Chapter 1: Preparing for Litigation

Updated 2013 by Jeffrey S. Gutman

Litigation can be a powerful tool for solving problems for clients. It can also be expensive, protracted and, ultimately, unsuccessful. Other tools, such as legislative and administrative advocacy, community education, direct action and use of the media, should always be considered along with litigation options. Before filing suit, the lawyer must first determine that a lawsuit is the appropriate strategy, or one of several strategies, for solving the client's particular problem or attaining a specific goal. The purpose of this MANUAL is to assist legal aid lawyers in assessing and exercising the power of litigation most effectively.1

Updated 2013 by Jeffrey S. Gutman


1.1 Introduction

Updated 2013 by Jeffrey S. Gutman

For most public interest and legal services organizations, the decision whether to engage in litigation and which cases to pursue is the product of strategic planning. Planning benefits from an understanding of the history, trends, successes and limitations of the practice of public interest law.1 Professor Deborah Rhode describes such practice as "at mid-life" and her recent survey of public interest organizations offers compelling insights necessary for such an understanding.2 Public interest law, once identified with progressive causes, but now embracing conservative ones as well, emerged from the "test case" strategy of the NAACP Legal Defense and Educational Fund in an era in which the federal judiciary was sympathetic to civil rights claims, government agencies could be changed through public law litigation and the challenges to seemingly clear injustices resonated with broad segments of the American people. In hindsight, litigation victories by public interest organizations were relatively easy to achieve as the facts were often starkly presented and favorable precedent developed in the areas of standing, civil rights, judicial review, redressability and attorney's fees. 

By the 1980s, a more conservative judiciary was less receptive to the sorts of claims advanced in the 1960s and 1970s and deregulated federal agencies were less receptive to efforts by advocates in the environmental, consumer, anti-poverty, and labor movements. The difficulty the progressive movement had in building on its early successes resulted in a more defensive orientation aimed at trying to minimize the erosion of those advances.3 It also led to a critique of public interest law by those arguing that litigation, once seemingly successful, was not well suited to progressive reform.4 Instead, the changing environment was favorable to the growing conservative public interest movement which often skillfully used litigation to advance its aims.5 In the view of progressive critics, litigation-oriented public interest law diverted resources and energy from other forms of advocacy more likely to achieve deeper and more substantive progress.6

As reflected in Professor Rhode's empirical study, there is a well-established recognition of the complexity of social problems and the limitations of litigation as a means for addressing them.7 Litigation requires considerable resources and there is substantial competition among growing numbers of public interest organizations for those limited resources.  Important limitations on some legal services organizations were imposed by the Legal Services Corporation in the 1990s.8 Significant retrenchment in legal doctrine that had once favored progressive causes, such as justiciability, private enforcement and attorney's fees, each covered in this MANUAL has dimmed the prospects of success in progressive public interest litigation.  Even when lawsuits are successful, enforcement on the ground is often difficult as state actors are often resistant to change.9 The result has placed progressive public interest law at a crossroads.

There is tension between a recognition of the limitations of litigation and the relative accessibility and familiarity of the courts as a forum for addressing social problems.  Similarly, there is an understanding that alternative means of advocacy may be more effective than litigation, but such efforts are often complex and beyond the skill sets of many lawyers.10 The empirical data suggests that many organizations have adapted accordingly. Generally, compared with groups in the 1970s, the public interest law organization of today are relatively smaller, and staffed with higher proportions of non-lawyer professionals.11 This suggests that growing numbers of smaller organizations are increasingly specialized in niche areas, have developed substantial expertise in these narrower areas and employ the skills of both lawyers and other professionals to advance their agendas.  The means by which they do so and their prospects of success (and funding) are not uniform across subject matter.  For example, the need to address environmental harm and gay rights has considerable public support and has met with some litigation success.  Coalition building and fundraising is relatively easier in these areas.  In contrast, segments of the public are unsupportive, if not hostile, to advocacy for less popular causes, such as those involving immigrants and prisoners, where powerful and successful opposing organizations are very active.12

Professor Rhode's survey showed that public interest organizations, progressive and conservative, have, since the 1970s, continued to devote a significant amount of time to litigation, but that proportion has declined.  Relatively more time is devoted to legislative work, community education and coalition building.13 For some, litigation is pursued not because there is an expectation of victory, but to limit loss, focus public attention on a subject or to develop momentum for legislative change.  For many organizations, then, litigation is part of a broader advocacy campaign, frequently conducted with coalition partners and community organizations.14 These efforts are fraught with potential challenges, from funding the project to managing the often competing needs and expectations of partner groups.15 Funding issues have led to creative solutions, like teaming with pro bono private counsel, other public interest organizations, public interest law firms and law school clinics,16 but group efforts by their nature require management and ongoing consultation.17 Surmounting these challenges requires careful and creative strategizing with clients and consideration of potential assets, such as boards of directors, pro bono resources, community and other partners and the preferences of funders. 

Professors Rhode and Cummings offer important lessons for analyzing the place of litigation in this strategy:

A central theme is that the effective use of litigation requires a strategic analysis of the forces that shape its outcome, including organizational capacity, the likelihood of success on the merits, the challenges of enforcement, and the possible political responses.  This strategic analysis should be informed by two considerations.  The first relates to how lawyers can maximize the political impact of litigation.  Litigation typically works best when it is strategically embedded in broader political campaigns that help define litigation goals and enforce legal mandates.  The second consideration involves which lawyers are most capable of bringing litigation in different circumstances.  The way that legal groups are structured affects the content and scope of their litigation dockets . . . .18

Each public interest organization and legal services office considering litigation, particularly impact litigation, must carefully evaluate the organization's goals and priorities, the needs of its clients and its capacity to manage the litigation. It must identify the client’s goals and analyze whether litigation is a strategy that may achieve those objectives.  The organization must assess whether other organizational priorities may suffer if resources are devoted to litigation and what the impact of either a victory or a loss might be.  It will need to answer the following basic questions:

  • What are the client’s goals?
  • Who has the power and resources to provide what is desired?
  • What will cause the person or entities to do what needs to be done?
  • How will the organization achieve its client’s goals?
  • What resources will be required?
  • Can other organizations meaningfully and helpfully participate in the effort?
  • When does the organization need to get results?
  • How long will alternative methods for achieving the client’s goals take?
  • What are the benefits and risks involved in potential strategies?
  • How will you know when it has succeeded or failed?

Only when these questions have been carefully considered and provisionally answered can you be confident that you are providing the best advocacy for your client. If, based on your planning assessment, litigation is a viable strategy, additional and somewhat more technical questions must be asked.  Many of these questions will be addressed later in this chapter:

  • What are the capacities and limitations of your firm or organization?
  • Who will the client or clients be?
  • What will your claims be?
  • On what law will you rely?
  • What specific claims for relief will you make?
  • In what forum will the suit be filed?
  • How will the lawsuit be staffed and financed?

Before addressing these questions, we turn next to a consideration of the alternatives and complements to litigation.

Updated 2013 by Jeffrey S. Gutman

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 Act/3/, 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. Maram/6/ 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 clients/9/ may 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 litigation/14/ 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 court/27/ 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.

____________________________________________________________________________________________________

1. See Stephen Bingham and Luna Yasui, The Legal Barriers to Employment Project - a New Model, 43 Clearinghouse Review 4 (May-June 2009)

2. Amber W. Harding, Case Note:  In from the Cold: Making Homeless Shelters Accessible to People with Disabilities in the Nation's Capital, 43 Clearinghouse Review 84 (May-June 2009).

3 D.C. Code §§ 4-751.01, et seq.

4. Antonio Hicks, Strength in Numbers: Legal Advocates and Community Organizers Partner to Fight Foreclosures, 43 Clearinghouse Review 69 (May-June 2009). 

