By Gary F. Smith and Susan Ann Silversteinpovertylaw.org/files/docs/article/chr_2004_may_june_smith.pdf · focused on the problem and its solution, you, your clients, and others can

27Clearinghouse REVIEW Journal of Poverty Law and Policy ■ May–June 2004

L itigation can be a powerful tool for solving problems for your clients. However,other tools, such as legislative and administrative advocacy, community educa-tion, and direct action, should be considered along with litigation. The lawyer

must first determine that a lawsuit is the best strategy, or one of several strategies, forsolving the particular problem or attaining a specific goal.

I. Obtaining the Client’s Goals

Planning for obtaining the client’s goals is no different from planning for any proj-ect. Many models for strategic planning have been developed. Which model appealsto you will depend on your style. Whether you choose to use an explicit strategicplanning process or not, you will need to answer the following questions before youstart:

■ What does your client want?

■ Who or what has the power and resources to provide what is desired?

■ What will cause the person or entity to do what needs to be done?

■ How will it be done?

■ What resources will be required?

■ When do you need to get results? How long will it take?

■ How will you know when you have succeeded?

By Gary F. Smith and Susan Ann Silverstein

Gary F. Smith Executive Director

Legal Services of Northern California517 12th St.Sacramento, CA [email protected]

Susan Ann SilversteinSenior Attorney

AARP Foundation Litigation601 E. St. NWWashington, DC [email protected]

[Editor’s note: This article is adapted from Chapter 1 of the FEDERAL PRACTICE MANUAL FOR

LEGAL AID ATTORNEYS, published in June 2004 by the Sargent Shriver National Center onPoverty Law. See the online version at www.povertylaw.org.]

Preparing for LITIGATION

28 Clearinghouse REVIEW Journal of Poverty Law and Policy ■ May–June 2004

Preparing for Litigation

Only when these questions have beenconsidered and provisionally answeredcan you be confident that you are provid-ing the best advocacy for your client.When litigation is one of your strategies,additional, more technical, questionsmust be asked. Many of these questionswill be addressed later in this chapter:

■ What are the capacities and limitations ofyour firm or organization?

■ Who will the client be?

■ Who will the plaintiff be?

■ What will your claims be?

■ On what law will you rely?

■ What specific claims for relief will youmake?

■ How will the lawsuit be staffed orfinanced?

The amount of time that you devote to theprelitigation stage will depend on thecircumstances. If the client is facingimmediate eviction, for example, youmay very quickly determine that theclient needs a temporary restrainingorder and leave aside, for the moment,any systemic issues presented. Othercases might involve filing your complaintseveral weeks or months after the clientretains you and after a long planningstage. For instance, a community grouprecently wanted to address the inade-quate education that the city school dis-trict was providing to its overwhelminglyAfrican American and Latino students.The legal services office spent over a yearplanning its strategy for this case. Theattorneys created a coalition that wasdedicated to the school problem and thatultimately became a plaintiff, created afunding mechanism and raised substan-tial funds for the litigation, conductedlegal research, devised a media cam-paign, investigated the facts, and debat-ed the various possible legal claims andstrategies.

In another case, attorneys worked veryclosely with local disability rights groupsto get adequate, timely transportation.The grassroots activists and communitymembers planned the overall course of

action, which included direct action andcivil disobedience, negotiations andmeetings with the transit authority,media coverage, public hearings, andeventually litigation. Although litigationwas always a critical part of the plan, the community groups working on theissue chose other approaches first fortactical reasons. This chapter addressesthese planning issues as you prepare forlitigation.

II. Factors for Consideration

Your consideration and answers to thefollowing questions will determine yourstrategy.

A. What Does Your Client Want?

The answer to this question will shapethe course of your litigation. When youdraft the complaint, you will need toidentify the legal relief requested.However, at the earliest stages you mustnot think in legal terms but instead con-sider in a broader way the solutions thatwill address the problem that your clienthas presented. Only by doing this can yoube sure that you have not prematurelyselected litigation as your strategy andthat you have not allowed any formulaicways of requesting relief to limit unnec-essarily the goals of your advocacy. As youbegin, you will want to focus first on whatis desirable as an outcome and not merelywhat is attainable. Litigation may notachieve all that is desirable. Otherapproaches may achieve much of what issought more quickly and less expensive-ly. If such alternatives are not feasible orsuccessful, or will be employed in tan-dem with litigation, then you can morenarrowly focus on what is legally attain-able after you have completed your legalresearch and fact investigation.

In some cases a client will have a clear viewof what role litigation may play, and in thosesituations the lawyer’s job is to do the tech-nical, professional work necessary to dowhat the client wants done. For example, inMassachusetts, an Aid to Families withDependent Children (AFDC) recipient andofficer of the Massachusetts Welfare RightsOrganization read Massachusetts GeneralLaws ch. 118, § 2, which directs that the aid



furnished under the former AFDC pro-gram shall be sufficient to enable recipientparents to bring up their child or childrenproperly in their own home. This personasked that Massachusetts legal aid lawyerssue to enforce that statutory mandate. Therecipient’s initiative led to one of the moreimportant and productive lawsuits of theera.1

In other situations, the client has limitedexpectations of the civil justice system,and the lawyer’s job is to expand theclient’s notion of what is possible. Thus,for example, a tenant who hopes for extratime in which to move may in fact be ableto secure repairs, reduced rent, a damageaward, and the right to remain in arepaired unit. Part of the advocate’s jobis to make sure that the client has a fullpicture of the kinds and extent of reliefavailable as well as the potential obsta-cles in achieving them. Once you havefocused on the problem and its solution,you, your clients, and others can deter-mine how to frame the legal relief thatyou are seeking to accomplish theagreed-upon solutions.

B. What Are the Capacities and Limitations of Your Firm or Organization?

Obviously the extent of any potentialadvocacy effort is always circumscribedby the capacities and limitations of yourfirm or agency. The principal limitation,of course, is that of resources, which inbroad terms consist of (1) staff time and(2) funds available to spend on advocacy-related expenses. Legal aid firms typical-

ly are engaged in a constant and never-ending institutional struggle to evaluateand satisfy the advocacy needs of theirclients against extremely scarce organi-zational resources.

Many legal aid organizations across thecountry are funded, at least in part, bythe federal Legal Services Corporation(LSC). In 1996 Congress enacted, in abudget bill,

■ a series of sweeping restrictions,2

■ subsequently codified in LSC-promul-gated regulations, which limit therange of activities in which attorneysemployed by LSC-funded programsmay engage.3

These substantial restrictions include,for example, class action litigation; leg-islative and administrative advocacy;representation of aliens and prisoners;“welfare reform” advocacy; abortion-related advocacy; redistricting advocacy;and collection of attorney fees.4 Not allof these restrictions were new. Congressand LSC had long limited some of theadvocacy which LSC grantees couldundertake using LSC funds. However, the1996 changes not only added numeroussubjects to that list but also extendedmany of those limitations or prohibi-tions to any funds used by the grantee.5

The LSC regulations, which are subject tochanging political currents as well asongoing litigation, must be read verycarefully. Many of the restrictions are infact limited in their terms and permitattorneys’ specific actions (sometimes

1Massachusetts Coalition for the Homeless v. Secretary of Human Services, 400 Mass. 806, 511 N.E.2d 603 (1987).

2Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, §§ 501–509, 110 Stat. 1321-51 to 1321-59. See also 42 U.S.C. §§ 2296 et seq. (the Legal Services Corporation Act).

3See 45 C.F.R. pts. 1600 et seq. (2001).

4Id. Other areas of practice upon which restrictions are placed include political activities, client solicitation, grassrootsorganizing, “fee-generating” case representation, criminal and habeas corpus proceedings, defense of evictions in cer-tain situations involving drug activities in public housing, and cases involving assisted suicide, euthanasia, and mercykilling.

