Section 16. Initiating Legal Action

For a long time, the Petersburg Fair Housing Coalition (PFHC) had been convinced that local realtors were "redlining" - practicing racial discrimination in housing sales by refusing to sell houses in certain neighborhoods to minorities. The West Side was virtually all white, for instance, and there just never seemed to be any houses available there when minority buyers came looking, no matter how good their credit or how much they were willing to spend.

Two rules about legal action that are important enough to draw your attention to:

 

Rule Number 1: If you can avoid legal action, do! As we repeatedly state in the Community Tool Box - in the previous section, for example - going to court is a last resort, to be used only when nothing else works. It is almost always expensive, time-consuming, and risky. Because it is an adversary process, it can result in lasting anger and bad feeling that can be destructive to your work in the community. Use it only when you have exhausted your other options, or as a tactic to allow you to exercise one of those options (e.g., persuading a judge to appoint a fact-finder or arbitrator.)

 

Rule Number 2: Don't try this on your own, boys and girls! Don't even think about entering into a lawsuit without an attorney. You can bet the other side will have (at least) one.

 

Lawyers spend three years in law school just learning to understand the basic concepts of law; then they spend many more years learning how to use those concepts in practical situations, and how to find their way through the jungle of legal conventions, court procedures, filings, and negotiation with other attorneys. Unless you are an expert on the legal issues in your own right and understand both the law and the legal process completely, you have almost no chance.

 

Find an attorney before you do anything about filing a lawsuit. Lawsuits for Dummies may help you in Small Claims Court, where most people argue their own cases, but in a high-stakes legal action, it will only remind you why they used that title for the book.

What is legal action?

Some definitions

 

The two parties to a lawsuit are the plaintiff - the party that initiates the suit (the accuser) - and the defendant - the party against whom the suit is brought (the accused).

• A settlement in a civil suit is an agreement worked out between the parties before the suit is decided in a trial. In most cases, a settlement involves a payment by one party to the other. It may include other elements as well or instead - an agreement not to disclose the amount of the payment, for instance, or a promise to continue or cease certain actions.
• The prosecutor is the government lawyer who brings criminal charges and represents the government in a criminal trial. The term refers both to an actual person - a District Attorney or State's Attorney - and to her office, which comprises a staff of lawyers, any of whom might actually try the case in court.

 

An indictment (in-dite-ment) is the formal accusation that the state makes when it actually charges someone with committing a crime. An indictment doesn't mean that the defendant is guilty - only that there's enough question about the matter to bring him to trial.

Types of legal action

• Criminal action. The two parties to a criminal action are the defendant and the government. A crime is a violation of the laws of government, whether federal, state, or local. There are two levels of crime: felony - serious crime, punishable by a prison term and/or large fine - and misdemeanor - less serious, usually punishable by small fine, community service, or other jail alternative.

• Civil action. Civil actions are brought by private entities - individuals, corporations, nonprofit organizations, institutions, families, etc. They go to court because they believe that the other party has injured them, or is about to injure them, in some way, and should compensate them for or prevent the injury. Some typical reasons for civil lawsuits:
  • To settle disputes or disagreements (usually over money or property)
  • To recover property or money that one party believes to have been unjustly or illegally taken or claimed from it by the other party
  • To punish the other party for violating a contract or other agreement (or to force the other party to honor the agreement)
  • To punish the other party for reneging on a promise (or to force the other party to fulfill the promise)
  • To regain money or property obtained by the other party under false pretenses
  • To collect damages from the other party for knowingly exposing the first party to harm

By the same token, you can sometimes use a civil suit to recover money damages in what looks more like a criminal case. Although O.J. Simpson was acquitted of murder, the parents of the victims in the case sued him in civil court for wrongful death and won a multi-million dollar judgment. The Southern Poverty Law Center,  has used civil suits to bankrupt groups that commit violent hate crimes, including several chapters of the Ku Klux Klan. (See Example for a longer description of how SPLC uses civil law to bring violent racists and hate criminals to justice.)

