When would you bring strategic litigation?

As with many other decisions, timing can be a critical element to success in strategic litigation. This section looks at when it would make sense to bring a case, what factors influence this decision, when you can expect to get results, and what sort of timeline you might operate on.

1. When does it make sense to bring strategic litigation?

Examining your options

Not all cases make sense to file as strategic litigation, and it may not always be necessary to file a case to reach your goal or further your cause. In general, litigation can be a costly and time-consuming process. In some instances, it may make sense to reserve filing lawsuits only for people or governments who have been resistant to all other forms of change. There are many factors you might consider in making the decision whether or not to bring a case:

• Is there a legal issue involved that exemplifies or relates to a broader social or societal problem?
• Would a court decision be able to address that problem? Would the court decision have a widespread effect?
• Are your cause and the key issue in the case easy to understand for the media and the general public? How great is the potential for media coverage?
• Are other methods of accomplishing your goals possible? If so, how effective would they be compared with a strategic litigation approach?
• Are the courts in the jurisdiction you would file the case in independent from the other branches of government, well-regarded, and receptive or sympathetic to both your cause and strategic litigation in general?

Assessing your case

Because litigation can be so resource-intensive, it is wise to assess and investigate your case and the claims you wish to bring before filing a lawsuit. You should thoroughly examine the facts, the evidence, the claims themselves, and the jurisdiction in which you are planning to bring the claim. You could ask yourself:

• What are the relevant laws to your claims? Are they generally enforced? How clear are the laws? How clearly are they written? How clearly are they interpreted? How clearly are they applied?
  • Note that clear laws are generally easier to work with and bring claims under, whereas unclear laws offer a greater chance to create new and groundbreaking precedent, but at a higher risk.
• How strong are the legal claims? How will they be regarded by the courts and legal system? How popular will they be in the local, state, and national community?
• How likely are you to receive a favourable decision from the courts?
• Would the court be able and likely to provide for any more innovative or non-traditional remedies in your case?

In some jurisdictions, courts may be able to order that the person, government, or organisation being sued not only stop causing further harm, but actively work to remedy the damage they have caused and prevent such things from happening in the future. These bodies may be required to devise and put into place new systems and mechanisms to protect rights, provide care, or prevent abuses.

• Would there be any backlash or other political reactions or repercussions if your claims in court were successful? If they were unsuccessful?
• Is the theory behind your case clear, simple, and easy to understand? If you were successful, is the remedy that you are requesting clear, simple, and easy to implement?
• Is there another group or organisation that might be better able to handle the case?

Examples:


1. India: M.C. Mehta v. State of Tamil Nadu and Others. In this case, Indian activist plaintiff M.C. Mehta sued the state of Tamil Nadu to improve the working conditions for children and to provide children rescued from hazardous labour with an education.
2. Paraguay: Niños en conflicto con la ley: Instituto de Reeducación del Menor v. Paraguay. In a case surrounding an overpopulated juvenile detention centre in Paraguay, the Inter-American Court of Human Rights established minimum standards of care for young people in conflict with the law held in state custody.

International law considerations

If your claim involves international human rights law or international law in general, you may want to look at how international law interacts with the jurisdiction in which you plan to bring your case. See the guide to the UN and international human rights systems.

One of the best ways to do this is to look at how a government is applying existing national and international laws. If the application of existing laws has been arbitrary or inconsistent, it may strengthen your case and provide an opportunity to give the local courts or authorities guidance. You might ask yourself:

• How do the government and national courts interpret their own national civil, political, and human rights standards? Is this in line with the way the international community interprets those standards?
  • If standards have not been clearly established, there may be an opportunity through strategic litigation to work with governments and courts to figure out what the best practices should be.
• Would national or local government officials and authorities benefit from court guidance on how they can meet and operate under international human rights standards?
• Is there a reason to believe that the government isn’t fully complying with either international standards or its own national standards? If so, is there any evidence that this might be open to a legal challenge?

Look up international, regional and national laws related to children's rights by country on our legal database.

The United Nations Convention on the Rights of the Child (CRC): The CRC grants wide-ranging human rights for children and has been approved in every country except for the United States and South Sudan. The Optional Protocol to the CRC on a communications procedure (OP3) allows complaints to be brought about violations of children’s rights to the UN Committee on the Rights of the Child against any State that has ratified the OP3. The CRC is also a valuable source of law for national and regional courts. While courts will deal with the CRC in very different ways and some may be more receptive than others to international children’s rights, it is certainly worth thinking about the CRC as you put together your claims.

Read the full text of the CRC.

Look up international, regional and national case law examples citing the CRC on our legal database.

Check whether your country has ratified the OP3.

See our CRC complaints mechanism toolkit.

Evidence

Providing a court with evidence - information that proves your case - is key to your success. If there is no evidence to support your claims, you may have a difficult road ahead and a tough time winning in the courtroom. You should also be aware that although you may learn many things in your assessment, research, and investigation, there is a chance that a court might not accept all of your information as evidence when it examines your case.

Rules of evidence: You should be sure to look at the rules of evidence in the relevant jurisdiction; in particular, since many claims brought in strategic litigation are unconventional and can be difficult to prove, you should try to determine the rules for submitting less common evidence like sociological and field studies.

Experts: Experts can be critical in providing and analysing evidence. In many jurisdictions, relevant experts in the field may express opinions to the court in the way that lawyers and other representatives cannot. For this reason, it is worth exploring whether there would be well-respected and reliable expert witnesses or consultants willing to participate in your case.

Children and evidence: In many jurisdictions, courts may be mistrustful of or reluctant to accept evidence from children. To the extent possible, you should try to figure out whether there are particular rules, procedures or practices in the relevant jurisdiction for dealing with evidence that is produced or presented by children. If you have serious concerns about the court taking children’s evidence seriously, you might also consider looking for adults who have personal knowledge of the evidence you are working with.

