1.2 Alternatives and Complements to Litigation

Updated 2013 by Jeffrey S. Gutman

All options for obtaining relief, instead of or in conjunction with litigation, should be considered and used where appropriate. If the problem can be resolved without litigation, it should be.  Litigation can often be more expensive in time and cost than alternatives.  The prevailing law may cast doubt on the prospects for success and the available remedies may only imperfectly resolve the issue.  In certain cases, alternatives to litigation may more quickly resolve problems faced by a broader group of people.  These non-litigation strategies can also be used in conjunction with litigation, either sequentially or simultaneously.  The Clearinghouse Review: Journal of Poverty Law and Policy has featured numerous articles reporting on such efforts.1  While successful reform campaigns are too numerous to mention, particularly noteworthy examples can offer advocates ideas and inspiration.  

1.2.A.  Examples of Systemic Reform Efforts

1.2.A.1. The Shelter Access Project in the District of Columbia

The Washington Legal Clinic for the Homeless created the Shelter Access Project to promote equal access to emergency homeless shelters for residents of the District of Columbia.2  The Project educated and trained shelter residents on their rights under the Americans With Disabilities Act through brochures and oral presentations.  The Project attempted to provide technical assistance to the government agencies and private contractors which administered the shelter care system.  When these efforts proved largely unsuccessful, Project staff and residents testified before the District of Columbia City Council to educate policymakers and their staffs on the city's legal obligations and the consequences of its failure to meet them.

When recognition of shelter inaccessibility grew, the responsible parties chose not to cooperate but instead shifted blame and costs on each other.  The Project turned again to the City Council and successfully urged passage of the Homeless Services Reform Act3, which required homeless shelters to comply with federal disability standards and to implement policies and procedures designed to make shelters more accessible.  ADA compliance was to be enforced and coordinated by a Cabinet-level Office of Disability Rights. 

At the same time, the Project referred complaints about inaccessibility to the Department of Justice Civil Rights Division.  The volume of such complaints may have prompted the Division to initiate a review of the District's homeless shelter system's compliance with the ADA.  Project staff assisted the Division's review by providing a report summarizing the long history of noncompliance and offering specific recommendations for reform.  Ultimately, the Division and the District of Columbia government entered into a settlement agreement following the Department's inspection of fifteen shelters for physical accessibility.  The Project continues to monitor and press both the District government and the Justice Department to ensure timely compliance with the agreement.  When clients have continued to face disability discrimination, attorneys with the Project overcame initial hesitation to sue non-profit or faith-based homeless service providers.  Opting against lengthy and potentially difficult class action litigation, the Project partnered with law firms and a law school legal clinic to bring individual federal lawsuits to remedy these violations.  

1.2.A.2. Fighting Foreclosures in Los Angeles

Neighborhood Legal Services of Los Angeles County faced increasing numbers of clients in foreclosure actions.4  Neighborhood Legal Services found that referrals to hotlines and resource-intensive affirmative litigation in individual cases were not making a significant impact in addressing the enormous foreclosure problem in the San Fernando Valley.  As a result, Neighborhood Legal Services partnered with a large community organization, One LA-IAF, which had identified foreclosure as a priority issue for its members.  The project began with a foreclosure-prevention workshop, but the large numbers of participants made referrals to government counseling agencies and measurement of the effectiveness of such referrals difficult. 

Instead, the project divided homeowners into groups according to their loan servicer and engaged in collective negotiations.  A HUD-certified counseling organization joined the project and staff from Neighborhood Legal Services and One LA-IAF teamed to train clients on mortgage foreclosure principles.  Counselors assisted clients in determining affordable monthly payment levels and modification alternatives.  Neighborhood Legal Services prevailed upon federal and state legislators to arrange meetings with high-level representatives of the loan servicers who agreed to meet with groups of homeowners.  Clients were empowered to participate in the resulting negotiations and were directed to report on the results of their efforts. 

Based on information provided from program participants, the project proposed specific measures to avoid foreclosure and One LA-IAF introduced the proposal at a large public meeting which attracted considerable press coverage.  Litigation by state attorneys general against particular servicers made them more inclined to participate constructively in the negotiations.  The collaboration between Neighborhood Legal Services, community organizations and volunteers has leveraged the resources and expertise of each, producing more assistance to homeowners than any one group or strategy could produce on its own.  

