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Federal Practice Manual for Legal Aid Attorneys: 1.2.17 Advantages and Disadvantages of Amicus Participation

Many traditional public interest law organizations have long favored amicus participation as a resource-efficient way to concentrate their advocacy upon cases which appear poised for a precedent-setting decision in order to obtain the most direct and immediate impact for their constituents. Direct litigation may consume years of time and expenses with no guarantees that the outcome, even if favorable, will establish any lasting precedent.

Federal Practice Manual for Legal Aid Attorneys: 1.3.0 Introduction

[SECTION 1.3 IS UNDERGOING REVISION]

Section 1.3 updated 2013 by Jeffrey S. Gutman

As your office considers the possibility of litigation, it will need to consider who the client is, the client’s goals, the capacities of the organization, available resources and time considerations, as well as who can provide the relief that the client seeks.

Federal Practice Manual for Legal Aid Attorneys: 1.3.2 What Are Your Client’s Goals?

The answer to this question will shape the course of your advocacy strategy as certain approaches will be better than others in achieving clearly identified objectives. In many cases, a client will need to define these objectives in terms of solving the immediate or individual problem, or in terms of solving deeper systemic problems that have manifested themselves in what has happened to the particular client. Effective interviewing and counseling is necessary in order to define problems and objectives.

Federal Practice Manual for Legal Aid Attorneys: 1.3.3 What Are the Capacities and Limitations of Your Firm or Organization?

The extent of any potential advocacy effort is always circumscribed by the capacities and limitations of the firm or agency. The principal limitations are resources, which consist of staff time and funds available for advocacy-related expenses. Legal aid firms typically are engaged in a constant and never-ending institutional struggle to evaluate and satisfy the advocacy needs of their clients with extremely scarce organizational resources.

Federal Practice Manual for Legal Aid Attorneys: 1.3.4 What Resources Are Available?

As part of the initial planning stages of the advocacy, prepare a budget that covers both the time and staff resources and financial resources necessary to conclude the project. If the plan is to conduct litigation, it should include an estimate of the time and staff necessary to draft and research motions, interview witnesses, review documents, conduct discovery and litigate at trial. The financial estimate should include fees and costs, such as for depositions, transcripts, experts and witnesses.

Federal Practice Manual for Legal Aid Attorneys: 1.3.5 Who Can Provide the Relief Sought?

Once you and your client are reasonably clear about the client’s goals, you must decide who is able to provide the relief sought or is able to direct that it be provided. Consideration of this question deserves some creativity. The relief may come directly from a private individual or local agency, but there may be one or more public agencies—federal, state, or local—with the authority to order that the relief be provided or with the power to provide it directly. Thus, a local housing authority may be subject to direction from the U.S.

Federal Practice Manual for Legal Aid Attorneys: 1.3.6 Time Considerations

Your advocacy strategy will be significantly influenced by the timing needs of your client and the estimated time needed to accomplish the client’s goals through varying strategies. A reality of legal services practice is that the need for our services is greater than what we can provide. You must estimate the time you are able to spend on the matter. You must also have a clear sense as to the timetable by which your client needs or wishes relief.

Federal Practice Manual for Legal Aid Attorneys: 1.4.2 Factual Investigation

Sound legal practice, as well as Rule 11, require counsel to engage in a reasonable factual investigation prior to filing a lawsuit. The first source of information about the case usually will be the client. There are many texts devoted to the art and practice of client interviewing.94 The scope of this MANUAL does not permit a review of interviewing techniques. Suffice it to say that effective client interviewing is essential to the success of litigation.

Federal Practice Manual for Legal Aid Attorneys: 1.4.3 Your Client

Before filing the complaint, you will likely interview or review the facts with the client for several purposes and on several occasions. At intake, your focus will be on obtaining an overview of the facts and legal issues to see whether the problem meets your program’s priorities, to ascertain the immediacy of the client’s need, and to determine if the client meets income and other program requirements.

Federal Practice Manual for Legal Aid Attorneys: 1.4.7 Pre-filing Negotiation and Offers of Settlement

Most cases are resolved through settlement rather than through trial or judicial determination. Failing to consider and prepare for settlement possibilities early in your planning is foolish. You must prepare your client for the settlement process during one of your initial meetings. The client must understand the ultimate goal of the litigation, the risks in achieving it, and that there may be very good reasons to be pleased with less than what you are seeking in the complaint. You should explain to the client that what constitutes an acceptable settlement will change over time.

Federal Practice Manual for Legal Aid Attorneys: 3.0 Introduction

This Chapter discusses several constitutionally or prudentially imposed limitations on the pursuit of federal litigation. First, the Chapter surveys the doctrine of standing and discusses constitutional and prudential requirements as well as associational and third-party standing. Second, the Chapter covers ripeness and mootness, including mootness in the context of class action litigation.

Federal Practice Manual for Legal Aid Attorneys: 3.1.3 The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests.

Federal Practice Manual for Legal Aid Attorneys: 3.1.4 Injury in Fact

The Supreme Court has held that, to satisfy the injury in fact requirement, a party seeking to invoke the jurisdiction of a federal court must show three things: (1) “an invasion of a legally protected interest,” (2) that is “concrete and particularized,” and that is (3) “actual or imminent, not conjectural or hypothetical.”638 The following subsections discuss several types of injuries considered by the Supreme Court in determining whether there is a legally protected interest.

Mortgage Lending: § 206.101 Sale, assignment and pledge of insured mortgages.

(a) Sale of interests in insured mortgages. No mortgagee may sell or otherwise dispose of any mortgage insured under this part, or group of mortgages insured under this part, or any partial interest in such mortgage or mortgages by means of any agreement, arrangement or device except pursuant to this subpart.

Mortgage Lending: § 206.102 Insurance Funds.

Loans endorsed for insurance under this part, prior to October 1, 2008, shall be obligations of the General Insurance Fund. Loans endorsed for insurance under this part, on or after October 1, 2008, shall be obligations of the MMIF.

Mortgage Lending: § 206.103 Payment of MIP.

(a) The payment of any MIP due under this subpart shall be made to the Commissioner by the mortgagee in cash until an event described in paragraph (b) or (c) of this section occurs.

(b) Payment of the mortgage. The MIP shall no longer be remitted if the mortgage is paid in full.

(c) Acquisition of title.

Mortgage Lending: § 206.111 Due date of MIP.

(a) Initial MIP. The mortgagee shall pay the initial MIP to the Commissioner within fifteen days of closing and as a condition to the endorsement of the mortgage for insurance.

(b) Monthly MIP. Each monthly MIP shall be due to the Commissioner on the first business day of each month except the month in which the mortgage is closed.

Mortgage Lending: § 206.113 Late charge and interest.

(a) Late charge. Initial MIP remitted to the Commissioner more than 5 days after the payment date in § 206.111(a) and monthly MIP remitted to the Commissioner more than 5 days after the payment date in § 206.111(b) shall include a late charge of four percent of the amount owed.

Mortgage Lending: § 206.115 Insurance of mortgage.

(a) Mortgages with firm commitments. For applications for insurance involving mortgages not eligible to be originated under the Direct Endorsement program under § 203.5 (any reference to § 203.255 in § 203.5 shall mean § 206.115 for purposes of this section), the Commissioner will endorse the mortgage for insurance by issuing a Mortgage Insurance Certificate.