5. John Bouman, Growing the Toolbox: Diverse Strategies for Public Interest Lawyers in Campaigns to Expand Access to Health Care for Low-Income People, 43 Clearinghouse Review 173 (July-Aug 2009).

6. Memisovski v. Maram, 2004 U.S. Dist. LEXIS 16772, 2004 WL 18783312 (N.D. Ill. Aug. 23, 2004).

7. Some administrative action, however, may have preclusive effect. See Chapter 3.4 of this MANUAL.

8. See 45 C.F.R. § 1612  (restrictions on legislative and administrative rule-making activities).

9. Restricted programs are expressly permitted to “advis[e] a client of the client’s right to communicate directly with an elected official.” 45 C.F.R. § 1612.5(c)(6).  With narrow exceptions, they may not attempt to influence the passage or defeat of legislation.  45 C.F.R. § 1612.3.

10. For further advice on the use of media, see Patricia Bath, Elizabeth Arledge and Joe Surkiewicz, Using the Media, 39 Clearinghouse Review 458 (Nov.-Dec. 2005).

11. See, e.g. E Advocate, Social Media Advocacy: Five Influential Steps (2011).

12. LSC-funded attorneys may not conduct or support training that advocates a specific public policy. 45 C.F.R. § 1612.8.

13. LSC regulations prohibit attorneys in LSC-funded programs from grassrootslobbying, 45 C.F.R. § 1612.4, engaging in public demonstrations or civil disturbances during working hours, 45 C.F.R. § 1612.7, or organizing, 45 C.F.R. § 1612.9.

14. See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743 (2000).

15. Kenneth Jost, The Amicus Industry: Conservatives Catch Up with Liberals in Getting the Attention of the Supreme Court, California Lawyer, Oct. 2001, at 40.  See also Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc'y Rev. 807 (Dec. 2004).

16. For an extensive discussion of the role of the amicus curiae, and for examples of its application to legal services advocacy, see Gary E Smith & Beth E. Terrell, The Amicus Curiae: A Powerful Friend for Poverty Law Advocates, 29 Clearinghouse Review 772 (Nov.-Dec. 1995).

17. See Samuel Krislov, The Amicus Curiae Brief From Friendship to Advocacy, 72 Yale L. J. 694, 695-96 (1963); Funbus Systems Inc. v. California Public Utilities Commission, 801 F.2d 1120, 1125 (9th Cir. 1986) (partisan advocacy by amici is “perfectly permissible”).

18. See S. Ct. R. 37; Fed. R. App. P. 29.  In 1997 the Supreme Court added a provision requiring all amicus briefs to disclose (1) whether counsel for a party authored any part of the brief and (2) every person or entity, other than the amicus and its counsel, that made a monetary contribution toward the preparation of the brief. S. Ct. R. 37.6.

19. Fed. R. App. P. 29.

20. Id.

21. Id.

22. Kearney & Merrill, supra note 14, at 760.  As a result, parties represented by experienced lawyers in the Supreme Court rarely refuse consent for leave to file an amicus brief. Id.  See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315 (Winter, 2008) (arguing for a broad standard for accepting amicus briefs).

23. See United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D. N.Y. 1991) (denying leave to file an amicus brief after consideration of the Rule 29 factors).

24. See Krislov, supra note 17, at 711.

25. These are sometimes called “Brandeis briefs,” after a famous turn-of-the century filing by future Supreme Court Justice Louis Brandeis, who urged support of a law limiting women workers to ten hours per day by packing his brief with sociological data about the negative effect of excessive hours on workers’ health.  Muller v. Oregon, 208 U.S. 412 (1908).

26. Lane v. First National Bank, 871 F.2d 175 (1st Cir. 1989). See also World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3 (5th Cir. 2009), Zango, Incorporated v. Kaspersky Lab, Incorporated, 568 F.3d 1169, 1177 n.8 (9th Cir. 2009), Riverkeeper, Incorporated v. Collins, 359 F.3d 156, 163 (2d Cir. 2004); Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186 (2003).

27. See, e.g., Service Employees Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir. 1994); McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir. 1991).

28. E.g., Continental Insurance Co. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 985 (8th Cir. 1988) (en banc); Preservation Coalition Inc. v. Pierce, 667 F.2d 851, 861-62 (9th Cir. 1982); Consumers Union v. Federal Power Commission, 510 F.2d 656, 662 n.9 (D.C. Cir. 1974).

29. Hamilton v. Madigan, 961 F.2d 838, 841 n.6 (9th Cir. 1992).

30. Resident Council of Allen Partway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1049 (5th Cir. 1993); Preservation Coalition, 667 F.2d at 862.  Courts also will consider whether all parties have had a fair opportunity to brief the issue. Continental Insurance, 842 F.2d at 985.

31Service Employees Union, 35 F.3d at 487.

32. Continental Insurance, 842 F.2d at 985; Consumers Union, 510 F.2d at 662; Platis v. United States, 409 F.2d 1009, 1012 (10th Cir. 1969).

33. Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n.l (9th Cir. 1970).

34. Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994); General Engineering Corp. v. Virgin Islands Water and Power Authority, 805 F.2d 88, 92 n.5 (3d Cir. 1986); American Meat Institute v. Environmental Protection Authority, 526 F.2d 442, 449 (7th Cir. 1975) (court “required” to consider jurisdictional issues raised by amici).

35. See, e.g., United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1375 n.4 (2010).

36. See, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion); see also Kearney & Merrill,  supra note 14, at 745, n.5 (collecting cases).

37. Helvering v. Gowran, 302 U.S. 238, 245 (1937) (emphasis added).

38. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994); see also DELTA v. Humane Society, 50 F.3d 710, 712 (9th Cir. 1995).

39. S. Ct. R. 37.3.  

40. See, e.g., Ninth Cir. R. 29-1.

41. See, e.g., Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc) (legal services advocate permitted to file amicus brief on the merits and to participate in oral argument after filing brief in support of successful petition for rehearing en banc).

42. S. Ct. R. 28.7; Fed. R. App. P. 29.

43. The Supreme Court does not favor “divided argument,” S. Ct. R. 28.4, and counsel for the parties in cases before the Court rarely agree to share their argument time with amici.  See Smith & Terrell, supra note 16, at 780.

44. For an extensive empirical analysis of the influence of amicus briefs upon Supreme Court decisions, see Kearney & Merrill,  supra note 14, at 828-30.

45. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 Rev. Litig. 669 (Summer, 2008).

46. Id. at 688-700.

47. Id.

48. Id. at 745 (Court made reference to an amicus brief in nearly 30 percent of decisions, in cases where at least one amicus brief was filed, over a fifty-year period).

49. Roper v. Simmons, 543 U.S. 551 (2005) (repeatedly referring to various amici and citing their briefs). 

50. Id. at 617 (Scalia, J., dissenting). 

51. Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003) (specifically citing numerous amici briefs in support of the affirmative action policy).

52. Smith & Terrell, supra note 16, at 783-87.

53. Id. at 787-88.

54. Id. at 787 & n.152 (listing examples).

55. Id. at 792 & nn.192-94.

56. Id.  Counsel should of course obtain approval of the board of directors before formally involving the legal services organization itself in any litigation.  LSC-funded attorneys may not participate as amici in class action litigation. 45 C.F.R. § 1617.

Updated 2013 by Jeffrey S. Gutman


1.3 Factors for Strategic Consideration

Updated 2013 by Jeffrey S. Gutman

As your office considers the possibility of litigation, it will need to consider who the client is, the client’s goals, the capacities of the organization, available resources and time considerations, as well as who can provide the relief that the client seeks.

1.3.A.  Who Is Your Client?

 Part of the lawyer’s job is deciding who will be the client.  A person who walks into your office with a grievance will not necessarily become your client in a lawsuit.  In individual matters, questions may arise as to who the client is: The parent or the child? The leaseholder or the family member barred from the property? The guardian or the ward?  These issues and potential conflicts must be addressed at the outset through careful legal, factual, and, occasionally, ethics research.

