Not just anyone can bring a case to the courts. In strategic litigation, as in all kinds of lawsuits, determining who the players are is key. This section will help you identify who will file the lawsuit, who they will sue, and whether or how people or organisations not named as parties in the lawsuit could intervene or otherwise get involved.
1. Who will file the lawsuit?
Standing
Many jurisdictions still require what is known as standing. Standing is just another way to figure out who should bring a lawsuit. For example, in some countries, in order to have standing to bring a lawsuit, you must have been directly damaged or victimised by the person, organisation, or government you are suing. It is important to look at whether your jurisdiction or the jurisdiction in which you plan to bring a case requires standing, and – if so – what limits that places on who can bring a lawsuit. Some jurisdictions may relax the standing requirement for cases filed in the "public interest", which often include cases about human rights violations.
Organisation vs. individual: Standing requirements usually make clear whether an organisation may file a complaint on behalf of people who have suffered wrongs, or if those people must file their cases directly. If you have the choice between the two, note that a case filed in your group’s name will likely generate much more publicity for your group than if your group’s name were not directly involved.
Third parties: Standing may determine whether interested third parties are allowed to directly intervene or join in a case that has already been filed. These third parties might be people or organisations who were not directly damaged by actions or the behaviour of the person, organisation, or government you are suing, but retain a strong interest in the outcome of the litigation.
- Legally-oriented NGOs might want to intervene in a case for numerous reasons. They might see the key issues in the case as central to their mission, feel that their resources would be of necessary or genuine assistance to the case, or see the case as an opportunity for good publicity.
- If third parties are not allowed to directly intervene or join in a case, they may still assist in the litigation by making their opinions known as amicus curiae. Amicus curiae means "friend of the court", and many jurisdictions permit interested organisations to prepare and file legal papers in support of one of the parties in the case.
To find out whether NGOs can bring or intervene in legal proceedings in your jurisdiction, see our access to justice for children project.
Children and standing: Many jurisdictions and international courts or tribunals do not allow people under the age of majority to bring cases directly. This may mean that children will need to wait until they have reached adulthood before they can start legal proceedings, or that simply that they cannot bring legal claims at all. In some courts, parents, guardians, or other adult representatives may be able to file claims on a child’s behalf. Where this is possible, be aware that children and their representatives may not always have the same interests at heart. You should do your best to be sure that everyone involved is on the same page before bringing a case, particularly where children’s legal claims relate to family or other sensitive matters.
To find out whether children can initiate legal proceedings by themselves in your jurisdiction, see our access to justice for children project.
Group action lawsuits
A group action lawsuit, also known as a class action, collective action or group litigation, may be a possibility in some jurisdictions. Under the collective action model, a small group of people or a representative organisation sues on behalf of a much larger group.
Filing a group action lawsuit may require approval from the court, and you should find out what these requirements are before bringing the case to the court. Courts may want to examine the people who are hoping to bring the lawsuit, their claims, and the people they are hoping to represent, so it would be wise to consider each of these if you wish to pursue a group action suit.
Example:
- United States: The American Civil Liberties Union successfully brought a class action suit against a school district that had been discriminating against Native American students. See full details of Antoine et al v. Winner School District.
To find out whether group litigation is available in your jurisdiction, see our access to justice for children project.
2. How do you choose plaintiffs?
Finding and recruiting plaintiffs
Not all strategic litigation cases are carefully selected from the outset, but given the nature of strategic litigation, you may find yourself in a position of looking for the right people to bring a case that supports your cause or goal. If you have such a case in mind, there are many ways you can search for and identify people who can file their claims with the courts. These people are usually known as plaintiffs, but may also be called complainants, claimants, or petitioners.
Before you begin looking for plaintiffs in any manner, be sure to look at local laws and practices to determine whether and how it is permissible to recruit or solicit clients. Bear in mind that the rules may differ for paying and non-paying clients. Regardless of whether you expect plaintiffs to pay for legal services in connection with the case, do remember that you are seeking to advance your own or your organisation’s cause when you speak with potential plaintiffs. Be sure to be upfront about this goal. With this in mind, below is a list of common ways to find or recruit plaintiffs:
- Field visits/interviews;
- Referrals from legal aid or other law-oriented client-based services;
- Referrals from NGOs;
- Existing channels for complaints, like local groups or organisations, community centres, and trade or labour unions;
- Setting up new channels or points to receive complaints with the assistance of local and national advocates, willing and interested lawyers, law students, and other volunteers;
- Keeping consultation or office hours;
- Training programs;
- Journals, newsletters, casework bulletins and other publications;
- Print or online advertisement; and
- Meetings or conferences with interested advocates and legal practitioners.