1.2.A.3. Expanding Health Care in Illinois

Recent efforts to expand health care in Illinois highlight the skills and capacities that public interest lawyers can bring to advocacy campaigns, as well as the necessary skills such lawyers often lack that are required to make such efforts successful.5  In the late 1990s, the Shriver Center became aware that many low income working parents were losing their health insurance coverage as they moved from welfare to work.  The Center developed a policy proposal designed to expand health care coverage for these families.  At the same time, a new Chicago community organization, United Power for Action and Justice, identified access to health care as a key issue it wanted to address. Overcoming potential risks and initial difficulties, the Shriver Center and United Power teamed together and were able to secure passage of an incremental expansion of the program that became known as FamilyCare.   Shriver Center attorneys deployed their skills in policy analysis and development and lobbying, while United Power used its expertise in public relations, media, organizing public meetings and assembling stories and support from individuals to accomplish the expansion in health care coverage.

Litigation played a more important role in the Shriver Center's efforts to enforce provisions of the Medicaid Act to secure access to doctors and levels of care for Cook County, Illinois children.  The litigation in Memisovski v. Maram6 had the traditional hallmarks of such litigation, repeated motions to dismiss, extensive discovery, and the investment of twelve years of time and resources.  Ultimately, the plaintiffs prevailed and opted to pursue settlement rather than face further delays on remedial litigation and likely appeals.  Taking advantage of a presence of a new governor who had campaigned on health care reform and research showing the benefits and cost savings available through preventative care for children, the case was settled in 2005.  Health care coverage was expanded for these needy children. 

1.2.A.4. Reforming Disability Compensation in Washington

A multi-pronged approach to problem solving was employed in Lightfoot v. District of Columbia. Lightfoot involved a challenge to the policies by which the disability compensation benefits of injured D.C. city employees were reduced, suspended or terminated.  One of the co-counsel in the federal litigation, the D.C. Employment Justice Center, founded a group called the Injured Worker Advocates.  A Center attorney who was not involved in the federal litigation supported this group.  The Injured Worker Advocates is a group of former city workers who have banded together to protest and press reform of the manner in which injured municipal employees are treated in the District.

The Injured Worker Advocates used public rallies and other forms of publicity to increase membership and build support for legislation that Center lawyers drafted for City Council consideration.  Using legislative advocacy, the Injured Worker Advocates and Center persuaded the City Council to hold a hearing on the disability compensation program.  Many Injured Worker Advocates group members testified at the hearing, which coincided with the legislative process required to confirm the director of the relevant agency to his post.  Their stories, as well as victories in court, led to the dismissal of the director and important new legislative reforms.  Subsequently, the Center and others submitted public comments on proposed rules to implement the new legislation.  At the same time, the litigation surfaced facts and favorable judicial opinions that supported the need for legislative reform and were designed to furnish both prospective and retroactive relief to class members.

1.2.B.  Administrative Advocacy

Administrative advocacy can take a variety of forms in connection with agency adjudication, rule-making and investigation.7  Numerous federal and state benefit programs have procedures for the administrative appeal of adverse decisions.  The advocate should evaluate whether these procedures comport with principles of due process and determine whether the administrative appeal is a mandatory or permissive prerequisite to judicial review.  These administrative appeal procedures should permit the advocate to review the administrative record, to present documents and testimony in a hearing before a neutral decisionmaker and to question agency representatives.  Some procedures have required or permitted options available to mediate the dispute.

In addition to having quasi-judicial procedures for enforcement of a statute, many agencies have procedures for filing administrative complaints or requests that an agency commence an investigation into questioned practices.  The advocate should determine whether the agency has formal or informal processes for such filings and assemble a compelling factual case to persuade the agency to exercise its discretion to review or investigate the matter at issue.  Advocates may file comments in response to notices of proposed federal or state rule-making, and many administrative procedure acts permit the filing of requests to commence a rule-making.8

Administrative advocacy can be informal. Advocates can contact agency personnel and their supervisors, up to the agency head or attorney or general counsel.  Call agency contacts who have agreed with your position, or are at least open-minded, to see if they are willing to take official or unofficial action.  A local administrator is often surprisingly amenable to changing a local practice if the local agency knows that its federal or state oversight agency is supportive of the change.  Even if unsuccessful, informal administrative advocacy can serve as informal discovery of the agency’s position.  Keep careful records of your conversations and commit the agency’s position to writing when possible.  If agency positions conflict with legislative directives, advocates or their clients9may notify the relevant legislator or legislative committee chair to bring the matter to their attention.  Questions from legislative staff may prompt the agency to reconsider its position or interpretation.  Typically, legislative staff requests are color-coded and given the highest priority.

