Monitoring and evaluation, as discussed in general in the results-based management section, is necessary to convince funders that your organization is making a difference, and to allow staff to reflect on their achievements and areas for improvement.
Evaluating strategic legal processes is complicated, given the slow and long-term nature of cases, and what may appear to be a low ‘success’ rate.
Success in strategic litigation should not be defined solely on victories in court. Losing legal battles is common, given the inherently combative and contentious nature of human rights impact litigation subject matters. Moreover, developing countries often have decades of cases waiting in backlog. Be aware that the judicial atmosphere may severely limit your progress, but there are strategies to expedite hearings. Therefore, dialogue with officials, establishing publicity, and forming campaign alliances should be classified as related successes.
How to think about successes
It is important to evaluate success based on goals. Therefore, clearly defining goals at the outset is key, and should enable monitoring and evaluation to take place effectively from the start of the litigation process. Defining goals that consider indicators and other measures can broaden your understanding of success.
Beyond evidently favorable case outcomes, the following indicators could be factored into your monitoring procedures as ‘impact indicators’ for the actions or outcomes of cases:
How did case actions or outcomes:
- Advance the interests of survivors/claimants;
- Explore and promote under-utilized laws or mechanisms to advocate for other litigants in the future;
- Catalyze similar actions, movements or solidarity among shared interest groups;
- Further attempts to investigate, document and publicize alternative ‘truths’ related to a conflict or rights abuse;
- Contribute to survivors’ healing, reconciliation or search for comprehensive justice;
- Illustrate the utility of universal jurisdiction or other extraterritorial or under-utilized jurisdictional principles;
- Strengthen the networks and skills of human rights actors;
- Cause shifts in public opinion or create open spaces for healthy debate;
Examples of ‘SMART objectives and indicators‘ for strategic litigation programs
In the early stages, short-term objectives may also form part of the organization’s capacity building, administrative, or research and policy advocacy activities:
- By [date], the organization applies for observer status at regional commission or court.
- Indicator: Status successfully granted.
- By [date], the organization circulates job descriptions to attract specific staff or volunteers for strategic litigation.
- Indicator: Recruitment process initiated and staff/volunteers are hired
- By [date] the organization identifies major thematic issues for strategic litigation and trains legal advisers to recognize cases.
- Indicator: Thematic issues are delineated and advisers refer such cases, or consult strategic litigation staff for identification help
- By [date] the organization builds capacity for strategic litigation.
- Indicator: Holding at least two training sessions for all staff on relevant strategic litigation guidelines (e.g. case identification)
- Indicator: Developing partnerships with individuals or institutions who can assist significantly with litigation through mediums such as authoring or mentoring a submission
- By [date] the organization contributes at least two amicus curiae to a relevant strategic litigation case brought by partners.
- Indicator: Number of amici briefs submitted
- By [date] the organization prepares at least two contributions to regional or international human rights protection mechanisms on the basis of observed trends.
- Indicator: Number of contributions presented
Later on, long-term objectives could include:
- By [date] the organization identifies major thematic issues for strategic litigation and a process for recognizing specific cases that fall within the parameters of these themes.
- Indicator: three potential cases identified through a systematic process
- By [date] the organization develops a specific litigation plan for at least one rights violation.
- Indicator: Existence of a comprehensive litigation plan
- By [date] the organization prepares a written submission.
- Indicator: Draft submission finalized and case submitted
- By [date] the organization prepares monitoring plans for each individual for whom a case is being brought.
- Indicator: Establish a monitoring plan document, carry out community meetings or outreach with individuals
- By [date] the organization develops a communications strategy in conjunction with case work and demonstrate progress towards implementation.
- Indicator: Number of times your case has garnered media attention
- By [date] organization submits at least two amici to strengthen an existing case.
- Indicator: Number of amici submitted
- By [date] the organization promotes the positive development of a particular case.
- Indicator: Report progress or occurrence of hearing
- By [date] the organization evaluates actions undertaken on cases every two months to ensure strategy direction is followed or tailored.
- Indicator: Progress reports on cases
- By [date], the organization wins a case establishing or enforcing a right under relevant domestic or international law.
- Indicator: Positive decision by national, regional or international body
- Indicator: Recognize deference to the legislature as neutral, but look for avenues to infiltrate legislature, or reform your litigation strategy to target courts in different jurisdictions or with different views. Judicial deference to the legislature should be seen as a tool for your Policy Advocacy efforts and mechanism to identify available, contentious issues to litigate
- By [date] the organization influences the revision of current refugee status determination (RSD) rules / access to rights procedures / [other legal reform need] through the courts.
- Indicator: Existence of case documents such as plan of action and legal documents
- By the end of every two years the procedures and strategies for the methodology for strategic litigation are validated.
- Indicator: Development of methodology document
- By [date] a positive change in government behavior occurs, arguably as a result of the organization’s strategic litigation and public awareness efforts, considering rights under relevant domestic and international law.
- Indicator: Evidence that behavior has changed drawing data from refugee testimony, observed practices, human rights reports, etc.
- Indicator: The next step is analysis establishing causal link with your organization’s work
- By the end of the organization’s year it produces a report on trends in violations of refugee rights and emblematic cases worked on during the previous year.
- Indicator: Report document, release event etc.
Examples of ‘analysis and evaluation of progress’ measurements
- Number of training sessions held internally on strategic litigation guidelines
- Number of partnerships developed which can assist with litigation
- Number of bodies at which ‘Observer’ status (or other appropriate standing) applied for and/or successfully received
- Number of potential cases identified (or progress towards identifying those cases)
- Number of times your case is in the media
- Tackling the Evaluation Challenge in Human Rights- Assessing the Impact of Strategic Litigation Organizations (Hertie School of Governance, 2010)
- Final Evaluation Report: Strategic Litigation on Anti-Discrimination and Minority Rights Issues in Bosnia and Herzegovina, Croatia and Kosovo (Minority Rights Group International, 2011)