5The 1996 restrictions were, and continue to be, the subject of significant constitutional challenges raised by variouslegal aid organizations, clients, and individual advocates. See, e.g., Legal Aid Society of Hawaii v. LSC, 145 F.3d 1017 (9thCir.), cert. denied, 525 U.S. 1014 (1998); Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) (Clearinghouse No.51,556). In Velazquez the U.S. Supreme Court invalidated, principally on First Amendment grounds, one aspect of therestriction upon advocacy related to “welfare reform” measures and remanded the plaintiffs’ remaining claims. As ofDecember 2003, Velazquez and a companion case, Dobbins v. Legal Services Corporation, No. 01 CIV 8371 (FB) (E.D.N.Y.)(Clearinghouse No. 54348), each raising numerous constitutional challenges to the restrictions, were pending before thefederal district court.



using non-LSC funds) that fall within thescope of the general restriction.6

However, we must understand that therestrictions do not prevent “impactadvocacy” either through litigation orother means of legal representation.Many significant legal changes havecome about through the vigorous litiga-tion of an individual client’s claim (or agroup of clients’ claims), the setting of alegal precedent, a change in the law, orthe obtaining of specific injunctive ordeclaratory relief, including broadprospective relief.7

These restrictions may counsel againstthe LSC-funded organization from tak-ing a certain case as a strategic matter.Take, for example, the prohibition on anLSC-funded advocate’s ability to requestand obtain attorney fees, in most cases.8

Even after prevailing in litigation, theprohibition can remove a significant toolfor forcing the defendant to understandthe consequences of its wrongdoing andremove a bargaining chip from the table.Attorneys in restricted programs shouldconsider any effect this might cause onthe litigation as a whole and the resultingability to obtain adequate relief for theclient. The attorney should evaluatewhether other economic sanctions, suchas punitive damages or damages sound-ing in tort, can be requested and are sup-ported by law. Cocounseling with a non-restricted attorney or organizationcertainly may be worth doing in order topreserve at least some attorney fee lever-age for your clients. Ultimately, in someinstances, for example, where the appro-priate advocacy strategy is class actionlitigation, ethical obligations to the

client may require recruiting a nonre-stricted attorney to handle the case. Thepoint here is that advocates in LSC-funded programs must be creative andmust be prepared to adjust their strategyin light of the restrictions.

C. Who Is Your Client?

Part of the litigator’s job is deciding whothe client will be. A person who walksinto your office with a grievance will notnecessarily become your client in a law-suit. Lawyers generally, and legal aidlawyers in particular, need to think care-fully about not only which issues aresuitable for litigation but also whichclients will best present those issues asparties to litigation. The lawyer has con-siderable influence in deciding who theclient will be.

The lawyer may seek clients and not sim-ply sit and wait for individuals to ask forhelp. For example, when the lawyerknows that a damaging thing is about tooccur or has been occurring, the lawyermay seek out people willing to challengesuch action.9 This may take the form ofpublic education about the issue or mayinvolve more actively contacting poten-tial clients through networking withorganizations and client groups.10

Before accepting someone as a client,you must consider issues of standing andmootness. Minimizing standing andmootness problems may justify multipleplaintiffs. Yet representing more thanone person may create the possibility of aconflict. As with any other litigationchoice you make, the potential conse-quences must be considered.

6For a thorough discussion of all the restrictions, see ALAN W. HOUSEMAN & LINDA PERLE, WHAT CAN AND CANNOT BE DONE:REPRESENTATION OF CLIENTS BY LSC-FUNDED PROGRAMS” (2001), available at www.clasp.org.

7See, e.g., Raun J. Rassmussen, Affirmative Litigation Under the Legal Services Corporation Restrictions, 34 CLEARINGHOUSE

REVIEW 428 (Nov.–Dec. 2000); Gary F. Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy forClasswide Violations of Federal Law, 32 id. 112 (July–Aug. 1998).

845 C.F.R. § 1642.

9Although Legal Services Corporation (LSC) rules place restrictions on solicitation of clients, provision of legal informa-tion and outreach are permitted. 45 C.F.R § 1638.4.

10An American Civil Liberties Union (ACLU) attorney’s letter soliciting a potential litigant came within the zone of FirstAmendment protection for associational freedoms where the purpose of the solicitation was to advance the civil liber-ties objective of the ACLU and not to derive financial gain. In re Primus, 436 U.S. 412 (1978); see also NAACP v. Button,371 U.S. 415 (1963).



In many situations the client may be acommunity organization. Working with acommunity organization, especially inthe context of tackling systemic issues,has many advantages. The communitygroup may have its own resources to con-tribute to the litigation. The group maylend financial and volunteer support,credibility, networking, and potentialplaintiffs. Most important, the groupmay understand the importance of theissue at hand and the social forces thatboth have created the problem and canlead to its solution. The involvement of acommunity group can also ensure thatattorneys advance the litigation in accor-dance with community needs.

Working with group clients involves spe-cial considerations.11 Most important,you (and the group) must know and agreeon who speaks for the group. You shouldalso understand whether the groupspeaks for the community or constituen-cy at large or only for its particular mem-bers or leadership. You must have opencommunications with the group and itsleadership so that you understand andagree on the respective roles of attorneyand client. While this same clarity isimportant in working with an individualclient, it can be more complex whenworking with a group. The institutionalinterests of the organization may divergefrom the desires of individual membersof the group. The retainer agreementmust incorporate all elements of theattorney-client relationship, and shouldspell out the mechanism by which thedecisions of the group will be made andconveyed. While the retainer may speci-fy the name of an individual member ofthe group, the retainer should state whospeaks for the group in case the namedindividual leaves the group. Workingwith a group may also entail making pre-sentations about the case to the leader-ship, the board, or the membership atlarge and attending meetings.

The retainer agreement is the blueprintfor your relationship with your client. Inaddition to including any language man-dated by your state bar or legal servicesprogram, the retainer should anticipatethe potential attorney-client relation-ship problems that can arise during liti-gation. The respective responsibilities ofthe attorney and client should be dis-cussed. Other important litigation itemsthat should be addressed are grounds fortermination of the attorney-client rela-tionship and how such termination willbe handled, costs and fees, and settle-ment offers. Some attorneys include lan-guage explaining the typical time framefor litigation.

In bringing a class action, be sure thatthe retainer agreements and conversa-tions with the class leaders make clearthat the lawyers’ responsibilities are toall of the class members, not just thenamed plaintiffs. For example, in chal-lenging mass evictions and proposeddemolition of housing, be clear about theextent to which counsel is representingpeople who want to stay, people who leftbut will not return or do not want toreturn, and people who are in need of thehousing and do not want it demolished.If you foresee potential conflicts, or ifthose conflicts already exist, you canchoose to represent one of the subgroupsand can recruit private or other nonprof-it counsel to represent the other groups.A conflict of interest with the local legalservices office is often one of the criteriathat the local office uses for placing acase with pro bono counsel.

If you are in an LSC-funded program,you are prevented from filing or partici-pating in a class action.12 As emphasizedabove, this does not mean that you areprevented from doing impact litigation.The legal services restriction does notprevent you from determining the pre-ferred strategy to obtain your client’sgoals and exercising your legal creativity

11LSC-funded programs seeking to represent a group or organizational client using LSC funds must ensure that thegroup meets certain financial eligibility criteria. 45 C.F.R. § 1611.5(c).

1245 C.F.R § 1617.



and experience. Classlike relief may beavailable in declaratory and injunctiveactions on behalf of an individual, group,or institutional plaintiff.13 The possibil-ity of mootness may be limited by addingan institutional plaintiff.14 However, ifthese alternatives to class actions areinadequate to meet the needs of yourclients, your obligations require you tostate this and assist in locating alternatecounsel, such as a nonrestricted office, alocal nonprofit, pro bono, or privatecounsel.

Even in a case clearly appropriate tobring on behalf of an individual, theremay be questions as to which the rightplaintiff is. Is it the parent or the child?The leaseholder or the family memberbarred from the property? Is it one orboth? Is it the first one who came to youroffice? What are the conflicts and poten-tial conflicts? These issues must beaddressed at the outset through carefullegal and factual research.

D. Who Can Provide that Relief?

Once you and your clients are reasonablyclear about what they want, you mustdecide who is able to provide that reliefor able to direct that it be provided.Consideration of this question deservessome creativity. The relief may comedirectly from a private individual or localagency, but there may be one or morepublic agencies—federal, state, or local—with the authority to order that the reliefbe provided or with the power to provideit directly. Thus a local housing authoritymay be subject to direction from the U.S.Department of Housing and UrbanDevelopment (HUD); a nursing homefrom the U.S. Department of Health andHuman Services; a private landlord fromlocal code enforcement officials andfrom the mortgagee. You should identifyall potential sources of relief.

Similarly every individual who is essen-tial for relief should be considered. Anattempt to get relief that costs money

from a local housing authority couldinclude HUD because HUD’s resourcesmight be needed. A lawsuit seeking reliefthat involves financial consequences fora private landlord could include themortgagee. The advantage of bringing inthe additional party must then beweighed against the disadvantages. Forinstance, suing HUD may delay the liti-gation and make informal advocacywithin HUD impossible. As in all otherdecisions, you must work with the clientto determine what is the best choice forthe particular litigation.

E. Other Considerations Before Litigation

In preparing for litigation, consider therequired financial resources and howlong the litigation will take.

