Careful thought and planning must go into a Successful Creative Resolution Strategy from the beginning.
CREATE A STRATEGY WHICH WILL REALISTICALLY MEET OBJECTIVES
- WHAT IS YOUR CAPACITY TO MANAGE LITIGATION?
WHAT AREAS WILL SUFFER IF LITIGATION TAKES PRECEDENCE?
PRETTY MUCH EVERYTHING!
- What are your goals?
What are your adversary's goals?
What are the goals of other parties?
- Who has the power and resources to provide what is desired?
Who had the power and resources to cause the problem to begin with?
- What will cause the person or entities to do what needs to be done?
- How will the organization achieve its client’s goals?
How will you achieve your goals?
How will you prevent your adversary from meeting his goals?
- What resources will be required?
If you aren't a lawyer you are in good shape.
You don't have to pay to access your judiciary; and
although it helps to know the rules which control
the court and the attorneys quite a bit; you don't
have to know anything; you have a right to access
- Can other organizations meaningfully and helpfully participate in the effort?
Not when their own bad investments led to the causation of the problem in the first place and
when they are raking in federal money for each and every transaction created. It doesn't matter
if the transactions are positive or negative; they are still transactions.
- When does the organization need to get results?
Can you identify the process you will use?
Can you find a flow chart of the process?
Can you make one by reading the administrative rules?
Add in the timeline and sketch out a plan; a rough draft.
- How long will alternative methods for achieving the client’s goals take?
- What are the benefits and risks involved in potential strategies?
- How will you know when it has succeeded or failed?
If, based on your planning assessment,
litigation is a viable strategy, additional
and somewhat more technical questions
must be asked.
- What are the capacities and limitations of each party involved?
- Who will the parties be?
- What will your claims be?
- On what law will you rely?
- What specific claims for relief will you make?
- In what forum will the suit be filed?
- How will the lawsuit be maintained and financed?
IMAGINE EVERY PARTY'S PERSPECTIVE
- WHO IS? CORPORATE IDENTY; CAPACITY
AGENCY? AGENT? ADVERSARY? PARTIES?
EXPLORE ALTERNATIVE OPTIONS FOR RELIEF:
- Did the agencies procedures comport with principles of due process?
Determine whether the administrative appeal is a mandatory or permissive prerequisite to judicial review.
These administrative appeal procedures should permit the advocate (you) to review the administrative record, to present documents and testimony in a
hearing before a neutral decisionmaker and to question agency representatives. Some procedures have required or permitted options available to mediate the dispute.
In addition to having quasi-judicial procedures for enforcement of a statute,
many agencies have procedures for filing administrative complaints or requests
that an agency commence an investigation into questioned practices.
The advocate should determine whether the agency has formal or informal
processes for such filings and assemble a compelling factual case to persuade
the agency to exercise its discretion to review or investigate the matter at issue.
Advocates may file comments in response to notices of proposed federal or
state rule-making, and many administrative procedure acts permit the filing
of requests to commence a rule-making.
See 45 C.F.R.
- Administrative advocacy can be informal.
Advocates can contact agency personnel and their supervisors,
up to the agency head or attorney or general counsel.
Call agency contacts who have agreed with your position,
or are at least open-minded,
to see if they are willing to take official or unofficial action.
A local administrator is often surprisingly amenable to changing
a local practice if the local agency knows that its federal or state
oversight agency is supportive of the change. Even if unsuccessful,
informal administrative advocacy can serve as informal discovery of
the agency’s position. Keep careful records of your conversations and
commit the agency’s position to writing when possible.
If agency positions conflict with legislative directives, advocates or
their clients may notify the relevant legislator or legislative committee
chair to bring the matter to their attention. Questions from legislative
staff may prompt the agency to reconsider its position or
interpretation. Typically, legislative staff requests are color-coded and
given the highest priority.
Relating to Public Welfare
- LAW OF AGENCY
OTHER OPTIONS FOR
- DIRECT COMMUNITY ACTION
- AMICUS BRIEF (FRIEND OF THE COURT)
Factors for Strategic Consideration
- WHO IS YOUR ADVERSARY?
- What Are the Capacities and Limitations of Your Adversary?
- Who Can Provide the Relief Sought?
- Time Considerations
- What is your capacity?
What are your limitations?
- WHO IS YOUR ADVERSARY?
DOUBLE CHECK TO MAKE SURE.
Developing the Legal Theory
Sound legal practice, as well as Rule 11, require counsel to
engage in a reasonable factual investigation prior to filing
a lawsuit. The first source of information about the case
usually will be the client. Your adversary many not have done
an adequate investigation, or his motives may not be his clients
best interests but truly the interests of the county are at stake.
IT'S IN THE RULES
- IT'S A
- WHY ARE THESE
ATTORNEYS NOT ALL
ALL CONCERNED ABOUT
THE RULES OF
THEY BREAK EVERY RULE
OVER AND OVER LIKE
IT'S A BIG JOKE; THEY
LIE TO THEIR CLIENTS
AND THEY KNOW IT.
- MODEL RULES PROFESSIONAL RESPONSIBILITY
- A potentially important source of facts may be those persons arrayed on the other side.