Lawyers generally, and legal aid lawyers in particular, need to think carefully about not only which issues are suitable for litigation, but also which clients will best present those issues as parties to litigation.  The lawyer has some flexibility in deciding who the client will be.  The lawyer may seek clients and not simply wait for individuals to ask for help.  For example, when the lawyer knows that a wrong is about to occur or has been occurring, the lawyer may seek out people who want to challenge it./1/  This may take the form of public education about the issue or may involve more actively contacting potential clients through networking with organizations and client groups./2/

Before accepting someone as a client in potential litigation, issues of standing, ripeness and mootness, discussed in Chapter 3 of this MANUAL, must be considered.  Minimizing standing and mootness problems may justify retaining multiple plaintiffs.  Yet, representing more than one person may create conflicts, both ethical and practical.  Depending on the nature of these issues, such hurdles may counsel in favor of a non-litigation approach.

In many situations, the client may be a community organization.  Working with a community organization, especially in the context of tackling systemic issues, has many advantages.  The community group may have its own resources to contribute to the advocacy strategy.  The group may lend financial and volunteer support, credibility, networking, and potential plaintiffs in any litigation.  Most importantly, the group may understand the importance of the issues at hand and the social forces that have created the problem and can lead to its solution.  The involvement of a community group can also ensure that attorneys advance the litigation in accordance with community needs.

Working with organizational clients involves special considerations./3/   Most important, the attorney and the group must agree on who speaks for the group. Counsel should also understand whether the group speaks for the community or constituency at large or only for its particular members or leadership.  The attorney must have open communications with the group and its leadership so that there is an understanding and agreement on the respective roles of attorney and client.  The institutional interests of the organization may diverge from the desires of individual members of the group.  The retainer agreement must incorporate all elements of the attorney-client relationship, and should spell out the mechanism by which the decisions of the group will be made and conveyed.  While the retainer may specify the name of an individual member of the group, the retainer should state who speaks for the group in case the named individual leaves the group.  The attorney and group must agree on the advocacy approach and on determining whether the objectives have been achieved, whether through litigation, settlement, or other means.

The retainer agreement is the blueprint for the relationship with the client.  In addition to including any language mandated by the state bar or legal services program, the retainer should anticipate the potential attorney-client relationship problems that can arise during litigation.  The respective responsibilities of the attorney and client should be discussed.  The grounds for termination of the attorney-client relationship and how such termination will be handled, costs and fees, including attorney’s fees, and settlement offers should be addressed.  A retainer should also warn a client that he or she will need to report any monetary awards received as a result of litigation and any attorneys' fees awards as income for federal tax purposes.  Some attorneys include language explaining the typical time frame for litigation.

In bringing a class action, retainer agreements and conversations with the class spokespersons must make clear that the lawyers’ responsibilities are to all class members, not just the named plaintiffs.  For example, in challenging mass evictions and proposed demolition of housing, be clear about the extent to which counsel is representing people who want to stay, people who left but will not return, and people who are in need of the housing and do not want the property demolished.  If potential conflicts are foreseen, or if those conflicts already exist, the attorney may choose to represent one of the subgroups and recruit private or other nonprofit counsel to represent other subgroups.  A conflict of interest with the local legal services office is often one of the criteria that the local office uses for placing a case with pro bono counsel.

The lawyer should not simply use the office’s standard retainer agreement without ensuring it meets the needs in the contemplated case.  While such agreements can serve as a model, they may need modification.  These agreements must be explained carefully to the client(s) and a memorandum of that conversation should be drafted and kept in the case file.

1.3.B.  What Are Your Client's Goals?

The answer to this question will shape the course of your advocacy strategy as certain approaches will be better than others in achieving clearly identified objectives.  In many cases, a client will need to define these objectives in terms of solving the immediate or individual problem, or in terms of solving deeper systemic problems that have manifested themselves in what has happened to the particular client.  Effective interviewing and counseling is necessary in order to define problems and objectives.  The lawyer must neither defer reflexively to the client’s definition nor unilaterally impose her own.  Failure to accurately and collaboratively define client needs and objectives can result in misdirected advocacy strategies, ethical headaches and client dissatisfaction.  For these reasons, initial client meetings must be carefully planned and considered.

The advocate and the client need to think initially not in legal terms but, instead, consider in a broader way the range of possible solutions and strategies for the problem the client has presented and the implications of each approach.  This avoids prematurely selecting litigation as the strategy and inappropriately allowing formulaic ways of requesting relief to limit unnecessarily the goals of the advocacy.  Focus first on the desirable outcome and not merely what is believed is attainable.  Litigation may not achieve all that is desirable.  Other approaches may achieve much of what is sought more quickly and less expensively, potentially with less risk to the client or others in similar situations, or with less risk of creating a negative precedent or provoking negative legislative or administrative responses that could undermine the client’s goals.  If such alternatives are not feasible or successful, then more narrowly focus on what is legally attainable after completing the legal research and fact investigation.

In some cases a client will have a clear view of what strategy to employ, and in those situations the lawyer’s job is to do the technical, professional analysis and work necessary to competently pursue the matter in accordance with the client’s wishes.  In other situations, the client has limited expectations or understanding of the possibilities and the lawyer’s job is to counsel the client regarding options, implications and risks.  Part of the advocate’s job is to make sure that the client has a full picture of the kinds and extent of relief available as well as the potential approaches and obstacles in achieving them.  Do not begin any legal work on behalf of a client until you have a clearly defined understanding of the client’s concerns and objectives, a full discussion of the range of potential solutions and their pros and cons, and a written agreement on how to proceed.

What a client wants must be assessed with a measure of sympathetic skepticism.  The advocacy strategy and its potential for achieving the client’s goals will turn on the client’s situation and whether the client’s desires are, or may reasonably be, supported in existing law or policy or rational and logical extensions of such law and policy.  Thus, as the advocate begins work with a client, it is wise to develop a provisional legal or policy theory (discussed below), which will help define the bounds of the possible and influence your advocacy strategy.  It is also important to consider whether particular approaches may have unintended consequences for the client.  For example, depending on the circumstances, a client who must rely, or anticipates needing to rely, on needs-based public benefits for subsistence, may ultimately be harmed by a financial recovery.  In some cases, program beneficiaries may get along fine if they are ineligible for benefits for a short time, but the loss of some types of benefits may mean a long-term loss that could jeopardize the client’s well-being or stability.  Individuals receiving needs-based public benefits generally have an obligation to timely report pending litigation and any recovery to the administrator of the benefit program, and, in some cases, may need to assign some or all of their interests in a financial recovery.  In addition, advise your client on the impact of a potential financial or attorneys’ fees award.  Because the Supreme Court has ruled that settlement awards constitute income to the client, attorneys’ fees are also considered income and may be taxable to the client./4/  In these cases, the client must be notified that income and any fees generated are taxable income for federal income tax purposes and must be reported.  Every situation has to be individually evaluated and the client made aware of potential consequences and strategies to mitigate loss of needed assistance so that the client can make a fully informed decision on how to proceed.  This may counsel against litigation, or it may inform the remedies sought in the case.

1.3.C.  What Are the Capacities and Limitations of Your Firm or Organization?

The extent of any potential advocacy effort is always circumscribed by the capacities and limitations of the firm or agency.  The principal limitations are resources, which consist of staff time and funds available for advocacy-related expenses.  Legal aid firms typically are engaged in a constant and never-ending institutional struggle to evaluate and satisfy the advocacy needs of their clients with extremely scarce organizational resources.