The court system

• Specific-jurisdiction courts, which only handle cases of a particular type. At the federal level, these include bankruptcy court, and courts that handle customs cases. At the state level, specific areas might encompass traffic, housing, or probate (wills and estates, divorce, child custody, etc.) Each state may have different specific-jurisdiction courts.
• General-jurisdiction courts, which hear a variety of criminal and civil cases.
• Courts of appeals, which review judge's decisions when there are questions of procedure or adherence to the federal or state constitution.
• A supreme court, which is the court of last resort, and the final appeal on constitutional questions.

Possible outcomes of legal action

• Money damages. Payment may be to your organization, but is more likely to be to someone else, either for specific outlay or injury (payback to consumers who bought a defective product; medical expenses for people who were made ill by the other party's actions), or as compensation for pain, suffering, trouble, etc.
• Other types of payment or actions. You may want a developer to keep a particular area open as green space, or for a corporation to change its sales practices. You may want an organization to apologize for its actions, or a government agency to reveal information that should be public. You may want almost any entity to change some of its policies. The possibilities here are many.
• njunction. You may be able to get a temporary injunction to stop something from happening, or to make sure something keeps happening, until the case is decided (or for a shorter period). The result of your winning the case - or of a settlement - might be a permanent injunction (perhaps accompanied by money damages), if that results in a reasonable resolution of the issue.

After money damages, most common goal of a civil suit is probably an injunction, a judge's order that one or both of the parties must do, continue doing, stop doing, or not start doing something. A permanent injunction may come as the judgment in a suit, and specify what action may or may not take place for the foreseeable future. A preliminary or temporary injunction may be issued to guard against harm while the case, or some phase of it, is decided, but is not meant to hold indefinitely.

 

In a situation where a group sues a developer because her project may endanger an important community source of drinking water, for instance, a judge may order the developer to stop work until the truth of the charge can be determined. This temporary injunction will stand until it is either determined that there is no threat and the work can continue (in which case the injunction is lifted), or that the threat is real (in which case the injunction might be made permanent).

• Mediation or arbitration. A judge can order a mediator, fact-finder, or arbitrator to help resolve a case. A mediator works with both parties to help them come up with a mutually acceptable agreement or resolution to their dispute. A fact-finder tries to establish the truth of the claims in the case, and make recommendations (usually non-binding) to the judge about whether there is reason to go to trial. An arbitrator generally considers both sides of the case, and then comes up with a binding resolution.
• Punishment of the other party for causing harm to others and/or to the public good for the sake of his own profit or self-interest. In some instances, the other party's disregard of the welfare of others may have been so blatant and callous that it seems worthwhile to sue simply to restore the social balance. This situation may call for a criminal complaint, if there are grounds for one.

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

• The other party refuses to deal with you at all. He won't answer your phone calls, talk with you about the issue, or respond to public appeals or public embarrassment.
• You've tried negotiation and/or mediation, and found that the other party wouldn't deal with you in good faith. For whatever reason, the other party is dishonest, fails to honor commitments, refuses to explain what she wants, etc., and sabotages any chance of reaching a mutually acceptable agreement.
• You want a judge to order mediation, fact-finding, or arbitration to resolve an issue. There may in fact be a solution other than going to court, but if the other party refuses to consider it, it's unavailable. For a court to order such a solution, however, you have to file suit first. Until you do, the judge has no jurisdiction in the matter.
• The other party has made it clear that legal action is the only course it will accept. He may have a history of not changing his behavior until forced to do so by a court, he may see the issue as a matter of principle, or he may simply want to cause you as much trouble as possible. Whatever the reason, he leaves you no choice.

Beware of accepting such a challenge simply because it is a challenge. Consider carefully whether the matter is important enough to bear the difficulty of a court case.

You may choose to use a similar tactic, threatening to take legal action if the other party doesn't agree to some other course of action - negotiation, or changing his behavior, for instance. That then potentially puts you in the same situation, however: you've issued a challenge, and, if it's accepted, you may find it difficult to back down, even if that's the best course to take.

• You know or believe that the other party is about to initiate legal action against you. One way to throw her plans off balance is to get there first, assuming you have a legitimate case.
• The other party is doing, or about to do, something so harmful that you have to act quickly and pointedly. If public health or the public interest - or the health or interest of a particular group of people - is threatened, and the other party won't consider alternatives or discuss the matter, a lawsuit may be your only recourse. The goal here might not be to sue, but to obtain an injunction, which will give you breathing room to continue to push for some other solution. If the other party remains immovable, the case can go forward, and the injunction will protect the public while that's happening.