1. FinancingAs part of the initial planning stages ofthe litigation, you should prepare abudget that covers both the time and staffresources and the financial resourcesnecessary to conclude the litigation. Justas your litigation plan will include thelegal claims, the facts necessary to proveyour claims, and the method you will useto establish those facts, it should includean estimate of the time and staff neces-sary to draft and research motions,interview witnesses, review documents,and anything else you need to get done.The financial estimate should includefees and costs, such as for depositions,transcripts, experts, and witnesses. Ifyou are fund-raising you can also trans-late the time and staff resource require-ments into a dollar figure for salary andoverhead.

It can be easy to accept a case and com-mence litigation under the assumptionthat you will get a preliminary injunctionand the case will settle or reach a quickconclusion. In fact, this is not uncom-mon in the type of case a legal serviceslawyer often brings, such as to challengean agency’s actions where the facts are

13See FEDERAL PRACTICE MANUAL FOR LEGAL AID ATTORNEYS ch. 9, sec. III (Jeffrey S. Gutman ed. 2004).

14See id., ch. 3, sec. I.



not in dispute and only a legal issue ispresented. But this often is not the case.The budget may based on your assess-ment that you probably or likely willresolve a case at a certain stage, but youshould know how much it would cost topursue the case to completion. In addi-tion, the possibility of appeal should beconsidered. You need to know how faryou can carry your legal strategy.15

If you and your agency cannot afford tobring a case that will have broad socialimpact, the case may be a candidate forobtaining litigation funding. Litigationcan be funded by foundations and privatesupporters. If the litigation is under-stood to be part of an overall strategy forobtaining an important communityobjective or in protecting a vulnerablepopulation, and you can explain why liti-gation is the best tool to achieve a well-articulated goal, your likelihood ofobtaining funding increases.

Another way to obtain financialresources is to partner with, or cocounselwith, a private law firm. Often the legalservices program can provide the sub-stantive expertise and the law firm cancontribute litigation and trial experienceand cover the ongoing litigation expens-es. In-kind assistance such as copying,secretarial, and paralegal work can freeup program resources from this particu-lar litigation to be used on other matters.There is an increasing national emphasison working with civil rights groups andnational nonprofit legal organizationssuch as the National Women’s LawCenter, the American Civil LibertiesUnion, or the American Association ofRetired Persons. These groups can alsoprovide expertise and in-kind assis-tance, media campaigns, research, andstaffing resources. Organizations arecareful stewards of their resources andwork on cases that further their mission.Your relationship with a national organi-zation may be one of full partnership orof cocounsel, or it may consist of gettinghelp in discrete portions of the a litiga-

tion. As with any other relationship thatyou form to advance your litigation, clearcommunication of expectations andresponsibilities is critical and should beconfirmed in a cocounsel agreement,memorandum of understanding, or letter.

If your agency cannot afford the litiga-tion, and you cannot obtain funding,then you should not and cannot bring thelitigation. You must explain to the clientthe costs of the litigation and the risks ofbringing underfunded litigation—mak-ing bad law and getting a bad decision forthe client. Clients often have no idea ofthe costs of litigation and have notionsdistorted by the cultural mythology sur-rounding lawyers about how lawyers arepaid. They may think that they will obtainmillions of dollars in damages and thatyou will receive a portion, or they maycare so passionately about an issue thatthey may push you to commit resourcesthat you do not have. Either way, your jobrequires understanding the reality of theeconomics of litigation and giving yourassessment to your client. You owe it toyour client to make this determinationpromptly so that the client can exploreother possible sources of representationor advocacy before any legal or practicaldeadlines occur.

2. TimeThere is no litigation on record that tookless time than the attorney originallythought it would. Legal research has away of expanding exponentially. Clientstalk with you for longer than you expect-ed. The judge calls you in for a confer-ence, keeps you waiting, and asks you tocome back again. In your planning stage,you should estimate the time that it willtake you and other office staff to handlethe litigation responsibly. Then add timeto that estimate.

A reality of legal services practice is thatthe need for our services is greater thanwhat we can provide. You owe it to yourclient, yourself, and all your other cur-rent and potential clients to estimate atleast the time that you will spend on this

15For instance, if you know that your program cannot bring an appeal under any conditions, either for financial, staffing,or programmatic reasons, and pro bono appellate counsel is unlikely, a settlement offer might be evaluated very differ-ently from if you know that you would appeal an adverse decision.



case. How many hours per week? Overhow long a period of time? You must alsohave a clear sense as to the timetable bywhich your client needs or wishes relief.What are the deadlines in your case, andwill you have a time crunch as youapproach them? Then you can determinethe consequences of accepting the caseand beginning the litigation.

Do not accept a case or commence litiga-tion if you do not have a plan for staffing thecase and a realistic estimate of the time tobring it. Even with a realistic plan, therewill be time deadlines and late nights—thatis the nature of litigation. On the otherhand, flexibility, creativity, and efficiencycan often add significantly to your availabletime resources.

Keeping adequate time records is animportant aspect of managing the litiga-tion. You may need to keep contempora-neous time records to comply with legalservices program rules or to obtainattorney fees from the court. Good timerecords can be useful should you everhave to move for or defend against sanc-tions. They are factual records of theactual time that it takes to litigate; theycan also be considered in determiningthe staffing needs of your office, draftingfunding proposals, and setting officepriorities. Many offices are now usingsoftware that make capturing accuratecontemporaneous time records easierand analyze and present the records.

F. Alternatives and Complementsto Litigation

All options for obtaining relief, insteadof or in conjunction with litigation,should be considered and used whereappropriate. For some programs, thebarriers to litigation are significant andthe likelihood of the client retainingother counsel all but nil. To the extentthat the problem can be resolved withoutlitigation, it should be. Litigation canoften be more expensive in time and costthan alternatives. Thus the use of alter-

natives to litigation can mean that moreclients are served and more problemsare solved. While these strategies aregenerally considered alternatives to liti-gation—alternative ways to obtaining thedesired results—they can also be used asadjuncts to litigation.

1. Administrative AdvocacyAdministrative advocacy can be formalor informal. Even where administrativeproceedings are not required prior to lit-igation, they may be available.16 Forinstance, a fair housing claim may befiled either in court or with HUD. Yourchoice will be determined by the speed atwhich you seek relief, the HUD adminis-tration and its record, and the type ofdiscovery and fact investigation that youwish to conduct. Many attorneys havehad success in using the HUD adminis-trative procedure for informal discoveryand obtaining conciliation agreements.On the other hand, many HUD com-plaints have languished for years.

In addition to having quasi-judicial pro-cedures for enforcement of a statute,such as through HUD or the EqualEmployment Opportunity Commission,many agencies have procedures for filingadministrative complaints. Under somestatutory frameworks, the administrativeprocess is a necessary prerequisite to fil-ing in court. If you do not timely fileadministratively, you will lose youropportunity to pursue the case throughlitigation. In addition to formal admin-istrative processes that may involveinvestigation, conciliation, hearings andadministrative appeals, there are otherkinds of administrative routes to follow.For instance, in addition to availing ofdue process hearings, some attorneyshave had success in special educationcases with their state’s complaint processor in making a complaint to the Office forCivil Rights within the U.S. Departmentof Education. You can also engage inadministrative and federal rule-making,including requesting a rule making orcommenting on proposed regulations.17

16Doing so, however, may have preclusive effect. See FEDERAL PRACTICE MANUAL, supra note 13, ch. 3, sec. II.

17See 45 C.F.R. § 1612 (restrictions on legislative and administrative rule-making activities).



Administrative advocacy can be informal.You can work up the chain of command, oryou can contact the county attorney or gen-eral counsel. You can call your agency con-tacts who have agreed with your position orare at least open-minded to see if they maytake any official or nonofficial action. Alocal administrator is often surprisinglyamenable to changing a local practice if theagency knows that its federal or state over-sight agency is supportive of the change. Ofcourse, your local agency may be stubborn,but then you can count your informaladministrative advocacy as informal dis-covery of the oversight agency’s position.

Many local court rules require the attor-ney to attempt to settle the matter beforecommencing litigation.18 When time isof the essence, or when you do not wantexcessive lead time before you actuallyfile, you can attach a draft complaint toyour demand letter and set for the defen-dant a fixed period of time for response.As with any other correspondence withthe defendant, or the attorney for thedefendant, this correspondence maywind up before the court either duringthe substantive portion of the case orduring a fee motion. Any time you writeabout your case to the opposing party,bear in mind that the letter may later befiled with the court.

2. Legislative AdvocacyOne informal strategy is to contact, or haveyour client contact, your local congression-al representative.19 Even if the congres-sional office does nothing more than for-ward the request to the federal agency, therequest may receive attention that it other-wise would not. Congressional requestsmaybe color coded and given the highestpriority.