Contacting child plaintiffs: Searching for young plaintiffs can raise many sensitive issues. Remember that it can be very intimidating for children to be approached by people they do not know, particularly when they are not in familiar environments or with adults they know and trust. Where possible, you might first consider contacting children through their families, schools, recreation or youth centres, or other safe spaces. If you do feel you need to approach a child directly, you should do so on the child’s terms and be extremely careful that your interaction does not place them at any unnecessary risk of harm.
Evaluating potential plaintiffs
Once you have determined that a potential plaintiff’s (or potential plaintiffs’) case would advance your cause in a meaningful way, you should then evaluate their particular circumstances and individual characteristics thoroughly before you or they file a lawsuit. Things you might want to consider in this evaluation include:
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The strengths and weaknesses of the potential plaintiff’s claims, and the individual facts surrounding those claims;
- Plaintiffs’ claims may be more appealing if they stem from many incidents or involve multiple grounds.
- In some cases, it may be wise to stay within more traditional and established fields of law if you are testing the powers of a new law or fighting system-wide discrimination. For example, you might want to bring straightforward employment discrimination claims rather than adopting a more creative or novel argument.
- The plaintiff’s financial means, particularly if they will be paying in any way for legal services;
- The plaintiff’s lifestyle, schedule, free time, and availability to meet and actively participate in the case;
- The plaintiff’s interest in the cause;
- Personal characteristics like credibility, charisma, and the ability to communicate clearly and effectively; and
- The likelihood of success and the effects that success or failure might ultimately have on the plaintiff’s existence.
Safety concerns
It is extremely important that you consider the safety of potential or actual plaintiffs and any additional people involved in the case at all times.
Plaintiffs, lawyers, organisations and other persons assisting in the case, or even simply supporting the case, may face severe economic, social and personal consequences. It is critical to make sure those involved in the case feel safe and protected. If there is immediate backlash against the case when it is filed or the situation worsens down the line, you should ensure that all parties involved know whom they can contact should they ever feel that they are in danger.
If a person or organisation ultimately feels that they must discontinue their involvement in the case, you are certainly encouraged to discuss this decision with them, but must above all else respect their wishes.
Confidentiality
All communications between lawyers and potential or actual clients must be held in the strictest confidence. Even the fact that you are meeting with lawyers or thinking about filing a lawsuit is confidential. When you are interviewing potential plaintiffs in connection with a lawsuit, you should assure them that you intend to keep any information you learn in confidence unless they give you permission to share, broadcast, or otherwise use that information. This should be the case regardless of whether they ultimately become a plaintiff or otherwise participate in your lawsuit.
3. How do you choose defendants?
Determining and selecting from possible defendants
Just as important as finding people who will be bringing a lawsuit is figuring out who exactly they should sue. Once a case is filed, the party being sued is usually known as a defendant, or may also be called a respondent. In some instances, it will be very clear who the appropriate defendant for a lawsuit would be. Even so, there may be more options available than you think, and there are several things you might wish to consider:
Substance: The substance of your claim and the laws you wish to enforce may dictate or explicitly direct who the appropriate defendant would be.
Procedure: The laws that underlie your claim or the court in which you bring your claim may have procedural requirements that suggest or mandate selecting a particular defendant.
Success: The likelihood of success you might have in bringing your suit against potential defendants could also come into play. It might be easier to prove that one potential defendant was responsible for the harm your plaintiff suffered than another, so you might consider focusing your attention and resources on defendants against whom you have more evidence.
Remedies: Different defendants may be able to offer different solutions to remedy the harm your plaintiff suffered if you win the case. For example, if you sue a company, they may be able to offer money, but will not be able to change a law. When selecting defendants, you should revisit your central goal in the case to figure out which defendants could offer you the results you desire. Remember that the defendant will be instrumental in bringing about the social change you desire.
Multiple defendants: Just as it is possible to have multiple plaintiffs, it is possible to have multiple defendants. It may make sense to sue more than one party to get the relief that you are requesting, particularly if you are seeking money. In some instances, one defendant may be required to pay for the wrongs that all other defendants have inflicted. This is called joint liability.
Common defendants in strategic litigation
There are a few sorts of defendants that are sued regularly in strategic litigation. Since the aim of strategic litigation is broader social change, the defendants are most often branches of the government.