1.2.C.  Legislative Advocacy

As explained above, because social problems have become more complex and, in some cases, litigation is not well suited to address them, advocates must consider legislative advocacy.  Such advocacy can take many forms, from support for new legislation to increased funding for certain programs.  It is therefore important for legal aid attorneys to consider legislative reform and to develop the drafting skills required to draft proposed legislation.  As noted in the vignettes above, marshaling support for legislative reform requires networking and identifying groups which share the same concerns and have the skills and contacts necessary to contribute meaningfully to the advocacy.  Individuals should be identified who have been harmed or stand to benefit from legislative change.  Attorneys can contribute by drafting testimony for such individuals and preparing them to answer questions that may be posed by legislators or staff.  Legal aid attorneys should become familiar with state legislative processes, develop contacts with key staff members and understand how to advance a cause on the legislative agenda.  Quite frequently, legislative change supported by key community constituencies can produce more lasting and effective change than other forms of advocacy.

1.2.D.  Press and Media

Newspapers and other media are useful in several ways.  Publicity and articles can get a message out and shape public opinion.  This is especially useful if you need public opinion to support your lobbying efforts or to encourage the public to take a particular action.  An article or story can reflect public opinion and bolster your moral standing or provide a margin of comfort for a judge who might otherwise be afraid to issue a novel order.  News reporting can serve as another source of fact finding and can force your adversaries to pin down their position as they are quoted.  Readers of an article may bring further evidence or potential plaintiffs to your attention.10

When you approach the media, you must do so with an understanding of the way the media operates. In most cases the reporter is interested in the general public interest of the story.  Very few local reporters have the resources for true investigative reporting.  The press release may form the core of the story and may represent all that the reporter knows about the issue.  Commonly, the reporter will call you and your adversary for a quote.  You should have a quote prepared, and you should understand that the reporter will listen to your articulate explanation and may use the one sentence you wish you never said.  You can start the conversation by saying that you would like to give some information on background and then indicate when you want to be quoted, but such control is not always granted or honored.

Create a message that will be understandable and persuasive to your audience.  A radio or television interview is not the time to talk about motions to dismiss and burdens of proof.  It is the time to talk in sound bites, just as when you were first formulating the solution to your client’s problem.  If you work at it, you may be able to develop a relationship with a reporter who is interested in your story.  You will be able to give background information to the reporter, and the reporter may be willing to share information obtained during an interview or investigation.  Do not be lulled, however, into thinking that the reporter is on your side or your friend.  You may find your confessions and doubts incorporated into a future article.

In general, you can contact the media in three ways.  You can simply call the city desk, relevant beat reporter, or a reporter with whom you have a relationship.  You can issue a press release that conforms to the format used in your community.  You can call a press conference by issuing a press release or making direct calls and inviting the media to appear at a particular time and place.  You can often attract a lot of attention in this manner, despite the short attention span of the media.  The press conference should be planned with as much care as an oral argument; include the sound bites you want aired and be prepared for challenging questions.  A spokesperson who is a client or group representative makes the story more immediate.  An attorney as the spokesperson can project a level of seriousness, knowledge, and intent.  Often a combination of both works best.  Prepare the client and practice, just as you would for testimony.

You can also approach the editorial board of the newspaper to solicit a favorable editorial.  Ask to arrange a meeting with the editorial board or representative at which you will have an opportunity to present your story and argue your position.  Even if you do not obtain a favorable editorial, the off-the-record remarks and feedback you obtain from the editorial board can serve as a useful barometer of community response.  The newspaper may be interested in publication of an Op-Ed piece that will get the matter before the public.  And even when this is not possible, shorter letters to the editor may be published. Recently, in Washington, D.C., an attorney with the Public Defender Service arranged for press coverage and a Washington Post editorial critical of a judge's delay in granting a certificate of innocence for an exonerated criminal defendant. The judge issued a favorable order the day after the editorial was published.

