Strategic Litigation Toolkit
It includes guidelines, expert tips, examples, case studies, and references to useful resources which can assist and guide digital rights litigators in managing their cases from conception to finalisation. It also encourages litigators to think critically about how litigation can be impactful in achieving positive societal change, emphasising that litigation is more likely to be effective if embedded in a wider strategy or movement, used in tandem with advocacy, investigation, communications, and other interventions.
The toolkit is published under a CC BY-SA 4.0 license and can be freely used by anyone. Download it in full as a PDF, or read more about the individual guidelines below.
Phase 1: Thinking strategically about why we litigate: the “big picture” questions
At the outset of your considerations, listening, learning, and engaging with clients or potential clients should be a priority. Whether your clients are individuals, communities, or organisations, it is important to locate them at the centre of your considerations as you determine outcomes.
Listen, learn, and engage with clients or potential clients to understand their realities, and work collectively to determine outcomes.
The intended outcome, inclusive of your client’s or potential client’s outcomes, must always be the point of departure, and its achievement is the primary goal.
Context – social, political, economic, and legal – should inform decisions on whether, when, and how to use litigation and advocacy in support of change.
Do not conflate success and impact. The effective strategic litigator may seek to achieve both in a litigation strategy.
Consider how you may want to use your case, what you are trying to achieve through your case, and when to use different moments within a case for maximum impact.
The objective you are setting out to achieve may be direct or indirect, but it should never be purely academic in nature. It should lead to positive and actual change.
The relief sought- and how it is crafted – can impact the order of the court. Remedies should therefore be clear, concise, and drafted in the court papers using plain language.
Phase 2: Thinking strategically about how we litigate: the practical considerations
Litigation can be expensive, and the timeframes are often uncertain. The nature of the case may assist with assessing costs: does it require a large legal team, and is it expected to take time and go on appeal? Thereafter, what fee do the lawyers charge, and are they prepared to work at a reduced rate, or pro bono? Finally, what are the anticipated disbursements such as printing court documents, experts‘ fees, and travel?
Funding strategic litigation and assessing the cost – both in terms of capital and human resources-is a prerequisite in the determination of any litigation strategy.
Structuring a legal team, which allows for the delegation of work, may enable strategic litigators to work on a case pro-bono or at a reduced fee.
Multidisciplinary teams can be force multipliers. Consider including technical experts, researchers, economists, and activists in your team.
Phase 3: Navigating the various types of litigants
In the context of strategic litigation, the identity of litigants can take on a variety of forms. Choosing a litigant can be a strategic decision, a practical one, or one directed by the standing requirements of a particular court.
Decisions around litigants often turn on what may work best in a particular context, and the procedural prescripts of a given jurisdiction.
Communicate effectively with your client, be reasonable with expectations, and prioritise clients’ best interests, always.
Empowered individuals with agency can play a critical role in making digital rights’ tangible, learn, and engage with clients or potential clients to understand their realities, and work collectively to determine outcomes.
Be approachable, accessible, and available to communities. Make the effort to establish meaningful relationships.
Working in silos is unhelpful in the fight for positive change. Work with others, share information and resources, collaborate, and support those who are in the fight with you.
Hybrid participation – having different types of litigants litigating together – can be a useful way of ensuring inclusion and empowerment, whilst ensuring protection, providing institutional expertise and support, and highlighting both individualised and systemic rights violations.
Phase 4: Ecosystems of support, advocacy, and storytelling
By definition, strategic litigation is one part of a dynamic, complex ecosystem that includes not just litigators and plaintiffs, but other social activists and even potential plaintiffs, all of whom engage in constantly evolving mutually-reinforcing relationships.
Consulting with colleagues and engaging with networks is useful in developing a litigation strategy. Often, other strategic litigators have faced apposite legal questions and have engaged with similar questions of procedure, which may assist in your case.
Allies in the public and private sectors can significantly contribute to advocacy around a particular cause. Their assistance should be encouraged and facilitated.
Digital literacy campaigns and programmes are likely to support your strategic objectives in a variety of ways.
Phase 5: Legal and procedural considerations
Knowing when to launch, what you are launching, where to launch and against whom to launch it are critical considerations, both procedurally and for the wider socio-political impact of a case. Navigating these questions and mapping out the options as early as possible is preferable.
Ideally, you should assess timing on the availability of the right factual matrix and within a key social or political moment. In some instances, you may have to proceed without a “perfect alignment”. While this is not advisable, it may be necessary.
Evidence of a rights’ infringement is a vital element in strengthening your litigation and proving your claim. Factor in time to get the evidence you need, and seek support to collect, collate and present the evidence.
How you collect evidence can, in and of itself, be a strategic decision. For example, asking your opponents for access to certain information or learn, and engage with clients or potential clients to understand their realities, and work collectively to determine outcomes.
Key moments should be identified within the litigation process, including filing deadlines and further potential social and political moments. These deadlines and moments should be used to complement the litigation strategy and bolster existing or new advocacy campaigns.
Digital rights issues can arise in a range of different contexts and may warrant exploring less conventional routes. Be open to alternative areas of the law that may prove to be more effective in addressing issues, particularly against private actors.
Reflect on why you are approaching a particular forum. Assess the strengths, weaknesses, and strategic opportunities various alternative fora may provide.
Different actors may cause rights violations. It is important to be alive to that fact when deciding your litigation strategy.
Phase 6: Post-judgment considerations
Strategic litigation can be tough. It can take a toll emotionally. It can be a painfully slow process, at times alienating, unaccountable, and risky. It can drain capacity and resources. But it can also be a powerful tool for positive change. It can be crucial in correcting major policy missteps, unblocking bureaucratic barriers, combating corruption, injecting urgency, and forcing governments and the private sector to prioritise human rights.
Strategic litigation does not always end with a judgement. The struggle may continue in the form of monitoring, implementation, appeals, reviews, and public education. It may also involve further litigation to enforce the judgment.
Judgments are not always easy to understand and might be lengthy and filled with legalese and technical findings. It is therefore important that the judgment be accessible and understandable.
The outcome of a judgment is often not a simple binary of winning or losing. It is important to reflect on the direct and indirect impacts that are both material and symbolic.
One of the critical factors in ensuring that strategic litigation achieves maximum positive change is efficient and effective enforcement and implementation. This is often a challenge within itself. Know the process, recognise the political climate, and use compliance and non-compliance alike as key moments for advocacy.