The emphasis on federal litigation maycause us to forget that the remedy may liewithin the state legislative process. If youare challenging a state law as illegalunder a federal law or regulation, youmay appeal directly to the state legisla-ture to change the law possibly through a

friendly legislator familiar with yourorganization or cause. Where the state’sinterest is in the practical administra-tion of a shared state-federal program,or in the efficient working of state andlocal government, you may be able toadvocate a change in the state law tobring it into compliance. There is not,however, much you can do if state law-makers are dug in on ideological orpolitical grounds.

Legislative reform is a topic too large forthis discussion. Yet, as many courtsbecome more hostile to our clients’claims, the legislative process cannot beignored. In general, success in the leg-islative arena depends on knowing theplayers and in being part of a largercoalition pressing for change. An excel-lent example of an area in which legal aidattorneys have had legislative success isin the passage of state legislation pro-tecting low-income homeowners frompredatory lending practices.

3. Press and MediaNewspapers and other media can be use-ful in several ways. First, publicity andarticles can get your message out andshape public opinion. This is especiallyuseful if you need public opinion to sup-port your lobbying efforts or if you wishto encourage the public to take a particu-lar action. Second, an article or story canreflect public opinion and can bolsteryour moral standing or give a margin ofcomfort for a judge who might otherwisebe afraid to issue a novel order. Third,the news reporting can serve as anothersource of fact finding and can force youradversaries to pin down their position asthey are quoted. Fourth, readers of anarticle may bring further evidence orpotential plaintiffs to your attention.

When you approach the media, you mustdo so with an understanding of the waythe media operate. In most cases thereporter is interested in the general pub-lic interest of the story. Very few localreporters have the resources for true

18LSC regulations also require certain procedures to be followed with respect to prelitigation negotiation and the filingof litigation. 45 C.F.R. §§ 1636, 1644.

19Restricted programs are expressly permitted to “advise the client of the client’s right to communicate directly with anelected official.” 45 C.F.R. § 1612.5(c)(6).



investigative reporting. The pressrelease may form the core of the storyand may represent all that the reporterknows about the issue. Commonly thereporter will call you and your adversaryfor a quote. You should have a quote pre-pared, and you should understand thatthe reporter will listen to your articulateexplanation and will pull out the onesentence you wish you had never said.You can start the conversation by sayingthat you would like to give some infor-mation on background and then indicatewhen you want to be quoted, but suchcontrol is not always granted or honored.

If you are going to use the media, or areforced by your adversary into doing so,you must create a message that will beunderstandable and persuasive to youraudience. A radio or television interviewis not the time to talk about motions todismiss and burdens of proof. It is thetime to think in sound bites, just as whenyou were first formulating the solution toyour client’s problem.

If you work at it, you will be able to devel-op a relationship with a reporter who isinterested in your story. You will be ableto give background information to thereporter, and the reporter may be willingto share information obtained during aninterview or investigation. Do not belulled, however, into thinking that thereporter is on your side or your friend.You may find your confessions anddoubts incorporated into a future article.

In general you can contact the media inthree ways. You can simply call the citydesk, relevant beat reporter, or areporter with whom you have a relation-ship. You can issue a press release thatconforms to the format used in yourcommunity. You can call a press confer-ence by issuing a press release or makingdirect calls and inviting the media toappear at a particular time and place. Youcan often attract a lot of attention bydoing this, despite the short attentionspan of the media. The press conferenceshould be planned with as much care as

an oral argument; you should include thesound bites you want aired and be pre-pared for challenging questions.

A client or group representative as aspokesperson makes the story moreimmediate. An attorney as the spokesper-son can project a level of seriousness,knowledge, and intent. Often a combina-tion of both works best. You should pre-pare the client and practice, just as youwould for testimony.

You can also approach the editorial boardof the newspaper to attempt to solicit afavorable editorial. Usually you can ask toarrange a meeting with the editorialboard or representative where you willhave an opportunity to present your storyand argue your position. Even if you donot obtain a favorable editorial, the off-the-record remarks and feedback youobtain from the editorial board can serveas a useful barometer of communityresponse.

To insure internal control of your mediastrategy, you should have a clear under-standing within your office, your litiga-tion team, and your client as to howmedia inquiries will be handled. In gen-eral one attorney in your office should bethe point of contact with the media forthe case, and that attorney should knowand understand the media strategy forthe litigation. Your agreement with yourclient as to how media inquiries will behandled should be in the retainer.

4. Community EducationCommunity education is one of the mostimportant undertakings of a legal servic-es attorney.20 In most circumstances itwill also be an adjunct to litigation.Community education may be particu-larly necessary when you are trying tolocate plaintiffs or witnesses or when youwant to test the capacity of a public sys-tem. For instance, before commencinglitigation to challenge the failure of aparatransit system to comply with theAmericans with Disabilities Act, theattorneys and the organizational client

20LSC-funded attorneys may not conduct or support training that advocates a specific public policy. 45 C.F.R. § 1612.8.



educated potential riders of their rights,surveyed people with disabilities abouttheir experiences with the system, andobtained data about noncompliance as aresult. Community education can beespecially useful after you have settled orwon the case to let people know about thenew resources available to them or thenew rules that will apply to them. In fact,you can include community education aspart of your settlement or request forrelief.

When you engage in community educa-tion, you must be sensitive to the formsof communication best understood andappreciated by your target audience andtheir spoken languages. You shouldalways consider alternate formats, suchas large print, tape, and Braille for peo-ple with visual impairments, and theavailability of interpreters when con-ducting outreach and community pre-sentations.

5. Direct Action and CommunityDevelopment Work

Direct action can refer to two differentapproaches to obtaining your desiredsolution. First, you can simply fix orcoordinate the fixing of the problem. Forinstance, a client contacted a legal serv-ices lawyer as the defendant in a lawsuitinitiated by her town to declare herhouse an imminent health hazard and toraze it. Legally the attorney could haveraised procedural defenses or counter-claims relating to the client’s disability.Instead the lawyer contacted a local com-munity group that, working with a localchurch, sent a team of people and adumpster to the house. The volunteerteam cleared out years of debris, clearedout the rats, and performed some emer-gency repairs. The only legal work theattorney had to do was to negotiate foradditional time and be present in courtwhen the town withdrew its case.

Direct action can also mean mobilizing agroup of people to apply pressure to thegovernment or other entity to obtain aspecific result.21 Disability groups have

engaged in direct action, often in con-junction with litigation, to obtain acces-sible transportation or access to publicbuildings. Direct action in your casemight occur on a smaller scale. It may beas simple as turning out a crowd at a pub-lic hearing or in the courtroom. It may bea sit-in at the welfare office to protest anew rule or at a local restaurant to obtainan accessible restroom. In most casescombining direct action with a mediastrategy is useful.

Community development work involvesthe use of public, community resourcesto obtain the desired results. It can referspecifically to becoming involved in yourtown, city, or state’s process for alloca-tion of federal and state communitydevelopment dollars. It can also meanworking with a local not-for-profit orfor-profit development company to cre-ate housing, job opportunities, or othercommunity enhancements.

6. Amicus ParticipationOne alternative to the substantial invest-ment of time and resources required forthe preparation, initiation, and prosecu-tion of direct litigation on behalf of yourclients is to participate, selectively andstrategically, in pending lawsuits involv-ing other parties which have raised thesame or similar issues.

The Amicus Curiae. Through the vehicle ofthe amicus curiae—the “friend of thecourt”—legal aid attorneys can vigorouslyrepresent their clients’ interests, often inthe context of precedent-setting decisions,without formally initiating, or interveningin, the underlying litigation. Amicus par-ticipation thus affords attorneys, whileavoiding most of the resource constraintsimposed by conventional litigation, theopportunity to influence directly andimmediately the outcome of cases whichmay dramatically affect their clients’ lives.

Unlike their counterparts in many otherpublic interest law organizations, legal aidadvocates do not routinely participate asamici in cases involving other parties, butgiven

21LSC regulations prohibit attorneys in LSC-funded programs from grassroots lobbying, 45 C.F.R. § 1612.4, engaging ininter alia public demonstrations or civil disturbances during working hours, 45 C.F.R. § 1612.7, or organizing, 45 C.F.R.§ 1612.9.



