Table of Contents >
   Part I. Organizing for Effective Advocacy
(Chapters 3... >
      Chapter 33. Conducting a Direct Action Campaign >
         Section 16. Initiating Legal Action >
             Tools & Checklists - A checklist that summarizes the major points contained in the section. >

Initiating Legal Action

  

Tools & Checklists

 Contributed by Edited by

Tool #1: More on criminal and civil law
Tool #2: The court system

Checklist

Here you will find a checklist summarizing the important points of the section.

Legal Action

__ Your group has met and determined that taking this legal action is your last resort.

__ You have retained the right attorney.

__ You determine whether you have a case.

__ You have decided whether a class action suit is appropriate, both for the situation and for achieving your goals.

__ You have determined that your legal action is a ____criminal lawsuit or a ____civil lawsuit, by deciding what you want to get out of the lawsuit.

__ You decide where to file suit, and whether to use the state or federal courts (if you have choices in any of these areas).

__ If you want to file a criminal action, you have taken your evidence to the police, the FBI, or the prosecutor's office.

__ If a criminal lawsuit you have worked with a state or federal prosecutor who has decided to pursue the lawsuit.

__ If a civil suit, your has decided to file suite against other parties (who may be either private or public entities).

__ You group has, with advice from your attorney, filed suit for money or other payment for injury caused by the defendant.

__ In a civil case, you have decided to not pursue money or other payments, but instead seek an injunction, an apology, or some action on the part of the defendant.

__ You do your research, so you can counter opposition arguments.

__ You anticipate whatever the other side may throw at you.

__ You make allowances for having this legal action in your life for a long period.

Why would you - and why wouldn't you - initiate legal action?

You initiate legal action because:

__ The other party refuses to deal with you at all.

__ You've tried negotiation and/or mediation, and found that the other party wouldn't deal with you in good faith.

__ You want a judge to order mediation, fact-finding, or arbitration to resolve an issue.

__ The other party has made it clear that legal action is the only course it will accept.

__ You know or believe that the other party is about to initiate legal action against you.

__ The other party is doing, or about to do, something so harmful that you have to act quickly and pointedly.

__ Taking legal action is part of a larger strategy to keep the opposition off balance while you work to get a law passed that will make your suit unnecessary.

__ If you win, you may set a legal precedent that helps your cause over the long term.

You hesitate to take legal action because:

__ It's expensive.

__ It's time-consuming.

__ It can be extremely unpleasant.

__ It can destroy current or potential relationships.

__ The effort you put into the lawsuit may take away from your other work as an advocate.

__ There's no guarantee that, after all the expenditure of money, time, good will, reputation, etc., you'll win.

__ If you lose, you may set a legal precedent that hurts your cause over the long term.

 

Tool #1: More on criminal and civil law

1. Criminal law includes felonies and misdemeanors.

  • Felony. A felony is a serious crime, usually defined as punishable by one year or more in prison. Felonies include such violent crimes as murder, armed robbery, and rape, and also some non-violent crimes - embezzlement, burglary, drug dealing, etc. The fact that the possible penalty for a felony is a year or more in jail doesn't mean that someone convicted has to receive that sentence. Actual punishment for a felony can vary from the maximum sentence - which, for a first-degree murder conviction in some states or the federal system, could be death - to probation, community service, restitution (repayment, either in money or some other form), or some other alternative to jail.

  • Misdemeanor. A misdemeanor is a less serious crime, punishable by a short jail term and/or a fine, restitution, community service, probation, or another alternative to jail time. Misdemeanors are usually non-violent - although being involved in a bar brawl or street fight may be classed as a misdemeanor - and include such actions as drug possession, drunk driving, and shoplifting.

In federal cases, and in many states, the prosecutor must bring any serious criminal case first to a Grand Jury to determine whether there is enough evidence to bring an indictment. Federal and most state grand juries are chosen from the same pool of jurors - usually registered voters and/or holders of drivers' licenses - as trial juries. A grand jury, however, meets over a longer period of time (6 months to as long as 36 months for a federal grand jury) than a trial jury, and may do its own investigation as well as hearing witnesses and considering evidence.

The federal government and 23 states (Alabama, Alaska, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia), as well as the District of Columbia have to present serious felonies to the grand jury for possible indictment. In 25 other states, prosecutors have various options, one of which is to seek a grand jury indictment. In the final two states, Connecticut and Pennsylvania, grand juries no longer indict, but are only investigative.

