3(D). After the judgment

A positive judgment in a strategic case may result in immediate improvement of the situation both for the client and for others in similar situations. In most cases, however, governments are slow to implement changes. Following judgment, there will often be other types of work necessary to effectuate the objectives of the litigation. Policy and law reform advocacy are almost always necessary. A media strategy should be developed, as should other awareness-raising activities. The capacity of people who can use the judgment may need to be strengthened, whether through formal training courses, evening seminars, case summaries or internet-based resources.

Follow-up litigation can play a central role in implementing or executing the “final” judgment. This can secure remedies for others who now have a precedent, or a basis from which others can claim their rights and demand the authorities take action in conformity with the judgment. For example, an international court may find that the institutionalisation of the client is a breach of her rights and that the State is obliged to take measures to ensure her right to liberty and to home, family and private life. In these cases States often take a minimalist approach by simply discharging the client from the institution, but they fail to enact law reform or make budgetary or service adjustments which would be needed to properly implement the judgment. Follow-up domestic litigation can focus on exposing the practicalities of how the State should implement the judgment and can pinpoint weaknesses of the State’s plans to roll out services, highlighting geographic inconsistencies, slow speed of action or discriminatory policies.

While a positive judgment is always better (for morale as well as law), in the context of strategic litigation, even a negative decision can be viewed as a success if grounded in the bigger picture. A negative judgment can highlight how difficult it is in practice for an institutionalised client to get legal remedies. It can identify gaps in law that prevent victims of violations from accessing justice. These findings can then ground recommendations and calls for law reform as part of targeted advocacy efforts. They can be used to engage media and draw attention both to the issues, lack of available remedies, and – potentially – a stigmatising judicial approach. A negative judgment at the national level can be a step in exhausting domestic remedies, which allows the lawyer to then take the case to an international court. A good strategy therefore should prepare from the outset to plan for both a positive and negative judgment, and to make the most from whatever the courts throw at the lawyer and their client.