Many legal aid organizations are funded, at least in part, by the federal Legal Services Corporation (LSC).  In 1996, Congress enacted a series of sweeping restrictions,/5/ subsequently codified in LSC-promulgated regulations, which limit the range of activities in which attorneys employed by LSC-funded programs may engage./6/  These restrictions include, for example: class action litigation; legislative and administrative advocacy; representation of aliens and prisoners; “welfare reform” advocacy; abortion-related advocacy; and redistricting advocacy./7/  Not all of these restrictions were new. Congress and LSC had long limited some of the advocacy which LSC grantees could undertake using LSC funds.  However, the 1996 changes not only added numerous subjects to that list, but also extended many of those limitations or prohibitions to any funds used by the grantee./8/

The LSC regulations, which are subject to changing political currents/9/, must be read carefully.  Many of the restrictions are limited in their terms and permit attorneys’ specific actions (sometimes using non-LSC funds) that fall within the scope of the general restriction./10/  An in-depth analysis of all the restrictions is beyond the scope of this MANUAL.  However, the restrictions do not prevent “impact advocacy” either through litigation or other means of legal representation.  Many significant legal changes have come about through the vigorous litigation of an individual client’s claim (or a group of clients’ claims): the setting of a legal precedent, a change in the law, or the obtaining of specific injunctive or declaratory relief, including broad prospective relief./11/  Class-like relief may be available in declaratory and injunctive actions on behalf of an individual, group, or institutional plaintiff./12/  Throughout this MANUAL, we endeavor to point out obvious issues regarding the LSC restrictions, but assume that attorneys in LSC-funded programs are cognizant of the entire regulatory scheme and its implications for their advocacy.

In addition to prohibiting certain forms of advocacy, these restrictions may counsel against the LSC-funded organization taking a certain case as a strategic matter.  In some instances, for example, where the appropriate advocacy strategy is class action litigation, ethical obligations to the client may require recruiting a non-restricted attorney to handle the case.  The point here is that advocates in LSC-funded programs must be creative, prepared to adjust their strategy in light of the restrictions, counsel their clients on these limitations, and refer them elsewhere if appropriate.

1.3.D.  What Resources Are Available?

As part of the initial planning stages of the advocacy, prepare a budget that covers both the time and staff resources and financial resources necessary to conclude the project.  If the plan is to conduct litigation, it should include an estimate of the time and staff necessary to draft and research motions, interview witnesses, review documents, conduct discovery and litigate at trial.  The financial estimate should include fees and costs, such as for depositions, transcripts, experts and witnesses.  If your office is raising funds for litigation, translate the time and staff resource requirements into a dollar figure for salary and overhead.

It can be easy to accept a case and commence litigation under the assumption that the case will settle or reach a quick conclusion.  In fact, a legal services lawyer often brings challenges to an agency’s actions where the facts are not in dispute and only a legal issue is presented.  But the result may not always be as expected.  The office should know how much it would cost to pursue the case to completion.  The possibility of appeal should be considered.  You need to be as clear as possible regarding how far your office can carry the legal strategy./13/

If your agency cannot afford to bring a case that will have broad social impact, the case may be a candidate for non-litigation approaches or obtaining litigation funding.  Foundation and private supporters may fund litigation if the litigation is understood to be part of an overall strategy for obtaining an important community objective or protecting a vulnerable population, and litigation is the best tool to achieve a well-articulated goal.

Another way to obtain financial resources is to partner or co-counsel with a private law firm./14/ Often the legal services program can provide the substantive expertise, and the law firm can contribute litigation and trial experience and cover ongoing litigation expenses.  In-kind assistance such as copying, secretarial and paralegal support for this litigation can free up program resources for use on other matters.  Civil rights groups and national nonprofit legal organizations such as the National Women’s Law Center, the American Civil Liberties Union, or AARP can provide expertise and in-kind assistance, media campaigns, research, and staffing resources.  Organizations are careful stewards of their resources and work on cases that further their mission.  Your relationship with a national organization may be one of full partnership or co-counsel, or it may consist of getting help in discrete portions of the litigation.  As with any other relationship formed to advance your litigation, clear communication of expectations and responsibilities is critical and should be confirmed in a co-counsel agreement, memorandum of understanding, or letter.

If your agency cannot afford the litigation, then you should not and cannot bring the litigation.  You must explain to the client the costs of the litigation and the risks of bringing underfunded litigation—making bad law and getting a bad decision for the client.  Clients often have no idea of the costs of litigation and have notions distorted by the cultural mythology about lawyers and how lawyers are paid.  They may think that they will obtain millions of dollars in damages and that you will receive a portion, or they may care so passionately about an issue that they may push you to commit resources you do not have.  Either way, your job requires understanding the reality of the economics of litigation and giving your assessment to your client.  You owe it to your client to make this determination promptly so the client can explore other possible sources of representation or advocacy before any legal or practical deadlines occur.

1.3.E.  Who Can Provide the Relief Sought?

Once you and your client are reasonably clear about the client’s goals, you must decide who is able to provide the relief sought or is able to direct that it be provided.  Consideration of this question deserves some creativity.  The relief may come directly from a private individual or local agency, but there may be one or more public agencies—federal, state, or local—with the authority to order that the relief be provided or with the power to provide it directly.  Thus, a local housing authority may be subject to direction from the U.S. Department of Housing and Urban Development (HUD); a nursing home from the U.S. Department of Health and Human Services; a private landlord from local code enforcement officials and from the mortgagee.  You should identify all potential sources of relief.  This will help illuminate the viability of non-litigation approaches to resolution and help narrow the range of particular parties in litigation.

With respect to litigation, each party that may play a role in providing essential relief should be evaluated.  An attempt to get relief that costs money from a local housing authority could include HUD because HUD’s resources might be needed.  A lawsuit seeking relief that involves financial consequences for a private landlord might include the mortgagee.  However, the advantages of bringing in an additional party must be weighed against the disadvantages.  For instance, suing HUD may delay the litigation and make informal advocacy with HUD impossible.  As in all other decisions, you must work with the client to determine what approach best meets the objectives of the particular litigation.

1.3.F.  Time Considerations

Your advocacy strategy will be significantly influenced by the timing needs of your client and the estimated time needed to accomplish the client’s goals through varying strategies.  A reality of legal services practice is that the need for our services is greater than what we can provide.  You must estimate the time you are able to spend on the matter.  You must also have a clear sense as to the timetable by which your client needs or wishes relief.

You will need to carefully and realistically counsel your clients on the time likely to be required to advance their goals.  Clients are understandably dissatisfied when matters take longer than expected.  Reasonable expectations must be explained and decisions made on advocacy strategies with the client’s needs in mind.  Do not accept a case or commence litigation or any other form of advocacy if you do not have a plan for staffing the matter and a realistic estimate of the time to pursue it.

If you have decided on a litigation strategy, keeping adequate time records is an important aspect of managing the litigation.  You may need to keep contemporaneous time records to comply with legal services program rules or to obtain attorney’s fees from the court.  Good time records can be useful should you ever have to move for or defend against sanctions.  Pre-filing investigative time should be recorded as well.  These records can also be considered in determining the staffing needs of your office, drafting funding proposals, and setting office priorities.  Many offices are now using software that captures and analyzes time devoted to cases.  

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1. Although Legal Services Corporation (LSC) rules place restrictions on solicitation of clients, provision of legal information and outreach are permitted. 45 C.F.R. § 1638.4.

2. An American Civil Liberties Union (ACLU) attorney’s letter soliciting a potential litigant came within the zone of First Amendment protection for associational freedoms where the purpose of the solicitation was to advance the civil liberties objective of the ACLU and not to derive financial gain.  In re Primus, 436 U.S. 412, 427-32 (1978); see also NAACP v. Button, 371 U.S. 415, 428-30 (1963).

3. LSC-funded programs seeking to represent a group or organizational client using LSC funds must ensure that the group meets certain financial eligibility criteria. 45 C.F.R. § 1611.6.

