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Federal Practice Manual for Legal Aid Attorneys: 1.2.10 Direct Action and Community Development Work

Direct action can refer to two different approaches to obtaining your desired solution. First, you can simply fix or coordinate the fixing of the problem. For instance, the defendant in a lawsuit initiated by her town to declare her house an imminent health hazard and to raze it contacted a legal services lawyer. Legally, the attorney could have raised procedural defenses or counterclaims relating to the client’s disability. Instead, the lawyer contacted a local community group that, working with a local church, sent a team of people and a dumpster to the house.

Federal Practice Manual for Legal Aid Attorneys: 1.2.11 Amicus Participation

One alternative to the substantial investment of time and resources required for the preparation, initiation, and prosecution of direct litigation on behalf of your clients is to participate, selectively and strategically, in pending lawsuits involving other parties that have raised the same or similar issues.

Federal Practice Manual for Legal Aid Attorneys: 1.2.12 The Amicus Curiae

Through the vehicle of the amicus curiae—the “friend of the court”—legal aid attorneys can vigorously represent their clients’ interests, often in the context of precedent-setting decisions, without formally initiating or intervening in the underlying litigation. Amicus participation thus affords attorneys the opportunity to influence directly and immediately the outcome of cases that may dramatically affect their clients’ lives while avoiding most of the resource constraints imposed by conventional litigation.

Federal Practice Manual for Legal Aid Attorneys: 1.2.14 Contents of the Brief

Under the federal appellate rules, such briefs may be filed “only by leave of court or if the brief states that all parties have consented to its filing.”38 Generally an amicus who is unable to obtain the requisite consent will file a motion for leave to file its brief and at the same time file the brief itself—a procedure prescribed by Rule 29.39 The motion must identify the “movant’s interest” and the “reason why an amicus brief is desirable,” and the brief must be filed “no later than 7 days afte

Federal Practice Manual for Legal Aid Attorneys: 1.2.16 Reply Briefs and Oral Argument

The Supreme Court prohibits the filing of amicus reply briefs.58 Other federal courts have adopted the same rule.59 However, an amicus that has been permitted to file a brief in connection with a petition for certiorari or other discretionary review (e.g., a rehearing or rehearing en banc in the court of appeals) certainly may seek to participate in the briefing on the merits if review is granted.60

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.

Collection Actions: 5.2.1 Collector Error in Determining Amount Due

Though computer records create the illusion of accuracy with respect to the amount due sought by a collector, what actually happens with credit records as they are passed from creditor to debt buyer to collection attorney paints a very different picture. For example, an Office of the Comptroller of the Currency investigation found startling errors in the amount that JP Morgan Chase sued on consumer credit card debt.39