A similar, but not identical, situation is one in which the other party is about to take an irrevocable action - one whose consequences are permanent. The demolition of a historic building, for instance, or the logging of old-growth forest are actions that can't be reversed once they're taken. The building is gone forever; the forest may grow again, but it will take hundreds of years to reach the state it's in now, and then only if it suffers no human interference. Again, a temporary injunction can stop the action until you can negotiate an alternative, or convince a court that the public interest demands that the action not be taken at all.

• 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. You may be using everything you can think of to keep things from getting worse while you work legislatively to make them better.
• If you win, you may set a legal precedent that helps your cause over the long term. In some legal cases, new interpretations of the law can have profound social and political consequences. Remember that it was a court case that established that school segregation was unconstitutional. If your case has implications for the way your issue is handled legally, you may be able to advance your cause in a fundamental way.

A legal precedent is a court decision that is later used as a benchmark to guide future decisions.

Why not to initiate legal action

• Expense. As we've said many times, legal action is expensive. If you're up against an opponent with considerable resources - a large corporation or institution, the government, a wealthy individual - the cost of going to court can be incredible.

There are ways some of these costs can be reduced. You may, for instance, be able to find an attorney who'll work for you pro bono - i.e., free - as a public service or because she believes in what you're doing. (This expression is short for pro bono publico, and means "for the public good" in Latin.) Another possibility in a civil suit is that an attorney will work for a percentage of the final settlement, called a contingency fee. If you lose, the lawyer gets nothing, providing him with an incentive to do everything he can to win the case.

 

Another scenario is that you find an "angel" to finance the case. Angels in this sense are individuals or organizations with deep pockets who are concerned enough about your issue that they're willing to pay for a lawsuit to see it resolved satisfactorily. There are some organizations that do this sort of thing regularly, or that provide attorneys to help others filing suit in the areas they're interested in. The American Civil Liberties Union is perhaps the best known of these. Yet another option is that you may be able to work with a Legal Services office or other low-cost alternative to a private attorney.

• Time. Lawsuits, especially if contested by high-powered lawyers on one or both sides, can drag on for decades.

A friend of the author's spent a college year off working on what was then a 15-year-old water rights case involving a Native American pueblo in New Mexico. Several years later, after graduating from law school, he went to work for the U.S. Justice Department in Washington...where he worked for several years on the same case. His next job was in the U.S. Attorney's office in New Mexico - where he continued working on the same case for several years more. When the case was finally resolved, my friend - who was 20 when he first came in contact with it - was well into his 40's. The water rights case had lasted for nearly 40 years.

• Unpleasantness. In a high-stakes lawsuit - one involving large sums of money and/or the reputation and public image of either party - attorneys will often do whatever they can to discredit the other side. They may employ investigators to find any violations of law, unethical or unsavory private behavior, financial dealings, unguarded remarks, etc., that could make the other party (you, in this case) look bad or foolish or dishonest. If you - or anyone else in your organization - have any skeletons in your closet, you may find them exposed to the public eye.

• Destruction of current or potential relationships. A lawsuit can build barriers not only between you and the other party, but between you and the whole class of entities he belongs to. If you sue a corporation, other corporations may not want to deal with you, let alone support you. If you manage to settle a dispute without a lot of publicity or going to law, however, they may see you as reasonable.

Realistically, this may work the other way as well. If you sue a corporation, other corporations may see you as someone they have to deal with, because you'll play hardball if they don't.

• The effort you put into the lawsuit may take away from your other work as an advocate. In some instances, a lawsuit could - and should - be the real focus of your advocacy work (see the example about Morris Dees and the Southern Poverty Law Center). In others, however, it may be only one aspect, and a small one at that, of what you need to accomplish. It could take up a great deal of your time and energy, leaving little for the rest of your work.
• There's no guarantee that, after all the expenditure of money, time, good will, reputation, etc., you'll win. Judges or juries don't always see the situation the same way you do. You could end up pouring years into an action, only to lose. Even if you win, the judgment can be appealed, and you could lose on appeal, after years of expense.
• If you lose, you may set a legal precedent that hurts your cause over the long term. Just as winning an important case can set a positive precedent, losing one - and there's always that chance, no matter how good your case seems - can have the opposite effect.