To insure internal control of your media strategy, you should have a clear understanding within your office, litigation team, and with your client as to how media inquiries will be handled.  In general, one attorney in your office should be the point of contact with the media for the case, and that attorney should know and understand the media strategy for the litigation.  Your agreement with your client as to how media inquiries will be handled should be in the retainer.

Increasingly, publicity does not require a reporter as an intermediary.  With Facebook, Twitter, community list serves and blogs, advocates can independently make the public aware of an issue, solicit proposed solutions and identify partners with similar views.11 Generation of public support for a cause is key to a mobilization strategy designed to educate the public about the issue and to place it on a legislative or agency agenda.

1.2.E.  Community Education

Community education is one of the most important undertakings of a legal services attorney.12  In most circumstances, it will also be an adjunct to litigation.  Community education may be particularly necessary when you are trying to locate plaintiffs or witnesses or when you want to test the capacity of a public system.  For instance, before commencing litigation to challenge the failure of a paratransit system to comply with the Americans with Disabilities Act, the attorneys and the organizational client educated potential riders of their rights, surveyed people with disabilities about their experiences with the system and obtained data about noncompliance as a result.  Community education can be especially useful after you have settled or won the case to let people know about the new resources available or the new rules that will apply to them.  You can include community education as part of your settlement or request for relief.

When you engage in community education, be sensitive to the forms and levels of communication best understood and appreciated by your target audience and their spoken languages.  Always consider alternate formats, such as large print, tape, and Braille for people with visual impairments, and the availability of interpreters when conducting outreach and community presentations.  You may also want to develop materials targeted at social service providers who work with the audience you are trying to reach, both to ensure they can advise clients of their options and rights, and so they can recognize problems and refer clients who are in need of representation to your office.

1.2.F.  Direct Action and Community Development Work

Direct action can refer to two different approaches to obtaining your desired solution.  First, you can simply fix or coordinate the fixing of the problem.  For instance, the defendant in a lawsuit initiated by her town to declare her house an imminent health hazard and to raze it contacted a legal services lawyer.  Legally, the attorney could have raised procedural defenses or counterclaims relating to the client’s disability.  Instead, the lawyer contacted a local community group that, working with a local church, sent a team of people and a dumpster to the house.  The volunteer team cleared out years of debris, and performed some emergency repairs. 

Direct action may also mean mobilizing a group of people to apply pressure to the government or other entity to obtain a specific result.13 Disability groups have engaged in direct action, often in conjunction with litigation, to obtain accessible transportation or access to public buildings.  Direct action in your case might occur on a smaller scale.  It may be as simple as turning out a crowd at a public hearing or in the courtroom.  It may be a sit-in at the welfare office to protest a new rule or at a local restaurant to obtain an accessible restroom.  In most cases, combining direct action with a media strategy is useful.

Community development work involves the use of public and community resources to obtain the desired results.  It can refer specifically to becoming involved in your town, city, or state’s process for allocation of federal and state community development dollars.  It can also mean working with a local not-for-profit or for-profit development company to create housing, job opportunities, or other community enhancements.

1.2.G.  Amicus Participation

One alternative to the substantial investment of time and resources required for the preparation, initiation, and prosecution of direct litigation on behalf of your clients is to participate, selectively and strategically, in pending lawsuits involving other parties that have raised the same or similar issues.

1.2.G.1 The Amicus Curiae

Through the vehicle of the amicus curiae—the “friend of the court”—legal aid attorneys can vigorously represent their clients’ interests, often in the context of precedent-setting decisions, without formally initiating or intervening in the underlying litigation.  Amicus participation thus affords attorneys the opportunity to influence directly and immediately the outcome of cases that may dramatically affect their clients’ lives while avoiding most of the resource constraints imposed by conventional litigation.

