Strategic Litigation: Advocacy Evaluation’s Latest Frontier
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Transcript of Strategic Litigation: Advocacy Evaluation’s Latest Frontier
Strategic Litigation: Advocacy Evaluation’s Latest Frontier November 13, 2015
Presenters: Kay Sherwood, Independent Consultant
Jared Raynor, TCC Group @JRaynor1
Deepti Sood, TCC Group @DSood26
Tanya Beer, Center for Evaluation Innovation
What We Will Cover Today
1) Understanding Advocacy Through the Courts
2) A Strategic Framework for Evaluating Advocacy Through the Courts
3) Sharing Lessons Learned by Advocates and Evaluators
What is Legal Advocacy?
• What lawyers do
• Legal aide services
• Direct representation (individuals/class)
• Appellate work
• Support implementers
• Craft policy
• Window dressing
• Communication outlet
• Research
Effect of Litigation Decision
Appeal
Court of origination
Pre-adjudication
Court Filing
Identification of client
Identification of problem
Implementation of decision
1 2 3 4 5 6 7 8
Decision Points in Strategic Litigation
Legal advocacy: Same or Different?
1) Complexity & attribution
2) Extended timeframe
3) Changing milestones
4) Shifting context and strategies
5) Tight resources
1) Complexity & attribution
2) Extended timeframe
3) Changing milestones The Next Play
4) Shifting context and strategies
5) Tight resources
Establish contribution Inside Attribution
Focus on interim outcomes & progress Milestone review
Use an approach that is quickly adaptable Track parallel developments
Re-think how you interpret success Trend/additive analysis
Consider timing and keep burden low
Implications for Evaluation
Other Considerations
• Adversarial
• Costly
• Hard to walk away
• Strategy of last resort
• Integration key
• Not an end in and of itself
So, Why Evaluate? 1. Understand progress 2. Resource allocation (docket
analysis tool) 3. Position within a broader
movement 4. Replication 5. Assess value (is it good
enough?) 6. Make explicit outcomes
orientation over means-orientation (how doing the work)
7. Reveal unintended consequences
8. Accountability
Special Considerations
• Sensitivity to “influence” from outside the defined system
• Two clients: actual client and what the client represents
• Exemplary evaluation may be no evaluation
• Role of nonparticipant parties (amicus, judicial inquiry, legal theorists, researchers)
• Justice is not blind—role of values, ethics, etc.
The Framework
• Overall success
• Strategic integration
• Readiness
• Outcomes
• Challenges
• Implementation
• Winning the case? • Setting good precedent? • Creating new policies? • Creating visibility of the
issue? • Empowering the
community?
How to measure overall success?
Work with Mobilization • Mobs helping set the
narrative • Case built on
community views
Work with Legislative or Executive Advocacy • Synchronicity of lobbying efforts • Level of effort to change administrative
procedures
Legal Support • Awareness of cases happening
at the individual level • Ability to help individuals while
pushing a larger case • Ability to find people for a SL
case
Public Awareness or Education • Working with community populations
to address the base of the issue • Number of trainings offered to target
populations • Ability to bring interested community
members into mobs work
Work with Media • Proactive reaching out to media • Relationships built with media • Media featuring the desired
narrative
How is litigation working with
other advocacy strategies?
Access to Resources • Communication resources • Flexible financial funding • Legal expertise
Legal Readiness • Strong case to bring
forward • Good choice of courts • Precedent • Legal team
Vision • Organizational • Existence of previous efforts
through other mechanisms • Comprehensive strategy • Key defendant • Movement or community
How can you assess
readiness for litigation?
Quality of partnerships • Legal partners
• Reputation • Expertise • Capacity
• Community/movement partners
• Advocacy partners
Forced Response • Quality of the response • Ability and necessity to
move forward with response
Opportunity for greatest impact • Number of impacted • Amount of change
possible
Favorability of context • Rulings on recent decisions • Recent laws made on the
subject • Media response covering the
issue
Opportunity for media attention • Amount of media coverage • Quality/spin of media coverage • Sustained coverage
Ability to set the narrative • Litigators able to set the
narrative in media • Litigators able to set the
narrative via the case law
What are the outcomes associated
with litigation?
Standing Barriers • Restrictions on where/how
to bring the case • Changes to court receptivity
to civil rights cases
Resource Barriers • Access to funding • Access to pro-bono lawyers
or legal knowledge • Staff time
Motivational Barriers • Interest of the
movement or coalition in bringing a case
• Ability to sustain motivation among the represented
What are the challenges facing the
case?
What is the Quality of Foundation Funding? • Building networks • General operating
support
How is Legal Partnership Structured? • Pro-bono lawyers • Staffed through one
organization • Amicus contributors • Solo action • Part of a coalition of
public interest orgs
• Implementation through: • Additional litigation • Monitoring • Legislative advocacy • Settlement
• Defense of erosion • Appeals • Managing backlash
What is the quality of the
implementation strategy?
A Case Study
• The 8th Amendment to the U.S. Constitution governs state and federal law allowing (or restricting) the execution of people convicted of capital crimes. Adopted in 1791 as part of the Bill of Rights, it states:
• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Who Decides?
• The U.S. Supreme Court is the ultimate decider of cases involving capital punishment when interpretation of the 8th Amendment to the U.S. Constitution is involved.
History of Advocacy
• Advocacy to repeal the death penalty in the U.S. has included strategies aimed at state legislators, state voters, state executives, and state courts, as well as the justices of the Supreme Court in cases that reach that venue. (Not so much federal lawmakers.)
The Next Stage
• A divided Supreme Court: The “guerilla war” against the death penalty versus the “burning at the stake” punishment of lethal injection, with an invitation from one justice to the advocates.
The Lessons for Advocates
• Litigation strategy is both opportunistic and plotted for a long game.
• At this point, the new development is that litigators see an opportunity to challenge the death penalty on multiple grounds and are ready to respond to Justice Breyer’s invitation when the right case reaches the right stage.
Want More?
• http://www.buzzfeed.com/chrisgeidner/the-most-ambitious-effort-yet-to-abolish-the-death-penalty-i#.mfewyERZ1
CONTACT US
Jared Raynor [email protected]
@jraynor1
Kay Sherwood [email protected]
Deepti Sood [email protected]
@DSood26
Tanya Beer tbeer@ evaluationinnovation.org
@TCCGRP #eval15