Pre-Litigation Actions

As soon as a case is identified for potential litigation, all those working on the case should maintain clear evidence and activity logs in the client’s file. Accuracy and detailed documentation are vital to navigate the scrutiny from a judicial body.

“Having both policy and strategic litigation going on in tandem is very useful … The sharing of information is crucial in terms of lobbying, because the front that [government authorities] put up in meetings with officials is different from the cases they are actually taking to court behind the scenes”

Step 1: Plan development

The litigation team should develop the following documents:

  • An overall, comprehensive litigation plan;
  • A research plan;
  • An evidence collection plan;
  • A media and outreach plan; and
  • A fundraising plan (if necessary)

Step 2: Negotiate with authorities

The team should engage in final discussions or negotiations with relevant authorities if possible, to attempt to solve the human rights violation through non-litigious means. Attempting to solve the problem out of court can reduce costs; help prove that you are litigating in good faith; and lend evidence to show exhaustion of local remedies for a regional or international case.

Step 3: Mobilize outside support

The litigation team should begin mobilizing support and building alliances with UNHCR, academic institutions, legal clinics, friendly organizations and refugee groups. Consider co-contributors – pro-bono where possible – to:

  • Sign a court/commission complaint;
  • Comment on a complaint;
  • Provide research support;
  • Act legal representative on your behalf (if necessary);
  • Assist with written documents; and
  • Prepare amicus curiae submissions

Step 4: Division of labor

Determine initial litigation team:

  • Assign staff, volunteers and external contributors to work on each aspect of the case;
  • Prescribe clear responsibilities and actions with deadlines and benchmarks for time-sensitive matters.

Step 5: Begin related advocacy efforts

Initiate media outreach to journalists that may be sympathetic to your cause:

  • Prepare press releases that present the issue in a clear and easily digestible manner;
  • Keep in mind sensitivities surrounding debates on migration and forced migration in your context in order to avoid potential backlash.

Safety and confidentiality issues must be addressed and stories must be conveyed sensitively, with clients’ consent, but without stereotyping, generalizing or simplifying the issue. This may go hand-in-hand with building a targeted advocacy campaign and mobilizing students, grassroots activists and other pressure groups or coalitions to build momentum and awareness around your case.

Such campaigns may be linked to fundraising efforts, which may flourish off the back of increased publicity and participation, however fundraising should be conducted well in advance of establishing any strategic litigation program.