■ the modern expended role of the ami-cus curiae in federal litigation22 and

■ the increasing success of amicus argu-ments presented by a wide variety ofinterest groups, including conserva-tive public interest organizations,23

legal aid advocates should more fully uti-lize this effective (and efficient) alterna-tive to direct litigation.24

Role of the Amicus. Historically theamicus was a disinterested judicial advi-sor called upon only in rare or uniquecircumstances, sometimes offering amechanism for the articulation of third-party interests not otherwise before thecourt.25 Its original role “was to provideimpartial information on matters of lawabout which there was doubt, especiallyin matters of public interest.”26 Overtime the role of the amicus curiaeevolved to encompass overt advocacy onbehalf of the amicus organization’s legalposition, and modern amici invariablyprovide active support for one or moreparties to the litigation.27 Indeed, undercurrent federal rules, an amicus seekingleave to participate in a case must articu-late its specific interest in the litigation,identify the party that it intends to sup-port, and (in the U.S. Supreme Court)

disclose certain relationships which mayexist between the amicus and the partiesto the case.28

The Amicus Brief. Typically an amicussimply submits a brief in support of itslegal position. Under the federal appel-late rules, such briefs may be filed “onlyif accompanied by written consent of allparties, or by leave of court granted onmotion, or at the request of the court.”29

Generally an amicus who is unable toobtain the requisite consent will file amotion for leave to file its brief and at thesame time “conditionally file” the briefitself—a procedure permitted under Rule29.30 The motion must identify the“interest of the applicant,” and the briefshould be filed (or conditionally filed)within the same time allowed for theparty whose position the amicus sup-ports.31

A similar procedure governs amicus par-ticipation in the Supreme Court and isset forth in Supreme Court Rule 37.Although Rule 37.2 states that motionsfor leave to file an amicus brief after theparties refuse to consent are “disfa-vored,” in practice the Court currentlygrants “nearly all” motions for leave tofile an amicus brief, even when consentis denied by a party.32

22See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Briefs on the Supreme Court, 148 U.PENNSYLVANIA LAW REVIEW 743 (2000).

23Kenneth Jost, The Amicus Industry: Conservatives Catch Up with Liberals in Getting the Attention of the SupremeCourt, CALIFORNIA LAWYER, Oct. 2001, at 40.

24For an extensive discussion of the role of the amicus curiae, and for examples of its application to legal services advo-cacy, see Gary F. Smith & Beth E. Terrell, The Amicus Curiae: A Powerful Friend for Poverty Law Advocates, 29CLEARINGHOUSE REVIEW 772 (Nov.–Dec. 1995).

25Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE LAW JOURNAL 694, 696–97 (1963).

26United States v. State of Michigan, 940 F.2d 143, 164 (6th Cir. 1991). A few courts are still reluctant to depart fromthis “orthodox” formulation and allow amici only a “very limited adversary” role through briefing or oral argument orboth. Id. at 165.

27See Krislov, supra note 25, at 695–96; Funbus Systems Inc. v. California Public Utilities Commission, 801 F.2d 1120,1125 (9th Cir. 1986) (partisan advocacy by amici is “perfectly permissible”).

28See S. Ct. R. 37; Fed. R. App. P. 29. In 1997 the Supreme Court added a provision requiring all amicus briefs to dis-close (1) whether counsel for a party authored any part of the brief and (2) every person or entity, other than the ami-cus and its counsel, that made a monetary contribution toward the preparation of the brief. S. Ct. R. 37.6.

29Fed. R. App. P. 29.

30Id.

31Id.

32Kearney & Merrill, supra note 22, at 760. As a result, parties represented by experienced lawyers in the Supreme Courtrarely refuse consent for leave to file an amicus brief. Id.



No express provision in the FederalRules of Civil Procedure applies to ami-cus advocacy in the district courts.However, those courts might well lookfor guidance to Federal Rule of AppellateProcedure 29, and an amicus seeking tobe heard in the district court should fol-low the process set forth in Rule 29.33

Contents of the Brief. An amicus brief canserve a variety of functions. It can target aspecific weakness in a party’s argument,develop variations on the argumentsmade by the parties, and present emotiveor otherwise “risky” arguments that aparty cannot or should not address.34

Often an amicus brief can serve as animportant factual supplement to therecord or furnish relevant technical dataor background information not other-wise available to the court.35

The overall influence of amicus advocacyupon court decisions is quite difficult tomeasure in objective terms.36 However,many organizations that regularly appearas amici point to “the frequent citation ofamicus briefs in Justice’s opinions” assupport for the commonsense inferencethat “the [U.S. Supreme] Court oftenfinds such briefs helpful.”37

New Issues or Arguments. Often an amicusmay seek to argue a legal theory or raise alegal issue that the parties themselveshave not argued or raised. As a rule,courts are reluctant to permit an amicus“to interject into a case issues which thelitigants, whatever their reasons mightbe, have chosen to ignore.”38 This prin-ciple is merely a corollary to the morebasic jurisprudential prohibition againstthe consideration of issues that are not

■ argued in the lower court39 or

■ raised in the appellant’s openingbrief.40

However, courts often exercise their dis-cretion to rule upon new issues raised byamici

■ when “the issue is purely one of lawand either does not affect or rely uponthe factual record developed by theparties”41 or

■ where “exceptional circumstances”warrant consideration of the argu-ment.42

Courts will find such “exceptional cir-cumstances”

33See United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D. N.Y. 1991) (denying leave to file an amicus brief after con-sideration of the Rule 29 factors).

34See Krislov, supra n. 25, at 711.

35These are sometimes called “Brandeis briefs,” after a famous turn-of-the century filing by future Supreme CourtJustice Louis Brandeis, who urged support of a law limiting women workers to ten hours per day by packing his briefwith sociological data about the negative effect of excessive hours on workers’ health. Muller v. Oregon, 208 U.S. 412(1908).

36For an extensive empirical analysis of the influence of amicus briefs upon Supreme Court decisions, see Kearney &Merrill, supra note 22, at 828–30.

37Id. at 745 (Court made reference to an amicus brief in nearly 30 percent of decisions, in cases where at least one ami-cus brief was filed, over a fifty-year period).

38Lane v. First National Bank, 871 F.2d 175 (lst Cir. 1989). See Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994).

39See, e.g., Service Employees Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir. 1994); McCoy v. MassachusettsInstitute of Technology, 950 F.2d 13, 22 (1st Cir. 1991).

40E.g., Continental Insurance Co. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d 977, 985 (8th Cir. 1988) (enbanc); Preservation Coalition Inc. v. Pierce, 667 F.2d 851, 861–62 (9th Cir. 1982); Consumers Union v. Federal PowerCommission, 510 F.2d 656, 662 n.9 (D.C. Cir. 1974).

41Hamilton v. Madigan, 961 F.2d 838, 841 n.6 (9th Cir. 1992).

42Resident Council of Allen Partway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043,1049 (5th Cir. 1993); Preservation Coalition, 667 F.2d at 862. Courts also will consider whether all parties have had a fairopportunity to brief the issue. Continental Insurance, 842 F.2d at 985.



■ when the issue presents “a significantquestion of general impact,”43

■ where the issue implicates “substantialpublic interest,”44 or

■ where failure to consider the issue wouldcause an “unduly harsh” result.45

Furthermore, since the federal courtshave an independent and continuingobligation to resolve jurisdictional ques-tions, even when not raised by the par-ties, an amicus who presents such issuesmay in fact be “welcomed.”46

The Supreme Court, consistent withthese principles, has sometimesexpressly refused to consider issuesraised solely by an amicus.47 However,the Court periodically deviates from thisgeneral rule and bases its decision on anargument presented only in an amicusbrief.48 Hence amici organizations andtheir counsel certainly are not deterredfrom offering new issues or theories forthe Court’s consideration.

An amicus (or any other party on appeal)who offers new legal theories or alterna-tive legal grounds in support of the lowercourt’s judgment will benefit from the“settled rule” that holds “if the decisionbelow is correct, it must be affirmed,

although the lower court relied upon awrong ground or gave a wrong rea-son.”49 Thus a reviewing court “mayaffirm on any ground supported by therecord even if it differs from the reason-ing of the district court.”50 An amicuswho argues in support of the lowercourt’s disposition therefore should beaccorded greater latitude in presentingnew or alternative claims on appeal.

Reply Briefs and Oral Argument. TheSupreme Court prohibits the filing ofamicus reply briefs.51 Other federalcourts have adopted the same rule.52

However, an amicus that has been per-mitted to file a brief in connection with apetition for certiorari or other discre-tionary review (e.g., a rehearing orrehearing en banc in the court ofappeals) certainly may seek to partici-pate in the briefing on the merits ifreview is granted.53

Both the Supreme Court and federalappellate rules indicate that a motion byan amicus to participate in oral argumentwill be granted only for “extraordinary”reasons, particularly where the partywhose position the amicus supports doesnot consent to share its allotted argu-ment time.54 However, in significantcases the courts of appeals are probably

43Service Employees Union, 35 F.3d at 487.