Unlike their counterparts in many other public interest law organizations, legal aid advocates do not routinely participate as amici in cases involving other parties.  However, given the modern expanded role of the amicus curiae in federal litigation14 and the increasing success of amicus arguments presented by a wide variety of interest groups, including conservative public interest organizations,15 legal aid advocates should more fully utilize this effective (and efficient) alternative to direct litigation.16

Over time, the role of the amicus curiae evolved to encompass overt advocacy on behalf of the amicus organization’s legal position, and modern amici invariably provide active support for one or more parties to the litigation.17  Indeed, under current federal rules, an amicus seeking leave to participate in a case must articulate its specific interest in the litigation, identify the party that it intends to support, and (in the U.S. Supreme Court) disclose certain relationships which may exist between the amicus and the parties to the case.18

1.2.G.2 The Amicus Brief

1.2.G.2.a. Contents of the Brief. 

Typically, an amicus simply submits a brief in support of its legal position.  Under the federal appellate rules, such briefs may be filed “only if accompanied by written consent of all parties, or by leave of court granted on motion, or at the request of the court.”19  Generally an amicus who is unable to obtain the requisite consent will file a motion for leave to file its brief and at the same time “conditionally file” the brief itself—a procedure permitted under Rule 29.20  The motion must identify the “interest of the applicant,” and the brief should be filed (or conditionally filed) within the same time allowed for the party whose position the amicus supports.21

A similar procedure governs amicus participation in the Supreme Court and is set forth in Supreme Court Rule 37.  Although Rule 37.2 states that motions for leave to file an amicus brief after the parties refuse to consent are “disfavored,” in practice the Court currently grants “nearly all” motions for leave to file an amicus brief, even when consent is denied by a party.22  No express provision in the Federal Rules of Civil Procedure applies to amicus advocacy in the district courts.  However, those courts might well look for guidance to Federal Rule of Appellate Procedure 29, and an amicus seeking to be heard in the district court should follow the process set forth in Rule 29.23

 An amicus brief can target a specific weakness in a party’s argument, develop variations on the arguments made by the parties and present emotive or otherwise “risky” arguments that a party cannot or should not address.24  Often an amicus brief can serve as an important factual supplement to the record or furnish relevant technical data or background information not otherwise available to the court.25

1.2.G.2.b. New Issues or Arguments

  Often an amicus may seek to argue a legal theory or raise a legal issue that the parties themselves have not argued or raised.  As a rule, courts are reluctant to permit an amicus “to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.”26  This principle is merely a corollary to the more basic jurisprudential prohibition against the consideration of issues that are not argued in the lower court27 or raised in the appellant’s opening brief.28  However, courts often exercise their discretion to rule upon new issues raised by amici when “the issue is purely one of law and either does not affect or rely upon the factual record developed by the parties”29 or where “exceptional circumstances” warrant consideration of the argument.30   Courts will find such “exceptional circumstances” when the issue presents “a significant question of general impact,”31, where the issue implicates “substantial public interest,”32 or where failure to consider the issue would cause an “unduly harsh” result.33 Furthermore, since the federal courts have an independent and continuing obligation to resolve jurisdictional questions, even when not raised by the parties, an amicus who presents such issues may in fact be welcomed.34

Consistent with these principles, the Supreme Court has sometimes expressly refused to consider issues raised solely by an amicus.35  However, the Court periodically deviates from this general rule and bases its decision on an argument presented only in an amicus brief.36  Hence, amici organizations and their counsel should not be deterred from offering new issues or theories for the Court’s consideration.

An amicus (or any other party on appeal) who offers new legal theories or alternative legal grounds in support of the lower court’s judgment will benefit from the “settled rule” that holds “if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”37  Thus a reviewing court “may affirm on any ground supported by the record even if it differs from the reasoning of the district court.”38  An amicus who argues in support of the lower court’s disposition therefore should be accorded greater latitude in presenting new or alternative claims on appeal.

