Imagine that a local fair-housing coalition receives repeated reports that Black and Latino prospective homebuyers are being told that homes are unavailable in a particular neighborhood while similarly situated white buyers are shown properties there.
The coalition conducts carefully designed fair-housing testing and finds a consistent pattern of different treatment based on race.
The organization first considers available complaint, administrative, enforcement, and resolution processes.
If those processes do not provide an adequate remedy – or if immediate court action is necessary to protect people's rights – the people affected and the organization may consult qualified legal counsel about possible litigation.
Legal action can sometimes protect rights, stop harmful practices, obtain compensation, clarify legal obligations, or produce broader changes.
It can also involve significant cost, time, uncertainty, and organizational resources.
This section explains how advocates can think about litigation responsibly and work with qualified legal professionals when court action may be appropriate.
Before you start
Legal action is not always the first step – or the last step
Negotiation, mediation, administrative complaints, regulatory enforcement, or other processes may resolve a problem without litigation.
However, do not assume that every possible alternative must be exhausted before consulting a lawyer or going to court.
Prompt legal action may be important when:
- A filing deadline is approaching
- Irreparable harm may occur
- Evidence may be lost or destroyed
- A temporary restraining order or preliminary injunction may be necessary
- A person's safety or legal rights require immediate protection
- A law specifically provides a judicial remedy
- Filing is necessary to preserve a claim
Consulting a lawyer early does not mean that you must file a lawsuit.
Early legal advice can help you understand deadlines, preserve evidence, evaluate alternatives, and avoid unintentionally giving up rights.
Obtain qualified legal advice
Complex or high-stakes litigation usually requires qualified legal counsel.
Individuals may represent themselves in many types of cases, and courts provide resources for people who proceed without an attorney.
However, litigation can involve complicated questions of:
- Jurisdiction
- Standing
- Filing deadlines
- Evidence
- Pleading requirements
- Discovery
- Injunctive relief
- Appeals
- Settlement
Organizations may also face rules requiring them to appear through licensed counsel.
General advocacy guidance is not a substitute for legal advice about a particular case.
What is legal action?
The phrase “legal action” can describe several ways of using legal processes to protect or enforce rights.
This section focuses primarily on civil litigation – lawsuits brought in court by individuals, organizations, businesses, government entities, or other parties.
Legal advocacy may also involve:
- Administrative complaints
- Agency enforcement proceedings
- Appeals
- Petitions for judicial review
- Demand letters
- Negotiated settlements
- Other legally recognized remedies
Civil and criminal proceedings are different
Civil cases
In a civil lawsuit, a plaintiff asks a court to provide a legal remedy for an alleged injury or violation of rights.
Depending on the law and circumstances, a plaintiff may seek:
- Compensatory damages
- Statutory damages
- Punitive damages when legally available
- An injunction
- Declaratory relief
- Specific performance
- Restoration of property or benefits
- Attorney's fees or costs when authorized
- Another remedy permitted by law
Civil litigation should not be described simply as a way to “punish” another party.
Courts provide remedies authorized by the applicable law.
Criminal cases
Criminal prosecution is generally brought by the government rather than by a private advocacy organization or individual.
At the federal level, criminal cases are prosecuted on behalf of the United States by U.S. Attorneys and other federal prosecutors.
State and local prosecutions may be handled by officials whose titles vary by jurisdiction, such as:
- District attorney
- County prosecutor
- State's attorney
- Attorney general
- Another authorized prosecutor
If you believe a crime has occurred, the usual role of an advocate is to report relevant information to the appropriate law-enforcement or prosecutorial authority.
The prosecutor then determines whether criminal charges are appropriate under the applicable law and evidence.
Do not use possible criminal prosecution merely as negotiating leverage
Do not threaten someone with criminal prosecution simply to pressure them into providing a civil settlement or other advantage.
If criminal conduct may have occurred, discuss appropriate reporting and communication with qualified counsel.
Some basic legal terms
In a typical civil lawsuit:
- The plaintiff is the party bringing the claim.
- The defendant is the party against whom the claim is brought.
- A complaint is the document that generally begins a civil lawsuit and states the plaintiff's claims and requested relief.
- Damages are monetary remedies available in some cases.
