Strategic Litigation: Inward and Outward Learning
Dejusticia defines itself as a center for thought and action. Our work model, which we call “amphibious,” has a strong component of research, but also of legal mobilization. Our day-to-day work is driven by the desire to take ideas to the realm of social transformation. This is why litigation is central to our institutional identity. In our fifteen years of existence, through a trial and error mechanism, we have been dedicated to designing our own successful litigation model. However, our daily work does not include exercises for thinking about our own work or on lessons learned along the way.
Faced with this deferred task, the Learning Collaborative (LC) project has allowed us to take the first step to teach and reflect on strategic litigation with the aim of finding new scenarios, other than the courts, that will help us strengthen litigation as a tool that we ourselves can use and is also at the service of peer organizations. Below, I share some of the lessons learned from this process.
First International Workshop on Strategic Litigation
The School for Human Rights Training is a relatively new project in the organization. Through this platform we offer courses, workshops and design thinking labs on a number of human rights issues. Although most of the thematic courses included a component on the generalities of litigation, up to now we had not thought of how we could teach with a stronger emphasis on skills development.
Guatemala City. October 2, 3 and 4, 2019
In 2019, with CEGSS (Centro de Estudios para la Equidad y Gobernanza en los Sistemas de Salud), a member organization of the LC project, we identified this shared need and planned the first international workshop on strategic litigation for indigenous health.
Guatemala City. October 2, 3 and 4, 2019
An intense three-day program in October 2019 that was attended by seventeen human rights activists in Guatemala led to the completion of two important learning objectives. For one, CEGSS had the opportunity to share its experience with the participatory action-research methodologies it develops with indigenous communities. This exchange was enriching as it allowed understanding the techniques they use to involve community members in knowledge creating exercises.
And, in addition, Dejusticia was able to teach litigation-oriented techniques for structuring legal and communication strategies. This gave rise to very interesting dialogues on how to introduce the results of social research in the judicial channel and the best way to disseminate them with the aim of generating public opinion. This was the backdrop for the First Course on Litigation for Social Change that was held in November 2019, in Colombia, for fifty human rights litigants.
Systematization of fifteen years of litigation
Dejusticia is known for being a space where young researchers can develop their academic interests. The high turnover of excellent researcher-employees is a reality that is consistent with current workplace dynamics. This high turnover has also made it difficult to consolidate a strong institutional memory. Which is fundamental in litigation, because different aspects depend on this, including the continuity of lengthy proceedings and the consistency of argumentation on specific issues, among others.
The LC has also allowed us, through an internal learning exercise, to develop tools aimed at strengthening institutional memory. These tools consist of a database that encompasses all of our litigation, a repository of jurisprudential data for the most important cases, and a methodology for conducting socio-legal case studies.
First, the database contains all the litigation that has been launched from 2005 to 2019. With the aid of 28 variables, one can observe a large part of the organization’s litigation history. This quantitative tool allows identifying successes and failures in the proceedings, the impact arguments have on court decisions, the trends of the volume of cases handled per year (For example: See Figure 1), the most litigated issues, among others. Apart from the quantitative perspective, the tool is also valuable for making more informed decisions about which litigation to pursue and how to pursue it.
Second, the jurisprudence datasheets include the technical description of the decision and the arguments made in the proceedings. In total, there are seventy documents that allow identifying the legal position and the legal arguments on specific issues. Therefore, it is possible to analyze the way in which the organization has contributed to advancing the recognition and protection of specific rights, from a legal theoretical perspective.
And third, the socio-legal case study methodology includes steps related to the analysis of the legal and political situation that gave rise to the litigation, the process of building the legal strategy, the identification of communication techniques, among others. This methodology was initially applied and tested in five cases, which, in turn, are an important input for the first publication on strategic litigation that we plan to have in Dejusticia this year.
Expanding litigation experience
These two learning experiences marked an important beginning in the expansion of litigation activities. In the journey to defend human rights in Colombia and the region, a large part of the litigation efforts has focused on direct interactions with judges. However, thanks to the LC, we were able to expand the boundaries of our action and strengthen the skills to teach and reflect about our own work. In so doing, we also opened different platforms to facilitate dialogue on strategic human rights litigation. In this way, we hope to contribute to the development of this tool that has been so useful for the effective defense of rights and make place at the service of the universe of human rights organizations.