lawyers who work for the court system or tribunal do not have a lot of experience, you may be able to offer, arrange for, or advocate for training programs conducted by outside experts to educate court officials and employees on children’s issues, human rights, international law, or other developing areas of the law that are particularly relevant to your case.
Media
Strategic litigation can be an excellent way to get the media interested and involved. The media provide a platform to dramatically increase awareness surrounding both your case and your cause in general; if you manage the publicity for your case well, this awareness may in turn become support. Even if your case is unpopular locally or nationally, international media may foster widespread support beyond your jurisdiction’s borders.
When you first file your case or when any subsequent major steps are taken, you may want to write a press release or otherwise alert local, national, and international media outlets. In some cases, it may also make sense to contact politicians you think would support your efforts. As always, do bear in mind that your legal strategy and communications between lawyers and clients are privileged and confidential information.
Children in the spotlight: Dealing with the media can be very intimidating for children, and you must remember that litigation is by its nature a very public process. This is particularly true of strategic litigation, where the primary purpose of bringing a case is often to draw national or international attention to violations of human rights. Because of these concerns, you should be sure to prepare any children involved in your case for dealing with journalists or reporters. If the children you are working with do not wish to interact with the media, you may also be able to ask courts in some jurisdictions to ensure that their identities remain anonymous even where other details of the case are publicised.
For more information on working with the media, see our media toolkit.
NGOs, academics, and other human rights specialists
There is likely a wide range of groups and people willing to offer their help and support for your case. NGOs can provide invaluable assistance by campaigning for your case in the community, networking with other supporters, researching legal or factual issues, and gathering information on the ground. Academics have access to extensive research facilities and can write articles about the issues in your case, speak at meetings and conferences, or otherwise raise awareness in the legal and human rights communities.
National human rights institutions (see our page on children's rights, national human rights institutions and ombudspersons) may offer libraries, general advice, and a chance to link up with other interested groups, while individual human rights advocates and specialists can share their own experiences and offer friendly advice. And, of course, do not forget the invaluable messages of support you may receive from plaintiffs’ families, friends, and communities.
5. How do you follow up once your case has been decided?
Enforcement/monitoring
Settling or winning a case before the court is only the beginning of the broader social change that strategic litigation seeks to bring about. In fact, enforcing court orders and settlement agreements has historically been one of the biggest challenges faced by those involved in strategic litigation. Remember that the goal of strategic litigation is lasting reform, and you may well need to continually monitor compliance with judgments or agreements to ensure that they remain in force.
Sanctions: If there is a history, pattern, or practice of judgments or other court orders not being enforced in a jurisdiction or against a particular defendant, you may want to argue for a court order or decision that gives realistic and easily enforceable sanctions in the event that the losing parties do not comply with the judgment. These may include things like putting oversight and monitoring programs into place or awarding punitive money damages.
Assistance: It may often make sense to ask other interested organisations in the jurisdiction to assist you in monitoring and enforcing your judgment. If they receive reports that governments or other defendants have not changed their behaviour in line with a court judgment, you might ask them to document these instances and refer the parties involved to you or your lawyers. Other groups may also offer to help proactively ensure that your judgment takes effect by providing services ordered by the court or interviewing members of the affected community to see whether they feel their positions have improved.
Continued advocacy
Without continued advocacy, any victory in the courtroom can be quickly forgotten or – worse yet – undone. Whether you win or not, post-litigation advocacy is essential to furthering the goals of strategic litigation, and you must not stop arguing for better government policies and improvements like more effective aid programs, education, and general community services in line with your cause. Connecting with grassroots organisations in the affected communities in particular and the jurisdiction overall can be vital to your effort’s success.