- An injunction is a court order directing a party to do or stop doing something.
- Declaratory relief asks a court to determine the parties' legal rights or obligations.
- A settlement is an agreement resolving some or all of a dispute without a final trial judgment.
In criminal proceedings, an indictment is a formal accusation returned by a grand jury.
Criminal charging procedures differ between federal and state systems, and not every criminal case begins with an indictment.
Understand the court system
The United States has federal and state court systems.
Federal courts
The principal federal court structure includes:
- U.S. district courts, which are the primary federal trial courts
- U.S. courts of appeals
- The U.S. Supreme Court
The federal judiciary also includes bankruptcy courts and specialized courts that handle particular categories of disputes.
State courts
Each state establishes its own court structure.
State systems commonly include trial courts and a court of last resort, and many states also have intermediate appellate courts or specialized courts.
Names, jurisdiction, procedures, and appeal routes vary.
Do not assume that every federal and state system has the same four levels.
Jurisdiction and venue matter
Before a court can decide a case, it must have legal authority over the dispute and the parties.
Important questions may include:
- Does this court have subject-matter jurisdiction?
- Does it have personal jurisdiction over the defendant?
- Is venue proper?
- Does federal or state law apply?
- Could the case be removed from state to federal court?
- Are administrative remedies required before filing?
These questions can be complicated and should be evaluated with qualified counsel.
Do not describe selecting a court primarily as finding the judge, state, or appellate circuit most sympathetic to your side.
What outcomes can civil litigation provide?
Monetary relief
Depending on the claim, monetary relief may compensate for:
- Financial losses
- Lost wages
- Property damage
- Medical costs
- Other legally recognized injuries
Some laws also authorize statutory or punitive damages under particular circumstances.
Injunctive relief
An injunction may require someone to take an action or prohibit particular conduct.
Depending on the circumstances, a party may seek:
- A temporary restraining order
- A preliminary injunction while litigation proceeds
- A permanent injunction as part of final relief
Emergency relief has specific legal requirements.
The availability and standards depend on the jurisdiction and claim.
Declaratory relief
A court may be asked to determine the parties' legal rights or obligations even when money damages are not the primary goal.
Settlement
Parties may resolve a civil case through settlement.
A settlement may address:
- Money
- Policy changes
- Corrective action
- Future conduct
- Monitoring
- Confidentiality where lawful and appropriate
- Other negotiated terms
Settlement should be evaluated according to the client's interests and legal options, not simply according to a predetermined minimum dollar amount.
When might legal action be appropriate?
There is no universal rule that litigation should occur only after every other tactic has failed.
Legal action may be appropriate when:
- A significant legal right has been violated
- People are experiencing serious or continuing harm
- Irreversible harm may occur without prompt court intervention
- A person or organization needs an injunction
- Compensation or another legal remedy is warranted
- Administrative or informal processes have failed
- Another party refuses to comply with an applicable legal obligation
- A filing deadline requires action
- Judicial interpretation of a law is necessary
- A broader pattern of unlawful conduct may justify systemic relief
Emergency situations
Some actions cannot meaningfully be undone after they occur.
Examples might include:
- Destruction of an irreplaceable resource
- Disclosure of protected information
- Immediate loss of legally protected services
- Continuing discriminatory conduct
- Other imminent and potentially irreparable injury
In those situations, consult counsel promptly about available emergency remedies.
Legal action can have broader effects
Some cases may clarify the meaning of a law or establish precedent that affects future cases.
However, litigation should not be initiated primarily to:
- Keep another organization “off balance”
- Embarrass an opponent
- Increase financial pressure for its own sake
- Generate publicity
- Burden a defendant
The litigation strategy should be tied to legitimate legal claims and remedies.
Why might you decide not to litigate?
Cost
Litigation can involve:
- Attorney's fees
- Filing fees
- Expert witnesses
- Depositions
- Investigation
- Discovery costs
- Staff time
- Appeals
Costs vary widely according to the case.
Some laws allow a prevailing party to recover attorney's fees, but such provisions are claim-specific.
Time
Litigation may take months or years.
Appeals or complicated discovery can extend the process further.
Uncertainty
A strong factual or moral case does not guarantee a favorable legal judgment.
