Plan for Strategic Litigation

Conducting strategic litigation is a long-term process, which must be reflected in financial and strategic planning. Most international bodies require that domestic remedies be exhausted prior to submitting your case. This often requires years of waiting while cases work their way through national systems, which means setting time frames may be entirely speculative. This necessitates different techniques for fundraising, budgeting and hiring, addressed below.

This section addresses operational concerns. For step-by-step advice on planning actions on specific cases, click on the following link:

Strategic planning: setting and achieving goals

Visible progress in strategic litigation is traditionally slow, with cases stretching over years – even at the admissibility stage. Although a final court decision is the ultimate aim, the process itself can have a significant impact. It is important to acknowledge progress in the form of awareness-raising and agenda-setting, and reflect this in drawing-up the objectives of your strategic litigation program.

Further information on understanding, defining and measuring success can be found in the monitor and evaluate strategic litigation page. This section offers examples of flexible and useful SMART objectives, indicators and potential measurements. It also provides an evaluation report of a human rights strategic litigation program to illustrate these issues in practice, as well as an academic paper discussing the challenges of evaluating strategic litigation for human rights.

Financial planning

The longevity of strategic litigation cases means that serious consideration must be given to financial planning. When taking on a case, you have an obligation to see the process through with your client(s), unlike, for example, policy advocacy, where strategies can be reoriented without affecting commitments to others.

As a stop-start process, reserve resourcess are required for those ‘go’ moments in strategic litigation cases. It is easy to be caught off guard, unlike in legal services, community empowerment or advocacy programming. This is particularly important when bringing gender-based violence (GBV) cases, in which clients may suddenly find themselves in a position of immediate danger and interim measures are sought.

Costs related to strategic litigation may include (but are certainly not limited to):

  • Court filing fees
  • Covering potential liabilities in the event of a negative decision
  • Professional fees (attorneys, interpreters, translators)
  • Staff time (salaries)
  • Research costs (subscriptions to legal databases of jurisprudence, additional legal researchers)
  • Travel (to access refugee litigants; for refugees to visit your organization; to access courts – may include air fare, accommodation)
  • Printing costs (document production can be expensive)
  • Communications (phone calls to and by refugee litigants; international calls to partners)

Although predicting case outcomes is not possible, it is important to have funds in place for all potential steps of any strategic litigation process, in the event that the complaint is pursued to the highest level at which your organization hopes to litigate. This may present difficulties complying with donor reporting requirements, which typically expect all funds allocated to be spent as planned, and view failure to fulfill all aspects of a plan negatively – with some even imposing penalties.

Asylum Access has approached the constraints posed by timescale uncertainty and the contingent nature of many strategic litigation actions by earmarking staff time, travel and printing costs, and by seeking both unrestricted funding (that does not have to be spent on a specific activity or item, and which can be internally earmarked for strategic litigation) and non-time-bound funding (even if restricted) that does not come with a deadline by which to be spent.

It is important not to tie your strategic litigation cases to any one source of funds, as this is inherently unstable. It is risky to pursue long-term cases if you are funded by just one grant: if this is unavoidable, examine your organization’s unrestricted funds for potential fallback in case that grant is lost.

Another consideration is whether you may be investing too heavily in one case, which could become a significant resource drain and jeopardize other programs. Such decisions should be made when dividing up your organization’s annual budget, and allocating resources.

National and international grant-making bodies exist to fund or assist in-kind with strategic human rights work, such as:

Local and international fundraising events may both raise the profile of your case, widen the support base and lead to funds or in-kind donations (e.g. press coverage, interpretation). Coordinate all outreach with media and communications efforts.

Human resources

Internal

Strategic litigation also has implications for hiring staff, as national laws may impose certification or registration requirements allowing, for example, only local lawyers standing to represent litigants.

Litigating cases at international levels requires a different skill-set than that needed for legal services advisers. Job or volunteer adverts tailored to strategic litigation programs may include the following requirements:

  • Provide information management regarding pending judicial proceedings;
  • Prepare written arguments for and carry out procedures with international courts and other agencies using legal argumentation based on statute laws and jurisprudence;
  • Carry out in-person court visits to national courts and other agencies;
  • Revise and analyze legislation and internal, international, and comparative jurisprudence according to the strategic litigation cases;
  • Assist in strengthening judicial strategy and complementary activities for the initiation of cases and obtain any other information necessary for adequate case management;

External

Successful cases rely on partnerships and collaboration: Activating these early on creates a sense of ownership and motivation among different participants, whether or not they are official parties to a case, fostering their commitment.

It may be that you require the services of a locally registered attorney if you do not have this capacity internally. Cases may be strengthened by amicus curiae briefs (expert opinion or testimony) presented by other organizations or experts, and while some jurisdictions allow the introduction of an amicus at various stages of the proceedings, others require their inclusion from the outset. This must be factored into outreach planning and partnership building, with clear communication and commitments between all parties regarding timelines and submission deadlines.

Additionally, cases may require additional resources for psychological support for clients. This support is essential at all stages of the process to minimize re-traumatization and promote healing and empowerment.

It is therefore advisable to build up a directory of researchers, advisers, pro-bono lawyers, academics interpreters, translators, psychologists, safe houses, faith-based organizations, media and court contacts to support different aspects of strategic litigation processes.

Fahamu Refugee Programme maintains a directory of pro-bono legal assistance providers including organizations, lawyers and others who are able to assist refugees, free of charge, in legal matters. Fahamu aims to connect legal providers assembling and arguing cases worldwide and provide them with expertise on COI, case development and other aspects. Advocates for International Development offer a broker service to source legal assistance for human rights projects focused on ending poverty.