2. Civil law.

Any jury or judge has to make judgments - that's what they're there for. However, the judgments in criminal and civil trials are very different. In a criminal trial, the law is clearly spelled out, and the jury or judge has to decide whether the government has shown "beyond a reasonable doubt" that the defendant has actually violated the law. This may often be a difficult decision to make, but the lines around it are cleanly drawn.

In a civil action, the judgments are of a different nature. First, the jury or judge has to decide - by considering the evidence and testimony - which of the parties is telling the truth (or something closer to the truth), and whether there has actually been an injury to one of the parties. If there has been, then the judgment shifts to deciding on a reasonable compensation for that injury.

This last can open a huge can of worms. Juries angered by the callous behavior of a defendant - or simply angered by the apparent general attitude of large corporations or government agencies - may award huge amounts in damages. Juries and judges may also find that there has been injury, but that it isn't worth any money damages to speak of. You sometimes hear of cases in which the winner is awarded a dollar, or perhaps attorney's fees (which can amount to a large sum if the case has been a long one). Either type of judgment can lead to years of appeals and a big win...for the lawyers.

In short, while all trials are, in some sense, crapshoots, with juries and even judges often influenced by factors other than the law and the facts of the case, civil trials are even more so. This is one of the reasons that the Community Tool Box advises that you exercise extreme caution before deciding to file a lawsuit.

Perhaps the most common outcome of all in a civil suit is that its outcome is not determined as the result of a trial. Even if it goes to the point where a trial is going on, attorneys on both sides are generally negotiating behind the scenes, trying to come to some agreement before the judge or jury beats them to it. The vast majority of civil suits are settled out of court by an agreement negotiated between the parties.

Judge or jury?
The defendant in a civil or criminal action usually has the right to refuse (waive her right to) a jury trial. Defendants in civil suits may do this because they feel a jury will be more likely than a judge to favor an underdog plaintiff, or to be emotionally swayed, rather than attending to the facts of the case. In a criminal case, a defendant who's accused of a particularly nasty crime might feel, again, that a jury will be more emotionally affected by the case than a judge will. Only the defendant has this choice, because US law gives the accused both the benefit of the doubt and the right to be tried by a jury of peers.

Tool #2: The court system

1. Federal courts. The federal court system has three levels, as well as three special courts.

  • The Supreme Court of the United States decides Constitutional issues, and handles cases between or among states, and between or among states and the federal government. It is the "court of last resort," i.e., the highest court of appeals, for any case involving a Constitutional question or a matter of federal law.
  • The 12 Circuit Courts, or Courts of Appeals, cover the 50 states, Puerto Rico, the Virgin Islands, Guam, and the Northern Marianas. They do not decide cases, but hear appeals on questions of the Constitution and of federal law. There is also a 13th Federal Circuit, which has nationwide jurisdiction to hear appeals in special cases, including patent law and cases from the Courts of International Trade and Federal Claims (see below).
  • The 94 Federal District Courts, covering the same geographical area as the Circuit Courts, are the trial courts of the federal system. They hear all serious felony cases dealing with violations of federal law, as well as civil cases with more than $75,000 at stake where the parties are citizens of different states or US citizens and foreign governments. They also try cases where Constitutional issues are raised, and have jurisdiction in matters of maritime law.
  • Special courts include Bankruptcy Court (the federal government has jurisdiction over all bankruptcies); the Court of International Trade, which has jurisdiction over international trade and customs issues; and the Court of Federal Claims, which handles trials and some appeals for all claims - money damages and others - against the federal government.

2. State courts. The court system of each state deals with the laws and constitutional issues of that state. While there is considerable variation in state court systems, the general structure in most cases provides three or four levels of courts:

  • State Supreme Court. The court of last resort on appeals involving state law and the state constitution. In some states, the Supreme Court is the only appeals court, with all other state courts being trial courts.
  • Appeals Court. In states that have an Appeals Court, it functions similarly to the federal Circuit Courts, hearing appeals from the trial courts on issues of law and state constitutionality.
  • General jurisdiction trial courts (District Courts). These courts, located, as you might guess, in different districts around the state so as to be accessible to citizens in all areas, try most civil and criminal cases. In some states, there are two levels of general trial courts, with one handling only the more serious cases.
  • Limited jurisdiction trial courts. These courts are similar to District Courts, but handle only cases having to do with specific areas of law. Some examples might be Traffic Court, Juvenile Court, Probate and Family Court (wills and estates, divorces, child custody), Land and Title Court, and Housing Court.