The result may depend on:
- The applicable law
- Admissible evidence
- Procedural requirements
- Jurisdiction
- Standing
- Available remedies
- Judicial interpretation
Discovery and public exposure
Litigation may require parties to exchange relevant documents, electronic records, testimony, and other information through discovery.
Some information may become part of a public court record.
Discuss confidentiality, discovery obligations, preservation requirements, and public-record risks with counsel before filing.
Do not describe litigation as an inevitable contest in which lawyers search for personal “skeletons” or embarrassing private behavior.
Effects on relationships and organizational work
Litigation may increase conflict or make future cooperation more difficult.
It may also consume staff time that would otherwise support:
- Programs
- Organizing
- Research
- Legislative advocacy
- Community engagement
Consider those costs without allowing the desire to preserve relationships to prevent necessary action against serious harm.
Precedent
An important case may create precedent that affects similar disputes.
A loss can also produce an unfavorable legal ruling.
Discuss the broader legal implications with counsel when precedent is an important part of the strategy.
How do you prepare for possible legal action?
Seek legal advice early
Look for an attorney with relevant experience in the subject matter and legal process involved.
Possible sources include:
- State or local bar referral services
- Legal-aid organizations
- Public-interest law organizations
- Law-school clinics
- Attorneys referred by trusted organizations or professionals
- Lawyers with experience in similar cases
Interview potential counsel when practical.
Ask about:
- Relevant experience
- Potential claims
- Likely defenses
- Deadlines
- Possible remedies
- Litigation risks
- Fees and costs
- Communication expectations
- Settlement authority
Consider fee arrangements
Depending on the claim and lawyer, representation may involve:
- Hourly fees
- Flat fees for particular services
- Contingency fees where permitted
- Pro bono representation
- Legal-aid representation
- Limited-scope representation where permitted
Understand the fee agreement before representation begins.
Identify deadlines immediately
Legal claims often have statutes of limitation or other filing deadlines.
Administrative complaints may have separate deadlines that affect later litigation.
Do not delay legal consultation while completing every other advocacy strategy.
Preserve evidence
Relevant evidence may include:
- Emails
- Text messages
- Photographs
- Videos
- Contracts
- Policies
- Public records
- Financial records
- Witness information
- Electronic files and metadata
Once litigation is reasonably anticipated, legal duties concerning preservation of relevant information may apply.
Obtain counsel's guidance before deleting, altering, or reorganizing potentially relevant records.
Establish what happened
Create an accurate chronology.
Distinguish:
- What you personally observed
- What documents establish
- What witnesses reported
- What you infer
- What remains uncertain
Do not exaggerate evidence because you believe doing so will strengthen the case.
Determine what remedy you want
Ask what successful legal action should accomplish.
The answer might include:
- Stop ongoing conduct
- Prevent imminent harm
- Restore a benefit or service
- Compensate people who were harmed
- Change a discriminatory practice
- Require compliance with a contract or statute
- Obtain a declaration of legal rights
- Establish monitoring or corrective requirements
Standing
A person or organization cannot necessarily sue simply because it believes unlawful or harmful conduct occurred.
Standing rules determine whether a particular plaintiff is legally entitled to bring a particular claim.
In federal court, standing generally requires a plaintiff to establish:
- A concrete and particularized actual or imminent injury
- A sufficient connection between that injury and the defendant's challenged conduct
- A likelihood that the requested judicial relief would redress the injury
Organizational and representational standing raise additional questions.
State standing rules may differ.
Consult counsel rather than assuming that only the person who directly purchased a product or personally experienced the conduct can ever have standing.
Class actions
A class action allows representative plaintiffs to pursue claims on behalf of a larger group when the applicable legal requirements are satisfied.
It is not simply a strategic choice available whenever many people have experienced similar harm.
In federal court, class certification is governed by Rule 23 of the Federal Rules of Civil Procedure.
Among other requirements, the court considers issues involving:
- Numerosity
- Common questions of law or fact
- Typicality of the representatives' claims
- Adequacy of representation
- The applicable type of class action
State class-action rules may differ.
Do not pursue a class action primarily because it will:
- Attract more publicity
- Impose a larger financial burden on the defendant
- Increase political pressure
The question is whether class treatment is legally available and appropriate for the claims and people involved.