These may be staff of a housing authority, a state or county welfare agency, a school or
juvenile detention facility, or a private or public employer. The temptation is to ignore
such people until after suit is filed, when discovery devices may be employed. Usually,
however, investigation should extend to the opposition prior to suit for several reasons.
See Chapter 6.1 of this MANUAL for a discussion of the ethical issues governing such interviews.
Watch for Attorney Malpractice; Error
Throughout the case, the attorney-client relationship must be
supported by clear and regular communication. Regular, direct
and explicit communication and information will keep you and the
client working together as a productive team. Even if you have
no “news” to share, an update call or letter just to let the client
know the case status is sound legal practice. 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.
- The process of identifying potential clients and plaintiffs may implicate
restrictions on soliciting clients, such as those contained in Model Rule
of Professional Conduct 7.3./102/ Nonetheless, lawyers may inform
potential clients of their rights./103/ Nonprofit organizations may solicit
potential litigants to further their public policy goals./104/ By working
with community groups you can generally avoid ethical or legal services
restriction barriers to locating affected individuals and potential plaintiffs./105/
Nonetheless, care should be taken. It is wise to consult your jurisdiction’s
ethical rules and any state bar formal or informal opinions on issues
relating to solicitation of clients.
102. Model Rule of Professional Conduct 7.3 generally prohibits solicitation
of clients when a “significant” motivation for doing so is pecuniary gain.
103. “[A] State may not, consistent with the First and Fourteenth Amendments,
categorically prohibit lawyers from soliciting business for pecuniary gain by
sending truthful and nondeceptive letters to potential clients known to face
particular legal problems.” Shapero v. Kentucky Bar Association , 486 U.S. 466, 468 (1988).
104. In re Primus, 436 U.S. 412 , 443-46(1978) (ACLU was such a nonprofit).
105. 45 C.F.R. § 1638.
The Internet can be a valuable source of information.
Always verfiy authority source; use WhoIs lookup if
you are unsure.
You may find that some resources are available
at no added cost. Some resources targeted to non-attorneys
may have information about businesses, corporations,
investors, and owners. You can also search dockets to
identify other cases in which the parties, attorneys, and
judges have been involved.
- In federal practice, notarization is not needed;
instead of affidavits, one may use declarations
made under penalty of perjury. See 28 U.S.C. § 1746 .
- Whenever possible, the statements should be in declaration or affidavit form
so that they may be used to support motions, such as motions for preliminary
injunction, or to oppose motions for summary judgment.
Evidentiary constraints should not restrict your informal investigation.
Although you should attempt to obtain the most credible form of
information available by, for example, notarizing witness statements
or locating original documents, having official documents certified,
obtaining witness statements containing hearsay or unauthenticated
documents is acceptable.
You can deal with the evidentiary issues should they arise later in
the litigation. To do so, however, you will need to keep careful track
of when, how, and under what circumstances you received particular
information and documents.
Your system should be flexible enough to accommodate growth of the file.
The particular way that you organize your file will depend on its potential size,
the type of case, your personal style, and your program’s use of computer
case management tools.
Whatever organizational system you choose, you must be able to locate
quickly information when you need it, and someone else should be able to
find the information easily. The latter is a critical piece of responsible
advocacy—if someone has to take over the case from you or cover for
you in your absence, your interests must not be compromised.
Almost all federal litigation is substantial enough to require an index to the
file as a whole and an index or master list of evidence. Software is available
to help you track documents and evidence.
As you organize and create your file, keep in mind that you are organizing
each of the following types of documents:
- Correspondence (including e-mail messages)
- Other court filings, such as motions
- Records of telephone calls
- Interview notes and other informal investigation
- Discovery, including demands, responses, and the documents produced
- Documents that your client supplies or you locate during investigation
- Legal research
- Other research
- Time records
- Create subdivisions with file folders for each motion, factual topic, or witness.
- Correspondence and phone logs should be secured into a file to
ensure that the chronology of the case development is preserved.
Use scanning technology to store facts in your computer.
Pre-filing Negotiation and Offers of Settlement
Sometimes an attempt to settle a case before filing litigation can be very effective.
If a party is represented; it is important that you speak only with his or her attorney.
A demand letter accompanied by a draft complaint will get attention. If time permits,
you may also include a draft order or consent decree.
- A settlement before filing is attractive to defendants who do not want negative publicity
or a record of involvement in litigation. It can be useful when the defendant wants to comply
with the law but you have been unsuccessful in getting the issue to the attention of the person
with the authority to make the change. A pre-filing attempt to settle can be a chance to
obtain informal discovery as you ascertain the defendant’s position and reasons for it.
The disadvantages of a pre-filing attempt to settle are the loss of surprise, the possibility of
the defendant rendering your claims moot, and the delay necessary to engage in pre-filing
negotiations. If these efforts result in the prospect of useful negotiations, protect your client's
interest by drafting and entering into a tolling agreement to toll the statute of limitations
during these talks.
