A closer look at strategic litigation, part 2

Part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support; Part 3: Connecting litigation with other efforts, strategic litigation as a tool in the toolbox

What is referred to as strategic litigation comes with a variety of labels: impact litigation, tactical litigation, test case litigation, public interest litigation and even “radical lawyering”. There are also definitions abound, some of which focus more targetedly on giving a voice to the voiceless and some of which take a broader approach.

There are, however, certain characteristics that most schools of thought have in common when it comes to using litigation as an instrument for change.

First, that litigation efforts are aimed at bringing about change, be it in the law, its application, or the wider policies around an issue.

Second, that the impact of the case goes beyond the individual or group acting as claimants.

And third, that the case is part of a wider strategy or movement.

Does this mean that every case that meets these criteria can be considered strategic? This is a fundamental question and one that we at DFF are exchanging views on with the digital rights community as we develop our strategic litigation grantmaking strategy.

One of the crucial issues to consider is how to balance the needs of the individuals involved in a case and the needs of what can be referred to as “the cause.” If a case results in vindication for an individual, but fails to have the intended domino effect of more systemic change, can we no longer consider the case to be strategic? In other words: does setting a strong legal precedent suffice?

And considered from the other side: what if a case does not end positively for the claimants, but does bring about change on other fronts (legislative, policy change) – can that be considered a win? What if you have the perfect advocacy and lobbying strategy lined up around your lawsuit and the claimant prefers to settle rather than go to court? How do you strike the right balance?

Then there is the question of the impact of the case: how wide should the potential change brought about by the litigation be in order to be considered strategic? DFF seeks to advance digital rights in Europe with its litigation support: does that mean that a Europe-wide effect needs to be guaranteed? Or could a case affect a cause nationally, potentially with a spillover effect into other jurisdictions?

These are difficult questions and ones for which no easy or common answer can be found.  They also touch upon a fundamental challenge, namely how to unite the interests of individuals with the interest of the public, whether it’s a national public or an international one.

We are eager to hear your thoughts on this and encourage you to share them with us. In the coming months, we plan to organise an interactive webinar with experienced international litigators to further discuss these and many other issues, and explore how they impact on strategic litigation work in Europe. Follow us for further updates and join in on the conversation.

This post is the second of a series on strategic litigation. Next post: Connecting litigation with other efforts: strategic litigation as a tool in the toolbox. First post: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support