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

UNDERSTANDING ADVOCACY THROUGH THE COURTS

Lawyer or Evaluator?

Credit: Chris Lysy Aea365 June 13th

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.

A STRATEGIC FRAMEWORK FOR EVALUATING ADVOCACY THROUGH THE COURTS

Framework Goals

1. Articulate evaluation questions

2. Share preliminary measures

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?

SHARING LESSONS LEARNED BY ADVOCATES AND EVALUATORS

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