Turning our Clients Into Heroes
07 September 2015
As a lawyer I am used to situations when people are eager to litigate and fight for their rights. Before I started working for the ERRC, the normal situation for me was to meet clients seeking legal help (advice or representation). Even though I had worked with human rights cases before, I had never encountered a situation where the lawyer struggled to set up a case and convince clients to go ahead with the litigation. That simply isn’t what lawyering is about, I thought. It turns out I was wrong. Lawyering at the ERRC is different.
One of the first situations where I experienced an unwillingness to litigate happened in Ukraine in 2013. One of the ERRC’s priorities is segregated education. Naturally, when I started working in Ukraine on behalf of the ERRC this was one of the issues I looked at. As in any other country in Europe, there are a number of segregated schools in Ukraine, in particular in Odesa, where we already had paralegal project running. Unlike may other countries in Europe, actio popularis litigation (where NGOs are plaintiffs in cases meant to vindicate some public-interest point, such as discrimination) is not possible in Ukraine.
In order to start litigation we needed actual clients: parents who felt that their children were being discriminated against by receiving an inferior education in segregated schools. After interviews with parents, teachers, children, and NGOs working in the field of education in this particular location, we identified several parents who were ready to be plaintiffs in lawsuits against the municipality and the schools. Everything was ready; we just needed our clients to sign powers of attorney. Then I got a call from the ERRC monitor and the paralegals who were supporting us on the ground. I was told that parents refused to go ahead with the cases and asked. I talked to the parents myself and they confirmed. I asked why, but actually I knew the answers before they told me: fear of intimidation and bullying by white children and even teachers; feeling safer on their own; free food and books; close proximity to their homes; pressure from community leaders. A few months later I had a situation in Slovakia when our clients pulled out one day before the first hearing.
The ERRC is not a law firm acting for clients; we serve a movement, whose cause is Roma emancipation. So when clients pull out, we cannot shrug our shoulders, the way an ordinary lawyer or a legal-aid clinic might, and sigh about “not having instructions”. The reasons I could have guessed are not, in our movement, reasons at all, but symptoms of the oppression of Roma.
And as movement lawyers, we have started changing the way the ERRC litigates and how we define strategic litigation. Being strategic means finding the right kinds of clients for the right kinds of cases (what my colleague Adam calls “left side” and “right side” litigants on the “strategic litigation plane”). Sometimes our litigation theories of change call for clients on the left side, who are motivated to improve their individual situation through litigation; but such cases are tricky, and often the better approach is to build up cases from the very beginning, with litigants who are involved in the case because they see the bigger picture and want to see the case brought as designed. This is easy to do when NGOs are the litigants; in Ukraine and some other places (including the Czech Republic), where actio popularis litigation is not possible, it means finding and nurturing activist-litigants. As a movement lawyer, this is my biggest challenge now. The ERRC also has clients care system in place which in practice means that clients are never left on their own and are always supported and backed by the ERRC in various ways since the very inception of litigation and up until the very last stages, including implementation of the judgment. But we need to improve those systems so that they are not just about fulfilling a lawyer’s obligations to a client. I don’t just want our clients to win; they should be the next great heroes of the Roma rights movement, like the great heroes of US civil rights cases.
There is a victimisation catch-22 here: as long as the reasons which make litigation necessary in the first place (discrimination and intimidation of Roma, harassment, fear of being deprived of support, white flight, deep poverty, insecurity and injustice) it will be hard to find our ideal clients. They do not teach you in law school or normal law practice how to turn clients into heroes, but that is what we have to start doing.