1.2.G.2.c. Reply Briefs and Oral Argument

 The Supreme Court prohibits the filing of amicus reply briefs.39  Other federal courts have adopted the same rule.40  However, an amicus that has been permitted to file a brief in connection with a petition for certiorari or other discretionary review (e.g., a rehearing or rehearing en banc in the court of appeals) certainly may seek to participate in the briefing on the merits if review is granted.41

Both the Supreme Court and federal appellate rules provide that a motion by an amicus to participate in oral argument will be granted only for “extraordinary” reasons, particularly when the party whose position the amicus supports does not consent to share its allotted argument time.42  However, in significant cases the courts of appeals are probably more likely than the Supreme Court to permit argument by an amicus, and the allied parties to the litigation are more likely to share their argument time.43

1.2.G.3 Advantages and Disadvantages of Amicus Participation

Many traditional public interest law organizations have long favored amicus participation as a resource-efficient way to concentrate their advocacy upon cases which appear poised for a precedent-setting decision in order to obtain the most direct and immediate impact for their constituents.  Direct litigation may consume years of time and expenses with no guarantees that the outcome, even if favorable, will establish any lasting precedent.

The influence of amicus advocacy upon court decisions is quite difficult to measure in objective terms.44  Recent empirical research, based on surveys completed by federal judges, suggest that under certain circumstances, judges find amicus briefs useful.45  This research shows that judges are influenced by the identity of the drafter of the brief.46  This suggests potential advantage if a legal aid organization is able to secure the assistance of a prominent Supreme Court practitioner.  Amicus briefs that offer new legal arguments, highlight impacts of a decision on interests shared by non-parties and support an inadequately represented party are generally regarded as helpful.47 

Many organizations that regularly appear as amici point to “the frequent citation of amicus briefs in Justice’s opinions” as support for the inference that “the [U.S. Supreme] Court often finds such briefs helpful.”48  For example, in 2005, the Court relied extensively on amicus briefs from various professional and government organizations in deciding to prohibit the use of capital punishment against persons who were under 18 at the time they committed their capital crimes.49  In fact, the majority's reliance on amicus briefs was so pronounced that one of the dissenters castigated the majority for "look[ing] over the heads of the crowd and pick[ing] out its friends."50  In addition, it is widely believed that the Court’s 2003 decision upholding the consideration of racial diversity in a law school admissions policy was significantly influenced by the numerous amicus briefs filed in support of the program by “major American businesses” and “high ranking retired officers and civilian leaders of the United States military,” all attesting to the importance of “exposure to widely diverse people, cultures, ideas, and viewpoints.”51

However, the limited role of the amicus curiae places significant constraints upon the use of the amicus vehicle as a strategic option, and legal aid advocates must always consider whether direct initiation of litigation (or formal intervention in pending litigation) better serves their clients’ interests.  For example, because amici lack formal party status, it is well-settled that an amicus may not, on its own: appeal a lower court judgment; seek rehearing or other discretionary review; broaden the scope of the remedy or seek relief not requested by the parties; or (generally) obtain attorney fees and costs.52  Advocates who become aware of significant cases at the trial level should consider whether intervention in the litigation is the most appropriate means to protect their clients’ interests, particularly if no current party to the litigation apparently is motivated to protect those interests or to appeal an adverse judgment.53

1.2.G.4 Practical Considerations

Watchful legal aid advocates will discover significant opportunities to advance their clients’ interests in the context of litigation between other parties.  Legal aid attorneys successfully have provided a voice for their clients through amicus appearances in important cases involving bankruptcy, consumer protection, civil rights, housing, and social security issues.54 Counsel who seek to participate as amici in appropriate litigation should collaborate as closely as possible with the party to be supported in order to coordinate briefing and argument strategy.  All amicus advocacy should be done, with appropriate retainer agreements, on behalf of a current client or clients who have a stake in the outcome of the case at issue.  Often the actual “amicus” is an organization or association with goals or missions relevant to the issues being litigated, and the legal services advocate serves as counsel to the amicus organization.55 Where the legal services organization itself carries credibility with the court, it may appear as amicus in its own right.56

Advocates who are attuned to the possibilities of amicus participation may realize some significant corollary benefits for their general practice.  Regular monitoring of other cases raising issues of significance to clients will certainly increase awareness of the opportunity (or perhaps the necessity) for advocacy on those issues in a variety of forums.  Amicus participation also can be a catalyst for greater networking and collaborative efforts with advocates in both the private and public interest sector.  Counsel who regularly consider the opportunities and possibilities of amicus advocacy also will be more likely to obtain an advantage in their own litigation by inviting the participation of influential organizations and allies to serve as their clients’ amici in appropriate cases.

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Updated 2013 by Jeffrey S. Gutman