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