Sometimes, however, it may be possible to sue public or private companies and corporations. A list of the most common defendants in strategic litigation cases and things you might want to think over in bringing a lawsuit against them follows:
National governments: National governments have the broadest power to change the laws or practices on a large scale. They may also have the most resources to defend a suit and be the most resistant to change. Questions you might ask yourself before suing a national government include:
- What is the national government’s likely position on your lawsuit? Will they be supportive, or will they vow to fight it? Why?
- If the national government is not supportive, is there any organised political opposition? Is that opposition public and vocal?
- If the national government as a whole is not supportive, are there individual national or local politicians who are or would be supportive?
- How many resources will the national government be able to devote to defending the case? How skilled are their lawyers? What will their strategy likely be?
- Are there any upcoming elections or other changes in power that might impact the national government’s position?
Arms of the national government and lower levels of government: This category includes national and local authorities, government ministries or agencies, and certain institutions. Within a national jurisdiction, counties and municipalities or other political subdivisions may have their own governmental powers and be appropriate defendants. In a federal system, state governments may be similarly appropriate. As above, it will be important to ask yourself questions about the potential defendant’s stance and resources, but suing a lower level of government comes with its own set of considerations as well:
- If your suit is successful, will the defending government body have the resources, funds, and infrastructure to supply the relief you have requested?
- Is there localised or community opposition? If so, are there feasible ways to overcome it?
- Will the lawsuit draw national attention? If this is likely, will national politics change the perception of the suit or otherwise influence the government body or community at large?
Schools: Many children spend much of their time in the classroom, and education authorities are often appropriate defendants where cases arise from things that happened at school. Because schools can play such important roles in children’s lives, though, you should be very careful that bringing a lawsuit against a school authority does not jeopardise a child’s educational, social, or extracurricular opportunities.
Corporations: Suing corporations may have a sizable global impact and set a strong precedent for business practices. However, corporations also have many legal resources, and lawsuits can be tricky given how many places and in what ways a sizable corporation does business.
- Publicly held corporations, which are listed on stock exchanges and tend to be larger in scope, can expect reactions to the lawsuit from many interested parties. These parties include the corporation’s shareholders, management, workforce, creditors and competitors. The general financial markets and market regulators may also take interest. This will likely result in more people paying greater attention to your case, but bear in mind that this could work both for and against your lawsuit depending on what the interested parties have to say.
Examples:
- National Government. Russia: Chelyabinsk/Mayak Nuclear Production Facility cases. Following one of the largest nuclear disasters in world history, children in affected areas were forced to assist in cleanup efforts and have suffered long-standing serious health problems. Many have successfully sued the government and now receive small support payments.
- School. United States: Brown v. Board of Education of Topeka, Kansas. A group of parents sued on behalf of their children attending racially segregated schools. In a landmark decision, the US Supreme Court ordered that schools across the country integrate their student bodies. See more on the Brown Foundation website.
- Corporation. Nigeria: A collective action lawsuit was brought by the Nigerian government seeking compensation for the families of children harmed by pharmaceutical firm Pfizer’s illegal testing of an unregistered drug on children. See more on the case brought against Pfizer.
- Corporation. Cote d'Ivoire: A case was brought in United States courts against three large corporations (Nestlé, Archer Daniels Midland Co., and Cargill) on behalf of individuals who had been trafficked into slavery on cocoa farms as children. See more on the case brought against Nestlé, Archer Daniels Midland Co., and Cargill.
4. What role can NGOs and other players take?
NGOs
Many, if not most, NGOs are not fully equipped to run large scale strategic litigation cases without assistance. If a case is to be filed in a location beyond commuting distance from an NGO’s headquarters or field office, it may be very difficult to bring that case without local representation. However, NGOs without the resources to bring their own cases can still be heavily involved in strategic litigation. They can identify potential plaintiffs and cases; manage, service, and advise on active lawsuits; publicise case progress and the eventual results; monitor enforcement of judicial decisions; and advocate for the cause behind the litigation in other ways.
Other interested organisations
You may want to think about getting people and organisations who are not directly involved in your case, but have an interest in it, to participate.
Think about who these people and organisations might be, and why you think they might want to get involved. If they are interested, you may be able to pool resources or work on the case together. For example, you can consult with legal advisers, local NGOs, or experts in the field your case addresses to help you formulate your legal strategy, provide useful evidence, gather support in the community, or simply give general feedback and encouragement. Before and as you reach out, do bear in mind that you may be dealing with sensitive or confidential information. You should be sure to first run any potential third party you hope to consult with by your lawyers and the plaintiffs involved to ensure that you have their permission.