4. Commissioner v. Banks, 543 U.S. 426, 430 (2005); see also U.S. Department of Treasury, IRS Publication 525, Taxable and Nontaxable Income 31-32 (2011).

5. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, §§ 501-509, 110 Stat. 1321-51 to 1321-59; see also 42 U.S.C. §§ 2996 et seq. (the Legal Services Corporation Act).

6. See 45 C.F.R. pts. 1600 et seq. 

7. Id. Other areas of restricted practice include political activities, client solicitation, grassroots organizing, “fee-generating” case representation, criminal and habeas corpus proceedings, defense of evictions in certain situations involving drug activities in public housing, and cases involving assisted suicide, euthanasia, and mercy killing.

8. The 1996 restrictions were, and continue to be, the subject of significant constitutional challenges raised by various legal aid organizations, clients, and individual advocates.  See, e.g., Legal Aid Society of Hawaii v. Legal Services Corporation, 145 F.3d 1017 (9th Cir.), cert. denied, 525 U.S. 1014 (1998); Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001). In Velazquez the U.S. Supreme Court invalidated, principally on First Amendment grounds, one aspect of the restriction upon advocacy related to “welfare reform” measures and remanded the plaintiffs’ remaining claims.  In late 2004, the federal district court in Velazquez and a companion case, Dobbins v. Legal Services Corporation, upheld the facial validity of the 1996 regulations, but ruled that LSC had applied the restrictions imposed upon the use of non-LSC funds in an unconstitutionally narrow manner.  Dobbins v. Legal Services Corporation, 349 F. Supp. 2d 566 (E.D.N.Y. 2004), modified in part, 356 F. Supp. 2d 267 (E.D.N.Y. 2005).  The resulting preliminary injunction was vacated on appeal. Brooklyn Legal Services Corp. B v. Legal Services Corp., 462 F.3d 219 (2d Cir. 2006), cert. denied, 552 U.S. 810 (2007); see also Legal Aid Services of Oregon v. Legal Services Corporation, 587 F.3d 1006 (9th Cir. 2009) (affirming rejection of challenges to LSC statute). 

9.  The restrictions on receipt of attorney's fees were recently eliminated.  75 Fed. Reg. 21506 (Apr. 26, 2010) (amending 45 C. F. R. pts. 1609, 1610, and 1642).

10. For a thorough discussion of all the restrictions, see Alan W. Houseman and Linda Perle, What Can and Cannot Be Done: Representation of Clients by LSC-Funded Programs (CLASP 2001).

11. See, e.g., Raun J. Rassmussen, Affirmative Litigation Under the Legal Services Corporation Restrictions, 34 Clearinghouse Rev. 428 (Nov.-Dec. 2000); Gary F. Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy for Classwide Violations of Federal Law, 32 Clearinghouse Rev. 112 (July-Aug. 1998).

12. See Chapter 9 of this MANUAL.

13. For instance, if you know that your program cannot bring an appeal under any conditions, either for financial, staffing, or programmatic reasons, and pro bono appellate counsel is unlikely, a settlement offer might be evaluated very differently than if you knew that you would appeal an adverse decision.

14See Greg Bass & Jocelyn Larkin, Affirmatively Litigating: Cocounseling with Private Law Firms on Major Litigation, 42 Clearinghouse Rev. 605 (Mar.-Apr. 2009).

Updated 2013 by Jeffrey S. Gutman


1.4 Crafting and Preparing the Lawsuit

Updated 2013 by Jeffrey S. Gutman

As part of the process for deciding upon the best advocacy strategy, the attorney will have preliminarily assessed the legal and factual bases for the claims that the client wishes to assert.  If counsel has determined that litigation is the most appropriate vehicle for advancing these claims, the process of crafting and preparing the lawsuit will begin in earnest.  The key to this process is developing the core legal theory or legal theories to be presented to the court and marshaling the factual evidence needed to support these theories.

1.4.A. Developing the Legal Theory

As the client describes the problems to be addressed, the attorney will begin analyzing whether the acts or omissions of concern violate any constitutional principles, laws or regulations, or federally approved plans guiding state action or common law norms.  As this analysis unfolds, consider what public or private entities or individuals are arguably responsible for the harm alleged.  In exploring which legal claims will be asserted in the lawsuit, it is useful to start with some preliminary legal brainstorming.  Make a list of the types of legal protections that may be infringed by the detrimental actions the client describes.

Be creative in developing a comprehensive list of possibilities. Chapter 5 of this Manual describes many potential claims in detail.  A helpful approach is to use a hierarchy of legal claims and, then, to apply it to each potential defendant in the case:

  • Is there a federal constitutional right or protection that a defendant is violating?
  • Is there a state constitutional right or protection that a defendant is violating?
  • Is there a federal statute or regulation that a defendant is violating?
  • Is there a state or local statutory right or regulation that a defendant is violating?
  • Is there a federally approved state/county plan that a defendant is violating?
  • Is there a federal, state or local common law right or norm that a defendant is violating?
  • Is the defendant engaging in action that violates the federal or state Administrative Procedure Act?

Do not prematurely disregard or discount potential claims until your legal research leads you to conclude that there is no basis for proceeding with such a claim.  Assemble and study each statutory and regulatory provision arguably implicated in the issue presented by your client.  Consider the plain meaning of these provisions, cross-referenced provisions, exceptions, and any indications of discretion afforded the potential defendant.

Next explore whether other courts have considered the legal claims you may raise, or similar claims.  Starting with your jurisdiction, examine relevant opinions from both federal and state courts.  However, be aware that reliance solely on computerized research tools will miss unreported cases or cases that have not yet been decided.  Research the database of Clearinghouse Review articles./1/ Check if the national support centers know of litigation relating to the issue the client is experiencing./2/  Consult with attorneys in the relevant practice area to determine whether the potential issue has been litigated and, if not, why not.

In examining what other courts have done, pay particular attention to potential barriers to enforcing the relevant constitutional provision, statute, regulation or plan and which potential defendants have asserted these defenses.  Consider who was named as defendants in these cases and what relief was sought. This MANUAL contains extensive discussions of many of these possible limitations, from the case or controversy requirements, to Section 1983, to immunity.  If you have identified particularly useful or interesting federal cases, and they are relatively recent, you should be able to access pleadings and briefs filed in the case through PACER, although there is a modest fee for doing so.  Counsel in these cases may also be a valuable source of both briefs and advice.

If your client does not need emergency relief, prepare a litigation memo setting out the legal claims, the strength of the claims, and the pros and cons of bringing specific claims.  Identify the applicable statutes and regulations and key cases.  Drafting the memo will serve as a useful device to refine your thinking, document your research, share with colleagues, convert into pleadings or briefs, and defend, if necessary, against a Rule 11 motion.  If you recommend using a new or novel legal claim, it is wise to discuss your research conclusions with a more experienced colleague or an expert in the practice area who may be located outside your program.  As the litigation proceeds, revisit this memorandum, but be open to considering other claims or approaches your initial research missed or which have surfaced as a result of discovery or other case developments.

After identifying the best legal claims for your client, meet with the client to explain both the opportunities and any barriers to prevailing on the claims.  Provide your assessment as to the advantages and disadvantages of each claim, the potential nature of relief as to each, and, if appropriate, the pros and cons of filing in alternative fora.  As discussed above, make sure that the client has a clear understanding of the nature of the claims, the client’s participation in discovery, the time considerations required, and the prospect of relief.  If litigation cannot provide all the relief sought by the client, counsel the client on whether this additional relief is available through another form of advocacy.  Clients may also have unrealistic expectations about the likelihood and extent of monetary damages, and they may not understand the implications of a monetary recovery on any needs-based public assistance upon which they may rely./3/  Discuss and document potential limitations, if not prohibitions, on monetary recoveries./4/

Finally, draft a paragraph that will serve as the core theory of the case -- the central defining idea that drives your lawsuit.  It should summarize, in a brief and persuasive way, the nature of the wrong committed and relief sought to remedy it.  Written in lay, rather than legal terms, this fundamental message may be repeated in the opening paragraph of the complaint, in a press release, or at the beginning of an oral argument.  This clearly defined motivating concept behind the lawsuit should remain the touchstone that guides the litigation.