How do you initiate legal action?

• Find a lawyer. As explained at the beginning of the section, you'll need a lawyer - and not just any lawyer. You need someone (or some law firm) with real expertise in the area of law (consumer, environmental, health, education, etc.) your suit concerns. She also has to be familiar with the court system you'll be using, and skilled in both negotiation and litigation (actually trying a case in court) as well as legal strategy. Finally, she has to be someone you can afford - someone who'll take the case pro bono or on contingency, so you don't bankrupt yourself before you've even started. Here are some places you might look.
  • Your local Bar Association. Bar associations generally keep lists of attorneys that include their experience and areas of expertise.
  • Your own attorney or others you know. The lawyers you're acquainted with may not have the credentials you're looking for, but they'll probably know who does, and can probably tell you who's really good.
  • The Martindale-Hubbell Law Directory, in most libraries and online.
  • News of other, similar cases. Who the attorneys in those cases were and how well they performed is a matter of public record in newspaper archives and, often, on the Internet. (Be aware that not every attorney will be willing - or able - to practice in your state, and that knowing the court system and judges he'll be dealing with is a big advantage for an attorney. It's usually wise to hire someone local, or at least in-state.)
  • Others in your field, other advocates, professional associations, and community word of mouth. Reports from others who've used lawyers in the past can be your best source of referral.
  • You can find a lawyer in the phone book or on the Internet, but you may have to interview several to find the right one. Some Internet sources will give you information about individual attorneys and firms.

• Determine whether you have a case. Once you've found an attorney, you and she have to be sure that you have a strong enough case to make legal action worthwhile. Most attorneys won't take a case (except perhaps for a criminal defense) unless they believe there is at least a reasonable chance of winning. If you're determined to sue, you may have to talk to more than one lawyer before you find one who's willing. If too many turn you down, perhaps you should try to find another way to address the situation besides legal action.

Steps 3, 4, and 5 below are in a logical order, but not the only order possible. All of them will be taken as the result of discussions with your attorney, and not necessarily in the order given. Some may not be choices at all - you may not have the basis for a class action suit, for instance, or you may have no choice about which court system to use. They all address issues you might need to be aware of, however.

• Decide what you want to get out of taking legal action. As an advocate, more often than not your goal will not be something for yourself, but rather either an action or change of action on the part of the other party, and/or payment or other compensation to someone else who was injured by the other party's actions.
• Decide whether you're suing in your own right, on behalf of a single or small number of plaintiffs, or whether you want to institute a class action suit. A class action suit is one that is brought on behalf of a whole class of people. The meaning of "class" here is not socio-economic, but much broader, and refers to any group of people who have something in common which has caused them to be injured - physically, economically, or politically - by the actions or policies of the defendant. Some examples of a class in actual class-action lawsuits:
  • Smokers who died or were made ill by their use of tobacco.
  • Families of victims of the 9/11 World Trade Center attack.
  • California buyers of certain Microsoft software, who won a settlement reimbursing them because Microsoft unfairly used its virtual operating-system monopoly to fix prices and force the purchase of its operating systems.
  • Retired armed forces veterans who've lost their free health benefits, and are suing the government to get them back.
  • Investors who lost money when the Enron Corporation collapsed. They allege Enron engaged in schemes to cover up its actual financial situation and defraud investors.
  • African American farmers who were discriminated against in farm loan programs operated by the US Department of Agriculture.
  • Ukrainians forced by the Nazis to work as slave laborers during World War II filed a class action suit against German companies that benefited from their labor.

An important issue here is standing. A suit can't be filed unless the plaintiff has standing in the matter. That means that she must actually have experienced or been exposed to whatever injury is in question. If, for example, you know about a situation where consumers were knowingly sold defective goods, but you didn't buy any, you may not have standing to bring suit. Only someone who has actually bought the defective goods can act as the plaintiff.

 

Advocates, watchdog groups, and attorneys who want to file class action suits sometimes have to search for someone with standing who's willing to be named as a plaintiff. That can be difficult if potential plaintiffs are afraid of reprisals of some sort (losing jobs, having loans cancelled, being exposed to physical or other threats, the disapproval of their neighbors).

