A closer look at strategic litigation, part 3.
In a previous part of this short series on strategic litigation, we discussed how one of the important characteristics of a strategic case is that it forms part of a wider strategy or movement. This stems from the basic premise that successful strategic litigation conducted in isolation cannot achieve its full potential impact. But also because the case and “the cause” are not always the same.
The case is usually a stepping stone in furthering a cause or put differently: litigation is one of the many tools in the toolbox in pushing for change – a potentially powerful tool, but also one where its powers are significantly influenced by the context in which it takes place. Litigation works when combined with other instruments for change: advocacy, lobbying, and the political “inside game”. There are many reasons for this.
First, aligning work inside the courtroom with activities outside it can increase the effectiveness of your litigation work. A perhaps mundane, yet important factor can be the speed with which the court will decide a case. Courts often have a significant caseload to handle and prioritisation – by necessity – often takes place based on urgency. If an issue comes before the court that is high on the agenda of public debate, this can be an incentive to consider the matter more expeditiously.
Second, by not connecting litigation efforts with public messaging, an important opportunity is missed in informing the wider public about the issue being litigated in court. This sometimes requires some translation work; not all legal concepts are easily relatable for a general audience and what is at stake needs to be presented in a different way than to a judge. But it is an important task: if the case is important enough to go to court, why shouldn’t the public whose interest you’re trying to benefit with the case know what you are trying to achieve? Moreover, they can bring important support to your case (and cause!) by making their voice heard.
This ties into a third factor: implementation. A win in court does not automatically mean that the policy, law or practice you sought to change will be fixed. More work will be needed to push for implementation, legislative follow-up, and sometimes also in the courtroom. To fight these battles on multiple fronts, it is important to have partners who are skilled in pursuing those objectives together. On the other end of the spectrum is the situation where a case is lost. In some circumstances, a loss in court can still be leveraged into a win on other fronts. For example, public outrage about a judicial outcome can help create a necessary push for legislative change. Here, public support, as well as strategies and partners outside the courtroom are essential.
Social and structural change is a long-term battle. Different strategies are needed at different points in time to pursue the objective or “the cause”. Litigation is one tool that can be employed as part of those strategies, but ultimately, “the case” is only one of many steps taken in the pursuit of a bigger cause. This realisation is crucial and also opens up many new potential avenues for identifying cases that can potentially support the pursuit of the cause. By building longer term alliances and partnerships that include a variety of skillsets (advocacy, litigation, policy, technical expertise) around an issue, you create a network where you can share information and find good options for litigation or even proactively create test cases. You also create a fertile landscape where efforts on one front can positively influence the others and vice versa.
In developing DFF’s grantmaking criteria, we are taking these factors into account. In assessing future applications, we will be more compelled by case proposals that not only demonstrate a solid legal strategy, but also a broader advocacy strategy around the litigation, where needed in collaboration with partners that can offer expertise the litigants do not have themselves. This can include advocacy, lobbying and media outreach.
We welcome your views and encourage you to share them with us as we continue developing our plans.
This post is the third of a series on strategic litigation. Also read part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support and part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?