1.4.B. Factual Investigation

Sound legal practice, as well as Rule 11, require counsel to engage in a reasonable factual investigation prior to filing a lawsuit.  The first source of information about the case usually will be the client.  There are many texts devoted to the art and practice of client interviewing./5/  The scope of this Manual does not permit a review of interviewing techniques. Suffice it to say that effective client interviewing is essential to the success of litigation.  A sloppy interview can lead to missed facts, omitted legal claims, litigation delays and worse.  Young attorneys should conduct their first few client interviews in the presence of a senior colleague prepared to give detailed feedback.  If you think a client’s problem will lead to a lawsuit, it is a good idea to have an experienced litigator present for one of the interviews with the client.

1.4.B.1 Your Client

Before filing the complaint, you will likely interview or review the facts with the client for several purposes and on several occasions.  At intake, your focus will be on obtaining an overview of the facts and legal issues to see whether the problem meets your program’s priorities, to ascertain the immediacy of the client’s need, and to determine if the client meets income and other program requirements.  At your first interview, it is good practice to tell the client that she can speak with you in confidence and that if there are facts the client does not want you to disclose, you will keep them secret.  Once eligibility for service has been established, you will need to conduct a detailed interview in order to establish an attorney-client relationship, complete a retainer and learn necessary facts so that you can conduct relevant legal research, investigate further facts, evaluate the merits of the case, and determine your case strategy.  This research may well require you to conduct additional interviews.  Use these opportunities to explore additional issues of potential legal relevance that your client may not have initially disclosed.  Make sure you understand the facts clearly.  During the pre-filing interview, review each factual allegation set forth in the complaint with the client to ensure it is complete and accurate.  Review all documents that the client may have that are relevant to these factual assertions.  These interviews also permit you to gauge the client’s demeanor and credibility.  If a client has cognitive problems or suffers from mental illness, for example, you can assess limitations on capacity and determine whether it is possible to proceed.  These interviews also offer an opportunity to ask about witnesses and others who may have encountered the same problem faced by your client.

Clients often do not understand why they have to tell their story repeatedly; they may feel that counsel are not listening or understanding them.  Thus, being clear about the purpose of the interview and letting clients know early that they will have to tell the same story several times can ease the attorney-client relationship.  You may also need to ask questions that upset or offend the client.  Use this as an opportunity to educate your client about why the questions are important and relevant.  If you establish that you are on the client’s team and are asking the kind of questions the judge or other side is likely to ask, the client will understand that you are trying to help./6/

At a pre-filing interview, ask the client to sign a formal written retainer or engagement letter.  Have the client sign releases to obtain information from health care providers, housing providers, schools, police departments, and other entities.  It is wise to request documents from these third parties early in your factual investigation.  Not only is there often delay in receiving them, but also when received, these documents may shed light on additional sources of information or lead you to reevaluate the strength of the client’s claim.

1.4.B.2. Informal Investigation

The goal of a pre-filing factual investigation is twofold.  First, you must understand the facts so that you can advocate most effectively.  Second, you can obtain evidence for trial or leads on information to request in discovery.  Evidentiary constraints should not restrict your informal investigation.  Although you should attempt to obtain the most credible form of information available by, for example, notarizing witness statements or locating original documents, obtaining witness statements containing hearsay or unauthenticated documents is acceptable.  You can deal with the evidentiary issues should they arise later in the litigation.  To do so, however, you will need to keep careful track of when, how, and under what circumstances you received particular information and documents.

The extent of a pre-filing investigation depends on the needs of the case, time restrictions, and your available resources.  You need to be flexible and creative in identifying sources of information other than the client.  When appropriate, and with the consent of the client, interview the family, associates, friends, the client’s coworkers and other relevant persons who may have information regarding the case.  Be mindful of, and comply with, you state's version of Model Rule of Professional Responsibility 4.2.   Such individuals may be indispensable sources of information and should be interviewed with an eye to obtaining detailed statements at the interview.  After completing the interview and preferably before leaving, prepare a handwritten statement in the first person and in the interviewee’s words, and present it to the individual to read and sign.  You can return later with a typed statement to be signed and, if necessary, notarized./7/  Whenever possible, the statements should be in declaration or affidavit form so that they may be used to support motions, such as motions for preliminary injunction, or to oppose motions for summary judgment.

Talk to other people affected by the challenged policy or practice.  Reach out to organizations likely to be allies and who may know others suffering from similar problems.  In a recent case challenging Medicaid co-payments, for example, plaintiffs’ lawyers printed 2” x 3” yellow cards explaining federal Medicaid rights and distributed thousands of them through ally organizations.  Since the cards included the legal aid office’s phone number, persons injured by the unlawful practice called for advice.  These calls presented a rich source of plaintiffs and facts.  Read newspaper and magazine accounts.  Examine relevant governmental or academic reports.  Students and volunteers can be very helpful in the early stages of investigation.  They can take photographs, call similarly situated individuals, and camp out in front of offices to interview people.

The Internet can be a valuable source of information.  If your office uses Lexis, Westlaw, or any other online legal or information service, consulting with your service representative about needed information is well worth the time.  You may find that some resources are available at no added cost.  Some resources targeted to non-attorneys may have information about businesses, corporations, investors, and owners.  You can also search dockets to identify other cases in which the parties, attorneys, and judges have been involved.  You can access a variety of legal aid list-serves usually by signing up with a national backup center and list-serves sponsored by national attorney associations, such as the National Association of Consumer Advocates and the Association of Trial Lawyers of America.  A quick post about a potential defendant may result in networking with an attorney who has handled a case against the same party and is willing to share discovery and strategy with you.

A potentially important source of facts may be those persons arrayed on the other side.  These may be staff of a housing authority, a state or county welfare agency, a school or juvenile detention facility, or a private or public employer.  The temptation is to ignore such people until after suit is filed, when discovery devices may be employed.  Usually, however, investigation should extend to the opposition prior to suit for several reasons./8/  The suit may dry up sources of information or create such hostility that impedes cooperation.  Information gathered prior to suit will help in drafting pleadings and framing theories.  Full investigation prior to suit will deflect motions for sanctions under Rule 11.  And, you may obtain information that will lead to a settlement.

Inquiries and investigation, pursued consistent with Rule 4.2, directed toward the opposition will sometimes meet with surprising success.  For instance, employees in a state or county agency may question or oppose policies that they enforce.  Prior to suit, they may be free and willing to meet and discuss those policies and make information or materials available.  Also, before litigation is filed, agencies may have ongoing relations or meetings with clients; during such meetings, relevant information may be disclosed.  Similarly, required or optional administrative hearings may offer avenues for obtaining information.  Some administrative procedures permit some measure of discovery.  Documents or witnesses may be subpoenaed by the hearing officer or the attorney, and there is typically an opportunity to review and copy a client’s file.  During the course of the hearing, government employees or hearing officers may be asked about or may disclose information regarding policies and their enforcement.  In such cases, it is useful to ensure the hearing is recorded.  At the same time, if you are too overt in seeking information to support future litigation, these employees may be less forthcoming and less willing to participate in pre-filing dispute resolution.  Openness versus subtlety is a strategy consideration during all stages of litigation.