• Decide where and in what court to file suit. You may have choices about what geographical area - what state or county - you can file a case in, as well as a choice as to whether to use the state or federal court system.
  • Geographical area. In general, the case has to be filed where the action it addresses took place. In a situation where actions occurred in a number of places - different instances of industrial pollution by the same company, nationwide sales of a defective or dangerous product - there may be a choice of locations in which to file. You'd probably make that choice based on where you felt you had the best chance both to win the case and to accomplish your goals. One state might have the reputation of being more sympathetic to claims of consumer fraud than another, for instance, or may have tougher environmental laws.
  • Federal vs. state court. If both state and federal laws or regulations pertain to the case, or in some other circumstances, you may have the choice of filing in either state or federal court. Once again, you'd probably try to determine which system might be more sympathetic to your side and/or more likely to help you achieve your goals for the case. Another consideration might be where you could get a quicker trial. Some courts are so busy that you might wait more than a year before the case could even begin, and a trial, if the case got that far, might be several years off.

Still another issue might be that of which appeals court would hear your appeal if you lost the initial case. Some state appeals courts, and some federal Circuits, have reputations of being particularly liberal or particularly conservative, or of being sympathetic to certain issues. If you have a choice, the possibility of an appeal might figure into it.

• Be prepared to counter the other side's arguments. This is another way of saying "Do your research." You're the expert on the issues that the lawsuit is about. You can help your attorney and your case tremendously if you have all the information you need - the history of the case, documents or other tangible evidence, knowledge of the issue (both academic and practical), government regulations, etc.
• Anticipate what the other side may throw at you. As mentioned above, you personally or your organization (or the plaintiffs in your class action suit, if you're not the plaintiff yourself) may be the target of questions meant to discredit you. The other party may dig up information about you or your organization that you'd just as soon not see made public, and there may be nothing you can do about it.

• Decide on when and whether to settle, and on the minimum amount or concession you find acceptable.

If you're involved in a civil suit, it will probably never go to court at all. Most cases involving money damages are settled before the case goes to trial. Most lawyers would prefer not to risk a trial if possible, unless they have an absolutely overwhelming case, and - equally important - one that will touch a typical jury.

 

When large corporations or institutions get sued, they usually try to settle out of court because juries often tend to favor the underdog...and large corporations and institutions are seldom seen as the underdog. The plaintiffs are afraid that a jury will not only decide against them - which can be a public relations disaster, especially if the trial is a high-profile one - but will award enormous damages. If the plaintiff can settle, even for a large sum, he can often avoid the adverse publicity and save money as well. The two parties' lawyers negotiate in these cases. If the settlement offer is reasonable, the plaintiff's lawyer will usually advise the plaintiff to accept, since there's no guarantee that a judge or jury will find in the plaintiff's favor. The lawyer wants to assure a decent amount of money for herself - her contingency fee will be a percentage of the settlement - and a decent amount of both money and satisfaction for the client. A well-negotiated settlement is generally a way to get both.

• Be aware that this suit may be part of your life and that of your organization for as long as it goes on, which may be years and years. There may be stretches of time - months, even years - in which nothing at all happens. The best coping mechanism here is to go through the steps above, and - once you've found a lawyer in whom you have confidence, and done what you can - leave the lawsuit to your attorney. She'll let you know when you're needed.

In Summary

• 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.
• Winning could set a legal precedent that helps your cause over the long term.

• Expense.
• Time.
• Unpleasantness.
• Destruction of 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.
• Losing could set a legal precedent that hurts your cause over the long term.

• Find the right attorney, through a thorough search (and perhaps interview) process.
• Determine whether you have a strong enough case to proceed.
• Decide what result you want from the lawsuit - criminal penalties, money damages, an injunction, arbitration, etc.
• Decide whether a class action suit would be appropriate in this case, and whether it would accomplish your purpose.
• If you have the choice, decide on where, and in what court system, you should file suit.
• Be prepared to counter opposition arguments - do your research.
• Anticipate whatever nastiness the opposition might throw at you.
• Be prepared to live with this suit for years, if necessary.