Determine where the case can legally be filed
Choosing a court can involve complex questions of:
- Federal or state jurisdiction
- Personal jurisdiction
- Venue
- Removal
- Choice of law
- Available remedies
- Appellate review
Your lawyer can determine what lawful choices exist and what consequences follow from each.
Avoid framing the decision as simply searching for the most politically sympathetic court.
Understand the other party's position
Work with counsel to identify:
- Likely legal defenses
- Competing factual interpretations
- Evidence that may weaken your claim
- Procedural arguments
- Alternative explanations
- Settlement interests
Do not investigate opposing parties unlawfully or encourage harassment, deception, unauthorized access, or other misconduct.
Tell your lawyer relevant unfavorable information
Your lawyer needs accurate information, including facts that may complicate your case.
Do not hide documents or relevant information because you believe they are embarrassing or harmful.
Your attorney can help determine:
- Whether the information is legally relevant
- Whether it may be discoverable
- How it affects litigation strategy
- Whether it changes the strength of the case
Consider settlement and alternative dispute resolution
Filing a lawsuit does not necessarily mean that every issue must be decided at trial.
Parties may continue negotiating or use mediation and other dispute-resolution processes while litigation is pending.
When evaluating settlement, consider:
- The legal strength of the claims and defenses
- The requested remedies
- Risk and uncertainty
- Time
- Cost
- Enforceability
- Effects on people directly involved
- Whether nonmonetary changes are important
- Whether confidentiality terms are appropriate
The decision whether to accept a settlement ultimately belongs to the client, informed by legal advice.
Plan for the effect on your organization
Litigation may become a substantial organizational responsibility.
Decide:
- Who will communicate with counsel
- Who has authority to make litigation and settlement decisions
- How records will be preserved
- How staff time will be managed
- How expenses will be monitored
- How confidential information will be protected
- How public communications will be handled
Communicate publicly with care
A pending lawsuit may receive public attention.
Coordinate important public statements with counsel when appropriate.
Distinguish:
- Allegations
- Evidence
- Court findings
- Settlement terms
- Your organization's policy position
Do not describe allegations as proven facts before they have been established.
Evaluate the strategy throughout the case
Litigation strategy can change as evidence, law, resources, and circumstances change.
Periodically ask:
- Does the lawsuit still advance the intended legal goal?
- Has new evidence changed the case?
- Has another remedy become available?
- Is settlement now appropriate?
- Are people directly affected still being represented appropriately?
- Are the costs proportionate to the likely benefits?
- What happens if we win?
- What happens if we lose?
In Summary
Litigation can be an important tool for protecting rights, stopping harmful conduct, obtaining compensation, clarifying legal obligations, and producing systemic change.
It can also be expensive, time-consuming, uncertain, and demanding.
Do not assume that litigation must always be the last possible step.
Filing deadlines, imminent harm, evidence preservation, or the need for emergency relief may require early legal consultation or court action.
At the same time, consider negotiation, mediation, administrative remedies, regulatory enforcement, and other alternatives when they can protect the relevant interests effectively.
Understand the difference between civil litigation and criminal prosecution.
Private parties can bring civil claims when the law permits, while criminal charges generally are brought by government prosecutors.
Identify the remedies you need rather than treating litigation primarily as a way to punish, embarrass, burden, or politically pressure another party.
Obtain qualified legal advice about deadlines, standing, jurisdiction, venue, evidence, remedies, and procedural requirements.
Preserve relevant evidence and give your lawyer an accurate account of both favorable and unfavorable facts.
A class action is available only when the applicable certification requirements are satisfied; it is not simply a larger or more powerful version of an ordinary lawsuit.
Understand that state and federal court structures and procedures differ.
Evaluate settlement and alternative dispute resolution throughout the process rather than assuming that filing requires taking every issue to trial.
Finally, treat litigation as a legal process for obtaining authorized remedies – not as an advocacy tactic designed primarily to keep opponents off balance or increase pressure.
When a viable legal claim, appropriate plaintiff, suitable remedy, and sound strategy come together, legal action can be an important part of protecting people, communities, and the public interest.