Most states have sunshine laws or public record laws that provide full or limited access to agency records, including plans, communications and internal reports.  Indeed, many such records exist online in an agency website or electronic reading room. On the federal level, there is the Freedom of Information Act (FOIA)./9/ Apart from these statutory or regulatory provisions, formal requests or letters of inquiry may produce useful information that can help you draft the complaint. At the same time, the absence of responsive information may be potentially valuable. The disclosure of the absence of written policies and procedures governing the termination of benefits may form the basis of claims that this lack of written guidance violated both due process principles and the local administrative procedure act. If a FOIA request is ignored or documents improperly withheld, but are regarded as essential, a suit to enforce the Freedom of Information Act may be needed.  Prior to filing suit, it is often effective to send the draft complaint to the agency general counsel and again demand the documents requested.

In addition, many local and state government agencies must periodically report to the sources of their appropriations.  Federal and state oversight agencies may similarly audit or analyze the agency.  Such reports and audits can be enormously valuable in surfacing information regarding agency policies and critiques of them.  Careful advocacy with the monitoring agency or committee may lead it to inquire further and require the monitored agency to prepare additional reports.  Once data is obtained, the next step is analyzing it.  If you do not have facility with spreadsheets, mapping software, or other programs that can turn numbers into information, you may be able to use a graduate student as a volunteer or short-term consultant.  Local universities can be great sources of help for statistical, economic, and sociological analysis. Some professors have been willing to assign legal services case data analysis as a class or homework project.

Likewise, investigation directed toward related disciplines may be useful.  A housing case may be helped by literature or expertise from the fields of social work, architecture, or planning.  A welfare case may be assisted by persons who teach, write, or study in the social work or public health fields.  You may want your client to see a psychologist to evaluate psychological harm.  A corrections case may turn upon testimony or research from experts in corrections or criminal justice.  As attorneys, we tend to be narrow in training and perspective.  Other disciplines may yield theories for litigation, authority, and scholarship as well as expert witnesses.

Pre- or post-filing consultation with experts raises discovery issues./10/  Whether information relating to your expert is discoverable will turn largely on whether the expert will testify at trial.  If you have merely consulted with an expert in connection with preparing for litigation, information relating to the expert is discoverable only if permitted by Federal Rule of Civil Procedure 35(b) or if extraordinary circumstances are shown.

1.4.B.3. Organizing Factual Information

Organization of the facts and the file should begin as soon as you know that you will commence litigation.  Your system should be flexible enough to accommodate growth of the file.  The particular way that you organize your file will depend on its potential size, the type of case, your personal style, and your program’s use of computer case management tools.

Whatever organizational system you choose, you must be able to locate quickly information when you need it, and someone else should be able to find the information easily.  The latter is a critical piece of responsible lawyering—if someone has to take over the case from you or cover for you in your absence, your client’s interests must not be compromised.  Almost all federal litigation is substantial enough to require an index to the file as a whole and an index or master list of evidence. Software is available to help you track documents and evidence.

As you organize and create your file, keep in mind that you are organizing each of the following types of documents:

  • Pleadings
  • Correspondence (including e-mail messages)
  • Other court filings, such as motions
  • Records of telephone calls
  • Interview notes and other informal investigation
  • Discovery, including demands, responses, and the documents produced
  • Documents that your client supplies or you locate during investigation
  • Legal research
  • Other research
  • Time records

If you are unsure what system will work for you, using an accordion folder for most of these categories is a good place to start.  You can then create subdivisions with file folders for each motion, factual topic, or witness.  Correspondence and phone logs should be secured into a file to ensure that the chronology of the case development is preserved.  Use scanning technology to store facts in your computer.

Whether your program is restricted or not, you must keep accurate time records.  The biggest mistake attorneys make in obtaining attorney fees is to under-record time and to underestimate the time that they spent if they do not record it contemporaneously./11/  If your adversary accuses you of non-cooperation, ethical violations, or rule violations, accurate and detailed time records ensure that you will be able to document how your case time was spent.  Again, many vendors offer timekeeping software.

1.4.C. Impact, Law-Reform, and Test-Case Litigation

Your primary purpose in bringing litigation may be to get your individual client the relief to which she is entitled under the law. Or, you may have a much broader purpose.  You may want to ensure that the legal violation does not recur, to compensate past victims of the illegal action, or to change the law.  When the outcome of your case will affect large numbers of people, your suit may be considered impact litigation.  When the goal of your litigation is to change the law or the way the law is interpreted and applied, your suit may be considered law-reform or test-case litigation.

Bringing this type of litigation requires extra care and attention on several levels.  First, exploring uncharted legal territory or seeking to revisit and change existing precedent may implicate Rule 11./12/  Particularly diligent and documented legal research is required in such cases, especially because a prompt response to a Rule 12(b)(6) motion is likely to be required.  Such cases also require careful client counseling on the reasonable likelihood of success and appeal of adverse decisions.  The possibility of an adverse decision requires a careful assessment of whether the potential for such new precedent would worsen the legal landscape of your jurisdiction, thereby impairing the interests of clients, client organizations or other stakeholders.  The possibility of appeal requires consideration of the composition of the relevant appellate court.  If the court is regarded as hostile to the sort of claim your clients present, it may be best to consider bringing the case or encourage the bringing of the case in another jurisdiction, or pursuing the issue in another forum.  The likelihood of appeal also means the lawyer needs to assemble a solid appellate record.

Second, be sensitive to the approach taken to put the case together.  In some cases, you will bring test-case or law-reform litigation based on an issue that a client brings into your office; your client seeks a solution to his individual problem, but the resolution of the case will have broad impact.  In other cases, your program may identify an issue worthy of litigation, but have no client to serve as the plaintiff.  Such clients may not have yet been identified, they may be hesitant to serve as plaintiffs, or their individual claims have been mooted as a result of successful administrative advocacy.  If a case is certified as a class action under Rule 23, class representatives may need to be prepared to compromise their individual goals in developing case strategy or reaching a settlement, and this must be discussed with potential plaintiffs in advance of filing and seeking class certification.

The process of identifying potential clients and plaintiffs may implicate restrictions on soliciting clients, such as those contained in Model Rule of Professional Conduct 7.3./13/  Nonetheless, lawyers may inform potential clients of their rights./14/  Nonprofit organizations may solicit potential litigants to further their public policy goals./15/  By working with community groups you can generally avoid ethical or legal services restriction barriers to locating affected individuals and potential plaintiffs./16/  Nonetheless, care should be taken.  It is wise to consult your jurisdiction’s ethical rules and any state bar formal or informal opinions on issues relating to solicitation of clients.

Even when it is difficult to identify potential plaintiffs to challenge a particular law or practice, the legal aid lawyer should not forget the maxim “bad facts make bad law.”  Particularly when advancing a difficult or novel legal claim, unsympathetic clients or those perceived to be undeserving can reduce the chances of success. A classic illustration of this principle occurred in Lassiter v. North Carolina Department of Social Services./17/  Lassiter presented the question of whether due process required providing counsel to an indigent parent in a proceeding to terminate parental rights.  Given the number of termination proceedings that take place in states that did not provide counsel, selecting a client who appeared to be a victim of an uncaring bureaucracy would have been possible. Instead, the petitioner chosen to present the question was a convicted murderer who had no real hope of release from prison before her child became an adult and who had been provided counsel in an earlier proceeding.  The Supreme Court rejected her claim in a 5-to-4 decision; one member of the majority concurred, conceding that the question was extremely close. The answer might have been different if a more sympathetic client had been chosen./18/

In contrast, when attorneys sought to challenge the provisions of the Food Stamp Act enacted to eliminate unrelated members of a household from food stamp eligibility, they recognized the importance of a sympathetic client.  The lawyers chose as the lead plaintiff Jacinta Moreno, a farmworker forced by economic circumstances to share housing with nonrelatives.  The choice of plaintiff shifted the focus of the litigation from the propriety of seeking to eliminate hippies’ eligibility for food stamps to the unanticipated effect of the provision on the neediest potential beneficiaries. The plaintiff prevailed in the Supreme Court by a 5-to-4 margin./19/  Similarly, in the Lightfoot v. District of Columbia case, the lawyers recognized that pre-termination process does not depend on the underlying merits of the continued claim for benefits.  Nonetheless, they attempted to select plaintiffs who were substantively deserving of these benefits and who suffered demonstrated harm when they were terminated.  In addition, in selecting a plaintiff who had not yet been terminated, but who had a stake in the content of future termination rules, the plaintiffs’ lawyers selected a plaintiff who had been terminated in the past and had years of difficult experiences with the defendant agency.