44Continental Insurance, 842 F.2d at 985; Consumers Union, 510 F.2d at 662; Platis v. United States, 409 F.2d 1009,1012 (10th Cir. 1969).

45Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n.1 (9th Cir. 1970).

46Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994); General Engineering Corp. v. Virgin Islands Water and PowerAuthority, 805 F.2d 88, 92 n.5 (3d Cir. 1986); American Meat Institute v. Environmental Protection Authority, 526 F.2d442, 449 (7th Cir. 1975) (court “required” to consider jurisdictional issues raised by amici).

47See, e.g., United Parcel Service Inc. v. Mitchell, 451 U.S. 56, 60, n.2 (1981).

48See, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion); see also Kearney & Merrill, supra n. 22, at 745,n.5 (collecting cases).

49Helvering v. Gowran, 302 U.S. 238, 245 (1937) (emphasis added).

50Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994); see also DELTA v. Humane Society, 50 F.3d 710, 712 (9th Cir.1995).

51S. Ct. R. 27.3.

52See, e.g., Ninth Cir. R. 29-1.

53See, e.g., Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc) (legal services advocate permitted to file amicusbrief on the merits and to participate in oral argument after filing brief in support of successful petition for rehearing enbanc).

54S. Ct. R. 28.7; Fed. R. App. P. 29.



more likely than the Supreme Court topermit argument by an amicus, and theallied parties to the litigation are morelikely to share their argument time.55

Advantages and Disadvantages ofAmicus Participation. Many traditionalpublic interest law organizations havelong favored amicus participation as aresource-efficient way to concentratetheir advocacy upon cases which appearpoised for a precedent-setting decisionin order to obtain the most direct andimmediate impact for their con-stituents. Direct litigation may consumeyears of time and expenses, with noguarantees that the outcome, even iffavorable, will establish any lastingprecedent.

However, the limited role of the amicuscuriae places significant constraintsupon the use of the amicus vehicle as astrategic option, and legal aid advocatesmust always consider whether directinitiation of litigation (or formal inter-vention in pending litigation) betterserves their clients’ interests. For exam-ple, because amici lack formal party sta-tus, now well settled is that an amicusmay not, on its own, appeal a lower courtjudgment; seek rehearing or other dis-cretionary review; broaden the scope ofthe remedy or seek relief not requestedby the parties; or (generally) obtainattorney fees and costs.56 Advocateswho become aware of significant cases atthe trial level should consider whetherintervention in the litigation is the mostappropriate means to protect theirclients’ interests, particularly if no cur-rent party to the litigation apparently ismotivated to protect those interests, orto appeal an adverse judgment.57

Practical Considerations. Watchfullegal aid advocates will discover signifi-cant opportunities to advance theirclients’ interests in the context of litiga-tion between other parties. Legal aidattorneys successfully have provided avoice for their clients through amicusappearances in important cases involv-ing bankruptcy, consumer protection,civil rights, housing, and social securityissues.58 Counsel who seek to partici-pate as amici in appropriate litigationshould collaborate as closely as possiblewith the party to be supported in orderto coordinate briefing and argumentstrategy. Obviously all amicus advocacyshould be done, with appropriateretainer agreements, on behalf of a cur-rent client or clients who have a stake inthe outcome of the case at issue. Oftenthe actual “amicus” is an organization orassociation with goals or missions rele-vant to the issues being litigated, and thelegal services advocate serves as counselto the amicus organization.59 Where thelegal services organization itself carriescredibility with the court, it may appearas amicus in its own right.60

Advocates who are attuned to the possi-bilities of amicus participation mayrealize some significant corollary bene-fits for their general practice. Regularmonitoring of other cases raising issuesof significance to clients will certainlyincrease awareness of the opportunity(or perhaps the necessity) for advocacyon those issues in a variety of forums.Amicus participation also can be a cata-lyst for greater networking and collabo-rative efforts with advocates in both theprivate and public interest sector.Counsel who regularly consider the

55The Supreme Court does not favor “divided argument,” S. Ct. R. 28.4, and counsel for the parties in cases before theCourt rarely agree to share their argument time with amici. See Smith & Terrell, supra note 24, at 780.

56Smith & Terrell, supra note 24, at 783–87.

57Id. at 787–88.

58Id. at 787 and n.152 (listing examples).

59Id. at 792 and notes 192–94.

60Id. Counsel should of course obtain approval of the board of directors before formally involving the legal servicesorganization itself in any litigation. LSC-funded attorneys may not participate as amici in class action litigation. 45 C.F.R.§ 1617.



opportunities and possibilities of ami-cus advocacy will be more likely toobtain an advantage in their own litiga-tion by inviting the participation ofinfluential organizations and allies toserve as their clients’ amici in appropri-ate cases.

III. Crafting and Preparing the Lawsuit

Sound legal practice, as well as Rule 11,requires you to engage in a reasonablefactual investigation prior to filing alawsuit.

A. Factual Investigation

Your first source of information aboutthe case usually will be the client. Thereare many texts devoted to the art andpractice of client interviewing.61 Spacedoes not permit a review of interviewingtechnique. Suffice it to say that effectiveclient interviewing is essential to thesuccess of litigation. A sloppy interviewcan lead to missed facts, omitted legalclaims, litigation delays, and worse.Young attorneys should conduct theirfirst few client interviews in the pres-ence of a senior colleague prepared togive detailed feedback.

1. The Attorney-Client RelationshipEven before filing the complaint, youmay well interview or review the factswith the client for several purposes andon several occasions. At intake yourfocus will be on obtaining an overview ofthe legal issue to see whether it meetsyour program’s priorities, ascertainingthe immediacy of the client’s need, anddetermining if the client meets incomeand other program requirements. Onceeligibility for service has been estab-lished, you will likely conduct a detailedinterview in order to establish an attor-

ney-client relationship, complete aretainer and learn necessary facts so thatyou can conduct relevant legal research,investigate further facts, evaluate themerits of the case and determine yourcase strategy. As you are doing so, youwill likely have occasion to consult withyour client to clarify and confirm facts,report on your ongoing efforts, surveyoptions, and obtain direction andinstructions from your client. Anothermeeting should be scheduled with theclient to review the draft complaint.

Clients often do not understand why theyhave to tell their story repeatedly; theymay feel that counsel are not listening tothem or understanding them. Thus beingclear about the purpose of the interviewand letting clients know early on that theywill have to tell the same story many timescan ease the attorney-client relationship.You will also need to ask questions thatmay upset or offend the client. If youestablish that you are on the client’s teamand that you are asking the kind of ques-tions the other side is sure to ask or thatthe judge will want to know, the client willunderstand that you are trying to help.62

Good practice, as well as many states,bar rules, and legal services programs,requires that counsel and client enterinto a formal written retainer. Not onlywill the retainer authorize you to filesuit, but also it will address such criticalissues as class action authorization,attorney fees, costs, and settlement.Retainers generally lay out the attorney’sand the client’s responsibilities and thescope of the representation, such as theneed to reconsider representation if thecase is appealed. You may need to havethe client sign releases to obtain infor-mation from health care providers,housing providers, schools, policedepartments, and the like.

61See ROBERT M. BASTRESS & JOSEPH D. HARBOUGH, INTERVIEWING, COUNSELING, AND NEGOTIATING: SKILLS FOR EFFECTIVE REPRESENTATION

(1990); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH (1977).

62Throughout the case, the attorney-client relationship must be supported by clear and regular communication. Regular,direct, explicit communication and information will keep you and the client working together as a productive team. Evenif you have no “news” to share, an update call or letter just to let the client know the case status is sound legal prac-tice. Confirming letters to the client, in addition to your case log or notes, can help the client keep track of information.Needless to say, they also help you if the client later denies facts told to you or claims that you mishandled the case;nonetheless the main purpose of the letters is to give information and to reinforce a working relationship.



2. Informal InvestigationThe goal of prefiling factual investiga-tion is twofold. First, you must under-stand the facts so that you can advocatemost effectively. Second, you can obtainevidence for trial or leads on the sort ofinformation to ask for in discovery. Donot allow evidentiary constraints torestrict your informal investigation.Obtaining witness statements contain-ing hearsay or unauthenticated docu-ments is perfectly acceptable, if notinevitable. You will be able to deal withthe evidentiary issues should they ariselater in the litigation. To do so, however,you should keep careful track of when,how, and under what circumstances youreceived particular information.

The extent of your prefiling investiga-tion will depend on the needs of thecase, time restrictions, and your avail-able resources. You need to be flexibleand creative in identifying sources ofinformation other than the client. Whenappropriate, and with the consent of theclient, interview the family, associates,friends, and the client’s coworkers.Such individuals may be indispensablesources of information and should beinterviewed with an eye to obtainingdetailed statements. After completingthe interview, prepare a handwrittenstatement in the first person, and pres-ent it to the individual to read and sign.Return later with a typed statement to besigned and, if necessary, notarized.63

Whenever possible, the statementsshould be in declaration or affidavitform so that they may be used to supportpleadings or to oppose motions for sum-mary judgment.

