This document summarizes a presentation about evaluating strategic litigation advocacy. It begins by explaining what strategic litigation is and how it differs from other types of legal advocacy due to its complexity, extended timeframes, and dynamic nature. It then presents a framework for evaluating strategic litigation with goals of articulating evaluation questions and identifying preliminary measures. The framework focuses on assessing overall success, strategic integration with other advocacy work, readiness, outcomes of litigation, challenges faced, and implementation strategies. It concludes by sharing lessons learned from a case study examining advocacy to repeal the death penalty through the US Supreme Court.

1. 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

2. 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

3. UNDERSTANDING ADVOCACY
THROUGH THE COURTS

4. Lawyer or Evaluator?
Credit: Chris Lysy
Aea365 June 13th

5. 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

6. 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

7. Legal advocacy: Same or Different?
1) Complexity & attribution
2) Extended timeframe
3) Changing milestones
4) Shifting context and strategies
5) Tight resources

8. 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

9. Other Considerations
• Adversarial
• Costly
• Hard to walk away
• Strategy of last
resort
• Integration key
• Not an end in and
of itself

10. 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

11. 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.

12. A STRATEGIC FRAMEWORK FOR
EVALUATING ADVOCACY
THROUGH THE COURTS

13. Framework Goals
1. Articulate evaluation
questions
2. Share preliminary
measures

14. The Framework
• Overall success
• Strategic integration
• Readiness
• Outcomes
• Challenges
• Implementation

15. • Winning the case?
• Setting good precedent?
• Creating new policies?
• Creating visibility of the
issue?
• Empowering the
community?
How to measure
overall success?

16. 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?

17. 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

18. 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?

19. 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

20. • Implementation through:
• Additional litigation
• Monitoring
• Legislative advocacy
• Settlement
• Defense of erosion
• Appeals
• Managing backlash
What is the
quality of the
implementation
strategy?

21. SHARING LESSONS LEARNED BY
ADVOCATES AND EVALUATORS

22. 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.

23. 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.

24. 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.)

25. 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.

26. 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.

27. Want More?
• http://www.buzzfeed.com/chrisgeidner/the-
most-ambitious-effort-yet-to-abolish-the-
death-penalty-i#.mfewyERZ1

28. CONTACT US
Jared Raynor
jraynor@tccgrp.com
@jraynor1
Kay Sherwood
Kay.sherwood@verizon.net
Deepti Sood
dsood@tccgrp.com
@DSood26
Tanya Beer
tbeer@
evaluationinnovation.org
@TCCGRP
#eval15