Although storytelling and human stories may be powerful in advocacy and campaigning, the participants
at the event with CSOs in Brussels warned of the risk of exposing and re-traumatising persons
concerned. Advocates should thus always be guided by the “do no harm principle” which implies that a
risk assessment of the short and long-term effects for the individual and their community is conducted.
3.3 Strategic Litigation
Definition and purpose
During the project, litigation and strategic litigation in particular, were identified as a very important
tool to influence change in the area of procedural rights. There is no commonly agreed definition of
strategic litigation.113 However, in the framework of this project, strategic litigation can be understood
as bringing a certain case to the courtroom to create broader change in society. Thus, strategic
litigation is concerned not only with the specific case but also with the impact of the case on society,
governments, and institutions.114
Principles and strategic use
The strategic litigation expert Helen Duffy urges that lawyers need to start cases with a clear
end in mind. Often lawyers only start to think about the influence of their case when it is closed.
However, the impact of a case can be already controlled with the selection of a case.115 The NGO
Validity (previously known as Mental Disability Advocacy Centre), for example, uses the acronym
SPARR to select its cases. The SPARR selection criteria consists of Strength (Is the case a strong
one?), Potential (Does the case have the potential to help other people?), Added-Value (Is the case
one which can add value through expertise?), Relevance (Is the case relevant to our mission?), and
Resources (Do we have the human and financial resources to litigate the case through domestic courts,
and, if necessary, to a regional or international body?).116 These criteria may assist other NGOs to
determine the goal and impact of the case from the start.117
After the case is selected, it is important that the lawyers become familiar with the socio-political
context of the case (see above, § 2.2). Moreover, research concerning opposing opinions, deeply rooted
prejudice in society, and risks linked to the case are similarly important for a realistic impact assessment.
Challenges and how to overcome them
Strategic litigation may also bear significant reputational, physical, mental, and financial risks. The
client’s interest constitutes the starting point of the case and should not suffer for the greater
cause of the case. Strategic litigation offers an opportunity to tell a relatable and personified story.
This was also highlighted by the participants at the EU workshop with CSOs. However, lawyers
should always be guided by the ‘do no harm principle’ which implies that a risk assessment of the
short and long-term effects for the client and their community is conducted.
There are discussions on whether the client’s interests and the overall impact of the case can be at
odds. However, this tension can be mitigated by involving the client from the beginning, explaining
the overall strategy and impact planning,118 and by giving clients the opportunity to make decisions
concerning the case.119
In the context of legal aid reforms, it is often lawyers themselves that bring cases to courts lamenting the inadequate
113. Duffy, ‘Strategic Human Rights Litigation’ (2018) 3.
114. ibid 235
115. ibid 235.
116. Validity Foundation, ’What Is Strategic Litigation?’ (2011).
117. Duffy, ‘Strategic Human Rights Litigation’ (2018) 235.
118. ibid viii.
119. Power, Power and Batros, ‘Strategic Litigation Toolkit’ (Digital Freedom Fund) 41.
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