Third, coordination with other legal aid programs, state and national backup centers, and other organizations concerned with the issue is important when you engage in test-case or law-reform litigation.  By definition, your case may affect a large number of people or may change the law.  Although you may be sure that your outcome is desired and your strategy a good one, you should ensure that you fully understand the implications of your litigation and that your approach does not conflict with other reform projects underway.  Similarly, in large pieces of litigation, you may be working with multiple co-counsel, amici, and clients.  You must coordinate and plan among co-counsel and others.  You should have written co-counseling agreements outlining who will be the lead counsel, what their duties will be, who has authority to make decisions, how regularly you will communicate through conference calls or meetings for strategy discussions and updates, who is responsible for covering litigation costs, and who is responsible for any attorney fee aspects of the litigation.

As noted above, legal services restriction regulations do not prevent the legal services attorney from engaging in law-reform or test-case litigation.  The regulations restrict certain activities and may alter strategic choices.  However, the creative attorney can still change and improve the system, the laws, the rules, and the practices that affect clients’ lives.  If you not only win your case, but also insist on a broader solution, the eviction case on which you go to court next week may be the vehicle for changing the way that the housing authority gives notices to all its residents.  You may file a case to obtain unemployment benefits for your client and change the definition of misconduct in your state.  The form of the litigation may be different, but the commitment, intelligence, creativity, and zeal of legal aid attorneys are needed to provide our clients with meaningful and effective representation.

1.4.D. Pre-filing Negotiation and Offers of Settlement

Most cases are resolved through settlement rather than through trial or judicial determination.  Failing to consider and prepare for settlement possibilities early in your planning is foolish. You must prepare your client for the settlement process during one of your initial meetings.  The client must understand the ultimate goal of the litigation, the risks in achieving it, and that there may be very good reasons to be pleased with less than what you are seeking in the complaint. You should explain to the client that what constitutes an acceptable settlement will change over time.  As new evidence is evaluated, the investment in the case increases, the assessment of risks changes, and the strategy of the defendants and actions they take may undermine or support claims.

Sometimes an attempt to settle a case before filing litigation can be very effective./20/  A demand letter accompanied by a draft complaint will get attention.  If time permits, you may also include a draft order or consent decree.  A settlement before filing is attractive to defendants who do not want negative publicity or a record of involvement in litigation.  It can be useful when the defendant wants to comply with the law but you have been unsuccessful in getting the issue to the attention of the person with the authority to make the change.  A pre-filing attempt to settle can be a chance to obtain informal discovery as you ascertain the defendant’s position and reasons for it. The disadvantages of a pre-filing attempt to settle are the loss of surprise, the possibility of the defendant rendering your claims moot, and the delay necessary to engage in pre-filing negotiations.  If these efforts result in the prospect of useful negotiations, protect your client's interest by drafting and entering into a tolling agreement to toll the statute of limitations during these talks.

Even where the adverse action seems to be final and from the highest authority, a formal request for settlement before litigation may be effective if it sets out the facts, clearly explains legal claims and how the defendant is violating the law, states with precision what you want the other side to do, and sets a clear deadline by which to take action.  If you state that your client will sue if a settlement is not reached by a date certain, you must be prepared to follow through.  If you make such a threat and do not carry it out, you will lose your credibility and adversely affect future negotiating strength.

A demand letter should be polite but firm.  It should make clear the strength of the case and be suitable to attach as an exhibit to the complaint or a motion.  The objective is to produce a letter that, when read by a judge, will evoke incredulity at the recipient’s noncompliance.  When time does not permit writing such a letter, a telephone call can accomplish the same result. Confirm the call later by letter. Even where the adverse action is taken deliberately, the demand letter—especially if coupled with a draft complaint—will send the message that your client has a capable, determined, and knowledgeable attorney who is about to sue.  This may initiate the involvement of your opposition’s counsel, who may be able to talk sense into your opponent or urge settlement efforts.  At the least, the letter and documents provided can serve as a starting point for post-filing settlement discussions.

___________________________________________________________________________________________________


1. Clearinghouse Review: Journal of Poverty Law & Policy is published by the Sargent Shriver National Center on Poverty Law.  Its website is www.povertylaw.org.

2. A list and contact information for the national support centers appears on the inside of the back cover of each Clearinghouse Review.

3. Note that for any given benefit program, income and asset limits, treatment of lump sums, and obligations of program beneficiaries to report and/or assign pending litigation recoveries, and the ability of the provider of benefits to claim a portion of recoveries, is typically governed by state requirements, except the SSI program, which is governed by federal law.  Analysis of the potential effect of a recovery and strategies to protect client access to needed assistance should be considered in advance of filing as it may affect client decision-making regarding the litigation and inform the determination of the relief sought.

4. See Chapter 8.3 and Chapter 9.1 of this Manual for discussions on damages.

5. See, e.g., G. Nicholas Herman & Jean M. Cary, A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009); David A. Binder, Susan C. Price & Paul R. Tremblay, Legal Interviewing and Counseling: A Client Centered Approach (2004); Robert M. Bastress & Joseph D. Harbough, Interviewing, Counseling, and Negotiating: Skills for Effective Representation (1990).

6. Throughout the case, the attorney-client relationship must be supported by clear and regular communication.  Regular, direct and explicit communication and information will keep you and the client working together as a productive team.  Even if you have no “news” to share, an update call or letter just to let the client know the case status is sound legal practice.  Confirming letters to the client, in addition to your case log or notes, can help the client keep track of information.  Needless to say, they also help you if the client later denies facts told to you or claims that you mishandled the case; nonetheless, the main purpose of the letters is to give information and to reinforce a working relationship.

7. In federal practice, notarization is not needed; instead of affidavits, one may use declarations made under penalty of perjury. See 28 U.S.C. § 1746 .

8. See Chapter 6.1 of this MANUAL for a discussion of the ethical issues governing such interviews.

9. Freedom of Information Act, 5 U.S.C. §§ 552 et seq.

10. See Chapter 6.1 of this MANUAL.

11. On attorney fees, see Chapter 9.4 of this MANUAL.

12. Chapter 4.2 of this MANUAL discusses Federal Rule of Civil Procedure 11 and Rule 11(b)(2) in particular.

13. Model Rule of Professional Conduct 7.3 generally prohibits solicitation of clients when a “significant” motivation for doing so is pecuniary gain.

14. “[A] State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.”  Shapero v. Kentucky Bar Association , 486 U.S. 466, 468 (1988).

15. In re Primus, 436 U.S. 412 , 443-46(1978) (ACLU was such a nonprofit).

16.  45 C.F.R. § 1638.

17. Lassiter v. Department of Social Services, 452 U.S. 18 (1981).

18. Lassiter is not unique. Both Wyman v. James, 400 U.S. 309 (1971), and Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974), were made more difficult by unappealing clients.

19. U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

20. Legal services restriction regulations require, absent narrow exceptions, that certain disclosures be made regarding your client’s identity to defendants in settlement discussions, and to LSC after litigation is filed, and that certain records be kept before filing the litigation.  Your client needs to be aware of, and consent to, such disclosures.  See 45 C.F.R. §§ 1636, 1644.

Updated 2013 by Jeffrey S. Gutman