To find out rules that apply to children giving evidence in court in your jurisdiction, see our access to justice for children project.

Resources

In considering whether to bring strategic litigation, resources are critical. Litigation can go on for many years, even decades, and resources must be available to support your legal team and fully fund all activities necessary to continue with the case. Given the uncertain outcome at every stage of litigation, you should think long-term and be sure to consider the worst-case scenario.

2. What are the requirements and expectations about timing?

Statute of limitations / prescriptive periods

A statute of limitations or prescriptive period is a law that sets out how long you have to file your lawsuit, and is often thought of and discussed as a sort of countdown clock.

Different types of claims or lawsuits usually have different time requirements, so it is important to know the nature of the claims you are hoping to bring in order to determine how long you have to file them with the court. You should always check the statute of limitations or prescriptive period in the jurisdiction in which you hope to bring your suit before you file it. Because of the statute of limitations or prescriptive period, finding the best case to advance your cause or goal through strategic litigation may be difficult. You might want to research the time limits you will face as soon as you have an idea that strategic litigation could be a strategy worth pursuing.

Starting the clock: The clock usually starts running from when the actions over which you hope to sue actually occurred, although in some cases there may be special extensions. These extensions often involve cases where the injured party was not aware of the damage being done at the time it was happening, as may be the case with things like fraud or exposure to toxic and dangerous substances. In those instances, the clock may start running from when the injured party becomes aware of the harm.

Stopping the clock: "Tolling" the statute of limitations or prescriptive period is a legal term meaning that the clock has stopped running. The clock may stop running for any number of reasons, including if the person suffering the harm is temporarily disabled or the person causing the harm becomes involved in certain other legal proceedings.

Tolling the clock for children: In many jurisdictions, the clock may not even start running for children until they reach the age of majority. This preserves children’s legal claims, and may mean that young adults in some jurisdictions can still bring claims related to children’s rights. You should also be aware, though, that many jurisdictions toll the statute of limitations or prescriptive period until adulthood because they do not allow children to bring legal claims. If this is the case, working with child plaintiffs on their own to bring a case may not be possible.

To find out more about limitation periods in your jurisdiction, see our access to justice for children project.

Appeals

If you lose your case in a lower court or other judicial proceeding, you may be able to challenge this loss and ask for a higher court to take another look at the case. However, it is likely that if you are able to appeal, there will be a time limit on how long you have to ask the higher court to look at the lower court’s order or decision.

When you first bring a case, you should be sure to look at whether you are guaranteed an appeal, whether you can apply for an appeal but will not automatically be entitled to appeal, or whether the court’s decision will be final. If you will be able to at least apply for an appeal, note the deadline to start the process, which usually begins by filing a legal request or otherwise contacting the court. Some jurisdictions may allow you to extend this deadline, but be sure to investigate this fully as extensions may not be automatic.

To find out more about appeals in your jurisdiction, see our access to justice for children project.

Exhaustion of remedies

In order to have your case heard by some international, regional or higher national courts, you must have exhausted your remedies. This means that you must first go through other judicial channels available before the new court will hear your claim.

In terms of international or regional tribunals, this may mean that you will be required to go through the national courts of the jurisdiction in which you would file your claim until you can no longer appeal. Once you have done so, there may be a time limit on how long you have to bring your claim to a higher court, or else the last court’s opinion or order may stand. Many international tribunals set this limit at six months.

Exceptions: There may be exceptions made both for the exhaustion of remedies requirement and for any time limits set. For example, if you can prove that the courts in the jurisdiction you would file your claim in are corrupt, you may not be required to pursue a remedy in those courts. Or if you can show why you could not bring your case within the expected time limit, you may be given an extension.

Time frame expectations

Because litigation necessarily involves other people, organisations, or governments and must be overseen by a judicial body, it is often difficult to predict how long it will take before getting a final decision. Any number of factors may influence how long a lawsuit takes, but in general litigation will go on for longer periods of time the more complex the case, the more parties who are involved, the less willing the parties are to resolve matters, and the busier the court’s schedule. In the best of worlds, cases may be resolved in a matter of months. In some instances, it can take years, or even decades to get a final decision. This may also vary widely both across and within jurisdictions.

Before you file your case, you should do your best to estimate how long you think the litigation process might take. You will never be able to pinpoint exactly when you will get a resolution, but you may come up with a range of time during which you might hope to hear back from the court. Based on this range, you can allocate time and resources appropriately and set the expectations of all parties involved.

Provisional measures: In some courts or tribunals, you may be able to apply for provisional measures, also called provisional remedies, interim measures, interim injunctions, and preliminary injunctions. Provisional measures are designed to prevent any further harm to the parties while the case is being decided, so the court or tribunal may order the defendants to cease certain actions at the outset of the case or prevent a potentially harmful law or policy from going into effect. Once a final judgment has been issued, the provisional measures may become permanent, be modified, or be lifted entirely.

Children and time commitments: If you are working with young clients, it is especially important to be clear about both how long it can take before they get a final answer from the court and how unpredictable things may be along the way. Also bear in mind that children often have many different obligations and schedules that change from year to year, so it can be difficult for them to make the kind of long-term commitment that strategic litigation requires. Because of this, however, courts in some jurisdictions are able to "fast track" certain types of cases involving children, especially those that relate to family matters or claims of child abuse and neglect. If you are concerned about the timeline for a case you hope to bring involving children, it may be worth investigating whether there are rules or practices in the jurisdiction in which you hope to file that would provide for you to reach a speedier resolution.