Strategic Litigation Toolkit: Why It’s a Powerful Tool for Change, and Why you need it to Build your Litigation Strategy.

By Jonathan McCully, 12th September 2022

“Strategic litigation” is an incredibly powerful tool for change.

The process of taking a case to court is often referred to using the biblical allegory of David vs. Goliath. This alludes to the equitable potential of the courtroom, where individuals are supposedly treated “equally before the law.” We know that this is more of an aspiration than reality, but litigation can still empower individuals and movements. After all, the courts can be another forum for protest and for challenging the status quo.

Furthermore, litigation can be used strategically as a tool to push for and bring about changes in law, policy, and practice. By definition, “strategic litigation” refers to cases that have broad impact outside the courtroom and beyond the individual(s) involved in taking the case. This includes using the law and justice system to advocate for societal changes that better protect and promote human rights and justice.

These strategic cases can sometimes come about unexpectedly, when neither the claimant nor the defendant intended at the start to create a precedent or generate public debate. However, more frequently, such cases will involve the mobilisation of a litigation strategy to maximise the potential impact of the case.

The next question you might be asking is, “what goes into such a strategy?” Well, we have developed a Strategic Litigation Toolkit that we hope can help answer this critical question.

The toolkit contains tools, resources and systems that can assist and guide digital rights litigators in articulating and designing a litigation strategy. It aims to encourage litigators to think critically about when and how litigation can be an impactful and meaningful response to digital rights threats.

It also seeks to emphasise that litigation is one of the many tools that can be used to advance digital rights and challenge digital oppression.

As was noted by Charles Hamilton Houston, the civil rights lawyer and ‘man who killed Jim Crow,’ “lawsuits mean little unless supported by public opinion… The baffling problem is how to create the proper kind of public opinion.”

Litigation is likely to be more impactful and effective if used in tandem with advocacy strategies, robust investigation, communications strategies, campaigning, and other interventions. The toolkit seeks to deconstruct how these different ecosystems can intersect with and strengthen strategic litigation.

This toolkit draws from the wisdom and experience of over twenty human rights lawyers and litigators and establishes a roadmap of the key phases that litigators must navigate when pursuing strategic litigation on digital rights.

The roadmap starts with the foundational “big picture” questions that will form the basis of a litigation strategy, and then moves into the more practical questions concerning funding, capacity, risk management, and legal and procedural considerations. It concludes with the final phase of the litigation lifecycle, which is when a court has delivered its judgment or decision. This is often where the real work begins, as change can only really be brought about where decisions are implemented and enforced. Alternatively, when decisions are negative, they need to be challenged either through appeals or through further advocacy and campaigning.

The toolkit includes 36 guidelines that can be used as a simplified checklist for the variety of considerations and topics elaborated on further in the toolkit. It also draws on case studies that demonstrate some of the strategic litigation theories in action.

We hope that this toolkit will be a useful resource to you as you consider the role that litigation might play in your work, and how you might go about taking strategic cases on the issues you care about most.

We are grateful to all those involved in creating this toolkit. A special thanks to Cori Crider, who laid the critical groundwork for the toolkit, and to Ben Batros for his support, guidance, and reflections. We would also like to share our appreciation for Tina Power, Michael Power and the team at ALT Advisory for authoring the toolkit.

We always want to hear about how you use our resources in your work. Likewise, we are also always open to feedback, so the tools and resources we create can be as useful and relevant to your work as possible. If you have anything in this regard to share with us, please feel free to write to us at info@digitalfreedomfund.org.

The Digital Freedom Fund supports partners in Europe to advance digital rights through strategic litigation