Talk to other people affected by the chal-lenged policy. Consult with otherlawyers who, you believe, may be inves-tigating or litigating similar issues. Readnewspaper and magazine accounts.Examine relevant governmental or aca-demic reports. While you as the attorneywill ultimately want to review all the

information and talk to witnesses andinformants, students and volunteers canbe very helpful in the early stages ofinvestigation. They can take photo-graphs, call similarly situated individu-als, and camp out in front of the localwelfare office to interview people.

A potentially important source of inves-tigation, however, may be those arrayedon the other side. These may be staff of ahousing authority, a state or county wel-fare agency, a school or juvenile deten-tion facility, a private or public employ-er. The temptation is to ignore suchpeople until after suit, when discoverydevices may be employed. Usually, how-ever, investigation should extend to theopposition prior to suit.64 Considerthree reasons for doing so. First, the suititself may dry up sources of informationor create such hostility that cooperationis denied. Second, information gatheredprior to suit will help you draft pleadingsand frame theories. Third, full investi-gation prior to suit will deflect motionsfor sanctions under Rule 11.

Inquiries and investigation directedtoward the opposition will sometimesmeet with surprising success. Forinstance, employees in a state or countyagency may question or oppose the poli-cies that they enforce. Prior to suit, theymay be free to meet and discuss thosepolicies and make information or mate-rials available. Also, before litigation isfiled, agencies may have ongoing rela-tions or meetings with clients; duringsuch meetings disclosure of informationmay occur. Be aware of the pros and consof playing your litigation card close toyour vest. Some adversaries may preferto offer information that will supporttheir position or lead to settlement.Others will shut down completely if theyknow litigation is in the offing. If youneed to retain a working relationshipwith the other side, you may destroy thatrelationship if you obtain informationusing your friendships or goodwill and

63In federal practice, notarization is not needed; instead of affidavits, one uses declarations made under penalty of perjury. See 28 U.S.C. § 1746.

64See FEDERAL PRACTICE MANUAL, supra note 13, ch. 6, sec. I, for a discussion of the ethical issues governing such interviews.



then the information turns up in litiga-tion. Openness versus subtlety is a con-sideration during all stages of litigation.

Some states have sunshine laws or publicrecord laws that provide full or limitedaccess to agency records. On the federallevel, there is the Freedom ofInformation Act.65 Apart from thesestatutory or regulatory provisions, for-mal requests or letters of inquiry mayproduce useful information that can helpyou draft the complaint. Of greater for-mality, but still prior to a suit, a Freedomof Information lawsuit itself may be ofuse; such a legal action may yield valu-able information for framing a subse-quent suit on the merits.

Moreover, many local and state govern-ment agencies must periodically reportto the sources of their appropriations.Federal and state oversight agencies maysimilarly audit or analyze the agency.Such reports and audits can be enor-mously valuable in surfacing informa-tion regarding agency policies and cri-tique of them. Careful advocacy with themonitoring agency or committee maylead it to inquire further, requiring themonitored agency to prepare additionalreports. Other persons or institutionsconcerned with the issues that you raisemay be sources of valuable information.

When data are obtainable, the next stepis analyzing them. If you do not havefacility with spreadsheets, mapping soft-ware, or other programs that can turnnumbers into information, you may beable to use a graduate student as a volun-teer or short-term consultant. Local uni-versities can be great sources of help forstatistical, economic, and sociologicalanalysis. Some professors have beenwilling to assign legal services case dataanalysis as a class or homework project.

Likewise, investigation may be usefulwhen directed toward related disci-plines. A housing case may be helped byliterature or expertise from the fields of

social work, architecture, or planning. Awelfare case may be assisted by thosewho teach, write, or study in the fields ofsocial work or public health. A correc-tions case may turn upon testimony orresearch from experts in corrections orcriminal justice. As attorneys, we tend tobe narrow in training and perspective.Other disciplines may yield theories forlitigation, authority, and scholarship aswell as expert witnesses.

Pre- or postfiling consultation withexperts does raise discovery issues.66

Whether information relating to yourexpert is discoverable will turn largely onwhether the expert will testify at trial. Ifyou have merely consulted with an expertin connection with preparing for litiga-tion, information relating to the expert isdiscoverable only if permitted by FederalRule of Civil Procedure 35(b) or ifextraordinary circumstances are shown.

The Internet can be a valuable source ofinformation. If your office uses Lexis,Westlaw, or any other online legal orinformation service, consulting withyour service representative about neededinformation is well worth your time. Youmay find that some resources have noadded cost. You may be unaware of somethat are targeted to nonattorneys, thoseresources may have information aboutbusinesses, corporations, investors, andowners. In this age of information tech-nology, you can also search dockets to seewhat other cases in which the parties,attorneys, and judges have beeninvolved. You can access a variety of legalaid list-serves usually by signing up witha national back up center and list-servessponsored by national attorney associa-tions, such as the National Association ofConsumer Advocates and the Associationof Trial Lawyers of America. A quick postabout a potential defendant may result innetworking with an attorney who hashandled a case against the same partyand is willing to share discovery andstrategy with you.

655 U.S.C. §§ 552 et seq.

66See FEDERAL PRACTICE MANUAL, supra note 13, ch. 6, sec. I.



3. Organizing Factual InformationOrganization of the facts and the fileshould begin as soon as you know thatyou will commence litigation. Your sys-tem should be flexible enough to accom-modate growth of the file. The particularway that you organize your file willdepend on the potential size of the file,the type of case, and your personal style.

Whatever organization system youchoose, you must be able to locate quick-ly the information that you need whenyou need it, and someone else should beable to find the information pretty easi-ly. The latter is a critical piece of respon-sible lawyering—if someone has to takeover the case from you or cover for you inyour absence, your client’s interestsmust not be compromised. Almost allfederal litigation is substantial enoughto require an index to the file as a wholeand an index or master list of evidence.Software is available to help you trackdocuments and evidence.

As you organize and create your file, youshould keep in mind that you are organ-izing each of the following types of docu-ments:

■ Pleadings

■ Correspondence

■ Other court filings, such as motions

■ Records of telephone calls

■ Interview notes and other informalinvestigation

■ Discovery, including demands, respons-es, and the documents produced

■ Documents that your client supplies oryou locate during investigation

■ Legal research

■ Other research

■ Time records

If you are unsure what system will work foryou, using an accordion folder for most of

these divisions is a good place to start. Youcan then create subdivisions by using filefolders for each motion, factual topic, orwitness. Correspondence and phone logsshould be secured into a file to ensure thatthe chronology of the case development ispreserved.

Whether your program is restricted ornot, you must keep accurate timerecords. The biggest mistake attorneysmake in obtaining attorney fees is tounderrecord time and to underestimatethe time that they spent if they do notrecord it contemporaneously.67

Accurate and detailed time recordsensure that if your adversary accuses youof noncooperation, ethical violations, orrule violations you will be able to docu-ment how your case time was spent.Again, many vendors offer timekeepingsoftware.

B. Impact, Law-Reform, and Test-Case Litigation

Your primary purpose in bringing thelitigation may be to get your individualclient what she is entitled to under thelaw. Or you may have a much broaderpurpose. You may want to ensure that thelegal violation does not occur again, tocompensate past victims of the illegalaction, or to change the law entirely.Where the outcome of your case willaffect large numbers of people, your suitcan be considered impact litigation.Where the goal of your litigation is tochange the law or the way the law isinterpreted and applied, your suit can beconsidered law-reform litigation.

In some cases you may be seeking thisbroader relief under well-recognizedlegal principles or by fine-tuning anestablished body of law. In some cir-cumstances, however, you will be seek-ing to push the existing boundaries ofthe law to create new legal rules that willhenceforth determine the issue.68 Suchtest-case litigation uses the specific liti-gation as a vehicle for furthering a socialor legal cause.

67See id., ch. 9, sec. IV, on attorney fees.

68See Fed. R. Civ. P. 11(b)(2).