Even where the adverse action seems to be final and from the highest authority, a formal
request for settlement before litigation may be effective if it sets out the facts, clearly
explains legal claims and how the defendant is violating the law, states with precision
what you want the other side to do, and sets a clear deadline by which to take action.
If you state that your client will sue if a settlement is not reached by a date certain, you
must be prepared to follow through. If you make such a threat and do not carry it out,
you will lose your credibility and adversely affect future negotiating strength.
A demand letter should be polite but firm. It should make clear the strength of the
case and be suitable to attach as an exhibit to the complaint or a motion.
- The objective is to produce a letter that, when read by a judge, will evoke incredulity
at the recipient’s noncompliance. When time does not permit writing such a letter,
a telephone call can accomplish the same result. Confirm the call later by letter.
Even where the adverse action is taken deliberately, the demand letter—especially
if coupled with a draft complaint—will send the message that your client has a capable,
determined, and knowledgeable attorney who is about to sue. This may initiate the
involvement of your opposition’s counsel, who may be able to talk sense into your
opponent or urge settlement efforts. At the least, the letter and documents provided
can serve as a starting point for post-filing settlement discussions.
Inquiries and investigation, pursued consistent with Rule 4.2, directed toward the opposition
will sometimes meet with surprising success. For instance, employees in a state or county
agency may question or oppose policies that they enforce. Prior to suit, they may be free and
willing to meet and discuss those policies and make information or materials available. Also,
before litigation is filed, agencies may have ongoing relations or meetings with clients; during
such meetings, relevant information may be disclosed. Similarly, required or optional administrative
hearings may offer avenues for obtaining information. Some administrative procedures permit some
measure of discovery. Documents or witnesses may be subpoenaed by the hearing officer or the attorney,
and there is typically an opportunity to review and copy a client’s file. During the course of the hearing,
government employees or hearing officers may be asked about or may disclose information regarding
policies and their enforcement. In such cases, it is useful to ensure the hearing is recorded. At the same
time, if you are too overt in seeking information to support future litigation, these employees may be less
forthcoming and less willing to participate in pre-filing dispute resolution. Openness versus subtlety is a
strategy consideration during all stages of litigation.
Most states have sunshine laws or public record laws that provide full or limited access to agency records,
including plans, communications and internal reports. Indeed, many such records exist online in an agency
website or electronic reading room. On the federal level, there is the Freedom of Information Act (FOIA).
Freedom of Information Act, 5 U.S.C. §§ 552 et seq.
- Apart from these statutory or regulatory provisions, formal requests or letters of
inquiry may produce useful information that can help you draft the complaint.
At the same time, the absence of responsive information may be potentially valuable.
The disclosure of the absence of written policies and procedures governing the
termination of benefits may form the basis of claims that this lack of written guidance
violated both due process principles and the local administrative procedure act. If a
FOIA request is ignored or documents improperly withheld, but are regarded as essential,
a suit to enforce the Freedom of Information Act may be needed. Prior to filing suit, it is
often effective to send the draft complaint to the agency general counsel and again
demand the documents requested.
- DISCOVERY; CHAPTER 6
- If you have merely consulted with an expert in connection with preparing for litigation,
information relating to the expert is discoverable only if permitted by
Federal Rule of Civil Procedure 35(b) or if extraordinary circumstances are shown.
LEGAL & FACTUAL
BASIS FOR CLAIMS
- CORE LEGAL THEORIES
types of legal protections
that may be infringed by
the detrimental actions
STRICT LIABILITY STATUTES;
INTENT OF CONGRESS
- Is there a federal constitutional right or protection that a defendant is violating?
- Is there a state constitutional right or protection that a defendant is violating?
- Is there a federal statute or regulation that a defendant is violating?
- Is there a state or local statutory right or regulation that a defendant is violating?
- Is there a federally approved state/county plan that a defendant is violating?
- Is there a federal, state or local common law right or norm that a defendant is violating?
- Is the defendant engaging in action that violates the federal or state Administrative Procedure Act?
- Finally, draft a paragraph that will serve as the core theory of the case --
the central defining idea that drives your lawsuit. It should summarize,
in a brief and persuasive way, the nature of the wrong committed and
relief sought to remedy it. Written in lay, rather than legal terms, this
fundamental message may be repeated in the opening paragraph of
the complaint, in a press release, or at the beginning of an oral argument.
This clearly defined motivating concept behind the lawsuit should remain
the touchstone that guides the litigation.
- APPLY IT TO
Assemble and study each statutory and
regulatory provision arguably implicated
in the issue.
- Chapters 8, 3, & 9
what public or
the harm alleged
Obtain information from
health care providers,
schools, police departments,
and other entities.
PREPARE A LITIGATION MEMO:
- the legal claims,
- the strength of the claims, and
- the pros and cons of bringing specific claims.
- Identify the applicable statutes and regulations and key cases.
- Drafting the memo will serve as a useful device to refine your thinking,
document your research, share with colleagues, convert into pleadings
or briefs, and defend, if necessary, against a Rule 11 motion.
- Chart is based on Chapter 1 of
Federal Practice Manual for Legal Aid Attorneys
by Lisa Stinocher O'Hanlon; March 11, 2013