Bringing test-case litigation, while sim-ilar to any litigation in its day-to-dayprogress, requires extra care in severalareas. The primary difference is theextent to which the litigation teamshapes the case. In some cases you willbring test-case or law-reform litigationbased on the issue that a client bringsinto your office; your client comes seek-ing a solution to his individual problem,but the resolution of the case will havebroad impact. In other cases a commu-nity organization may come to you with anovel legal theory or critical social issue,and the plaintiff will be chosen to framethe facts and claims. Or the plaintiff willengage in an act to challenge a law onlyafter the litigation strategy will havebeen determined. For instance, if acommunity group wants to challenge theway that the local council holds publichearings, you may recommend that on aparticular day a representative commu-nity member attempt to present herviews at the council meeting and berefused the opportunity to speak. A draftcomplaint may have already been pre-pared and you can be ready to file the nextday, while at the same time taking advan-tage of and creating media attention.

That “bad facts make bad law” cannot beemphasized enough. No matter howgood your legal claim, if your clients arecompletely unsympathetic, are respon-sible in good measure for the bad out-come of which you are complaining, orare perceived to be undeserving, theoutcome of the case will not be to yourliking. The court may be forced to rule inyour favor on the law but will do so par-simoniously, and you will not achieveyour broader objectives. Or you will findyourself with a decision that you know tobe wrong on the law and having now set abad precedent that makes the legal land-scape worse than before.

A classic illustration of this principleoccurred in Lassiter v. North Carolina

Department of Social Services.69 Lassiterpresented the question of whether dueprocess required providing counsel toan indigent parent in a proceeding toterminate parental rights. Given thenumber of termination proceedings thattake place in states that did not providecounsel, selecting a client who appearedto be a victim of an uncaring bureaucra-cy would have been possible. Instead thepetitioner chosen to present the ques-tion was a convicted murderer who hadno real hope of release from prisonbefore her child became an adult andwho had been provided counsel in anearlier proceeding. The Supreme Courtrejected her claim in a 5-to-4 decision;one member of the majority concurred,conceding that the question wasextremely close. The answer might wellhave been different if a more sympa-thetic client had been chosen.70

Examples of careful client selectionabound. When attorneys sought to chal-lenge the provisions of the Food StampAct enacted to eliminate unrelatedmembers of a household from foodstamp eligibility, they recognized theimportance of a sympathetic client. Tobring their claim to life, the lawyerschose as the lead plaintiff JacintaMoreno, a farmworker forced by eco-nomic circumstances to share housingwith nonrelatives. The choice of plaintiffshifted the focus of the litigation fromthe propriety of seeking to eliminatehippies’ eligibility for food stamps to theunanticipated effect of the provision onthe neediest. The plaintiff prevailed inthe Supreme Court by a 5-to-4 mar-gin.71

Some of the particular issues that arisein test-case or law-reform litigation are:

■ Likelihood of appeal: Since you arechallenging the status quo, the case islikely to be appealed. Therefore youmust budget for an appeal at thebeginning, prepare your clients for the

69Lassiter v. North Carolina Department of Social Services, 452 U.S. 18 (1981).

70Lassiter is not unique. Wyman v. James, 452 U.S. 18 (1981), and Jackson v. Metropolitan Edison Co., 419 U.S. 345(1974), were made more difficult by unappealing clients.

71U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).



possibility, and create a clear and per-suasive record.

■ Mootness: The defendant may prefer tooffer your client what she wants ratherthan change the system, or over thecourse of the litigation the representativeclient may no longer have a claim as hercircumstances change. Thus you mustconsider how to avoid mootness througha class action, claim for monetary dam-ages, and claims for injunctive ordeclaratory relief.

■ Soliciting clients: Often a legal servicesattorney knows that an issue is out therethrough the attorney’s own experiencewith clients and the community.Although there are some restrictions onsoliciting clients, lawyers may informpotential clients of their rights.72

Nonprofit organizations may solicitpotential litigants to further their publicpolicy goals.73 By working with commu-nity groups you can generally avoid ethi-cal or legal services restriction barriersto locating affected individuals andpotential plaintiffs.74

■ Facts: Even if the law-reform issueseems to be a purely legal issue, do notlose sight of the importance of choos-ing a plaintiff with sympathetic factsthat make a compelling argument forwhy your interpretation of the law iscorrect.

■ Strategic coordination: The need forcoordination with other legal aid pro-grams, state and national backup cen-ters, and other organizations con-cerned with the issue is concomitantwith the responsibility that you take onwhen you engage in test-case or law-reform litigation. By definition yourcase will affect a large number of peo-ple or will change the law. Althoughyou may be sure that your outcome isdesired and your strategy a good one,

you must ensure that you have fullyunderstood the implications of yourlitigation.

■ Practical coordination: You may beworking with multiple cocounsel, ami-cus, and clients. Just as you must planyour file organization early on, youmust coordinate and plan amongcocounsel and others. Who will be leadcounsel? Will you have monthly con-ference calls or meetings for updates?Who has authority to make decisions?What are your expectations for timerecords?

■ Enforcement: It is never too early tothink about how you will enforce a set-tlement or decision should you win.Often you can get a judge to rule inyour favor on the law, but the hardwork comes when you have to figureout how to make it work and stick.75

As noted above, legal services restrictionregulations do not prevent the legalservices attorney from engaging in law-reform or test-case litigation. The regu-lations restrict certain activities and mayalter strategic choices. However, the cre-ative attorney can still change andimprove the system, the laws, the rules,and the practices that affect clients’lives. The eviction case on which you gointo court next week may be the vehiclefor changing the way that the housingauthority gives notices to all its residentswho are sight impaired if you not onlywin your case but also insist on a broad-er solution. You may file a case to obtainunemployment benefits for your clientbut change the definition of misconductin your state. The form of the litigationmay be different, but the commitment,intelligence, creativity, and zeal of legalaid attorneys can still be counted on toprovide our clients with meaningful andeffective representation.

72“[A] State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from solicit-ing business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particu-lar legal problems.” Shapero v. Kentucky Bar Association, 486 U.S. 466, 468 (1988).

73In re Primus, 436 U.S. 412 (1978) (ACLU was such a nonprofit).

7445 C.F.R § 1638.

75On consent decrees see FEDERAL PRACTICE MANUAL, supra note 13, ch. 9, sec. II.



C. Prefiling Negotiation and Offers of Settlement

Most cases resolve through settlementrather than through trial or judicialdetermination. Not considering andpreparing for settlement possibilitiesearly in your planning would be foolish.You must prepare your client for the set-tlement process during one of your ini-tial meetings. The client must under-stand what the ultimate goal of thelitigation would be if you could wineverything and that there may be verygood reasons to be pleased with less. Youshould explain to the client that what isan acceptable settlement will changeover time, as new evidence is evaluated,the investment in the case increases,and the assessment of risks changes.

Sometimes an attempt to settle the casebefore filing the litigation can be veryeffective.76 A demand letter accompaniedby a draft complaint will get attention. Asettlement before filing is very attractive todefendants who do not want negative pub-licity or a record of their involvement inlitigation. It can be useful when the defen-dant wants to comply with the law but youhave been unsuccessful in getting the issueto the attention of the person with theauthority to make the change. It can be achance to obtain informal discovery, as youascertain the defendant’s position andrationales. The disadvantages of a prefilingattempt to settle are the loss of surprise,the possibility of the defendant renderingyour claims moot, and the delay necessaryto engage in prefiling negotiations.

Even where the adverse action seems tobe final and from the highest adverse

authority, a formal request for settle-ment before litigation may be effective ifthe request sets out the facts, detailswhat has been done, states with preci-sion what exactly you want the other sideto do, and sets a precise deadline bywhich you want it done. If you state thatyou will sue if a settlement is not reachedby a date certain, you must be preparedto do so. If you make such a threat and donot carry it out, you will lose your credi-bility and adversely affect your futurenegotiating strength.

Such a letter should be polite but firm. Itshould make clear the strength of yourcase and be suitable to attach as anexhibit to the complaint or futuremotion. The objective is to produce aletter that, when read by a judge, willevoke incredulity at the recipient’s non-compliance. Where time does not per-mit writing such a letter, a telephone callcan accomplish the same result. The callmay later be confirmed by letter.

Even where the adverse action is takendeliberately, the demand letter—espe-cially if coupled with a draft complaint—will send the message that your clienthas a capable, determined, and knowl-edgeable attorney who is about to sueand will initiate the involvement of youropposition’s counsel, who may be able totalk sense into your opponent or urge itto attempt settlement. At the least, theletter will formalize the action, confirmthe authority of the people taking theaction, and set the predicate for judicialreview. Apart from all of this, the requestfor review may set the tone for the injus-tice suffered by the claimant or detail thedamages that the claimant sustained.

76Legal services restriction regulations require, absent narrow exceptions, that certain disclosures be made regardingyour client’s identity to defendants in settlement discussions, and to LSC after litigation is filed, and that certain recordsbe kept before filing the litigation. Your client needs to be aware of, and consent to, such disclosures. See 45 C.F.R. §§ 1636, 1644.