ACLU_REPORT by Black Digital

ENVISIONING A STRONGER FUTURE: A GUIDE TO BUILDING ACLU AFFILIATE LEGAL PROGRAMS

Affiliate Support and Nationwide Initiatives

Table of Contents Introduction

Preface

What can you expect to find in the Guide?

Section I

Building a Docket 7 Alignment with affiliate priorities 8 Political context 9 Actual impact, actual change 9 Practice Note: The Importance of Not Bluffing

Preserving capacity for flexibility Maintaining issue balance

Input from internal stakeholders

Affiliate boards and legal panels Input from external stakeholders Practice Note: Saying No and Meaning It Attorney's fees

Executive Director Tips: What is the right level of detail to know about the legal program?

Section II

Legal Program Planning What is legal program planning?

How does legal department planning fit into affiliate-wide planning?

Why should legal programs plan?

What does program planning look like? Evaluating existing work

Defining the upcoming work

Building team values and norms into the work

Finalizing and tracking the workplan

Table of Contents Section III

Integrated Advocacy

A little bit of affiliate history

A hard truth about culture change

It's a lens, not a box to check

Practice Note: Teaming Up During the Legislative Session

Must-dos for effective collaboration

36 36

Get aligned across departments

Make a plan, lean in to process

Educate colleagues in other departments

Communicate

Executive Director Tips: Facilitating integrated advocacy

39 41

Section IV

Co-counsel Relationships

When to bring in co-counsel?

What does the case and the team need?

Whom to reach out to and how?

Setting expectations for the co-counsel relationship

Ensuring quality control and relationship management

Practice Note: Utilizing a Co-counsel Database

Section V

Working with the National Legal Department

Section VI

Regional and Multi-state Work

Section VII

Financial Resources Available from National Conclusion Acknowledgements Footnotes

56 3

Introduction The ACLU is a unique organization – uniquely positioned, uniquely versatile, and uniquely powerful. These strengths derive in large part from its unique structure, with an affiliate presence in every state and a nationwide presence that crisscrosses diverse issue areas, communities, and coalitions, and also crisscrosses venues of action that include courts, legislatures, and government apparatuses at local, state, and federal levels. From school board meetings to state capitols to the U.S. Supreme Court, the organization has eyes, people, and supporters nearly everywhere. Challenges to civil rights and civil liberties change contours over time, but the ACLU’s dynamic ability to meet those challenges wherever they arise is a constant. Affiliate legal programs play a vital role within this structure. For a large part of ACLU history, legal work was the hallmark of its organizational brand and a major source of its effectiveness in changing laws and swaying public opinion. Over time, affiliate legal programs have grown – nearly all of them significantly – and have adjusted their outlook and practices in ways that have, in turn, increased the impact of their work.

The Affiliate Support and Nationwide Initiatives (ASNI) department of the ACLU’s national office aims to support the building of effective and dynamic affiliate programs to meet critical challenges. Following the nationwide organization’s move toward deepening its reliance on integrated advocacy as a primary strategy for safeguarding and advancing rights, ASNI’s work includes an understanding of the elements and best practices that undergird the success of, in particular, affiliate legal programs. This Guide is a living document. It contains learnings synthesized from years of experience of affiliate Legal Directors throughout the ACLU. It aims to trace the evolution of affiliate legal programs over time, and to identify best practices of impactful legal programs and excellent leadership of those programs. It is not meant to be prescriptive so much as a resource for all affiliate Legal Directors and a helpful starting point for new affiliate Legal Directors and Executive Directors.

PREFACE Legal Directors as Senior Leaders in Affiliates Legal Directors are senior leaders within ACLU affiliates. As senior leaders, they should embrace their duty to support and protect the best interests of the organization. This can be accomplished in the following ways:

▶ Contribute to an aligned strategy with other departments, and commit to helping execute the affiliate’s strategic plan through active conversation with other department leaders, particularly where legal opportunities arise that do not fit squarely within the affiliate’s strategic priorities; ▶ Participate actively in the leadership team, representing the views of legal staff to other leaders as well as representing the views of leaders to legal staff; ▶ Seek the advice and counsel of other leaders when issues arise that impede the ability to lead a highperforming team; ▶ Maintain a consistent focus on the big picture in service of an integrated advocacy approach that supports the affiliate’s priorities; ▶ Serve as a resource and support to the Executive Director on matters that arise on the affiliate Board of Directors; ▶ Help secure the trust of the affiliate Board of Directors by providing it with thorough program reports; ▶ Represent the affiliate as a public spokesperson with the media, community partners, and elected officials; ▶ Support fundraising efforts as requested by development staff; ▶ Support efforts to create the affiliate’s annual budget;

▶ Utilize non-legal resources, such as the Program & Strategy Playbook, that can help work through difficult conversations about integrated advocacy and campaigns, such as getting involved in a new issue area and when to pivot from an agreed-on plan; ▶ Contribute to problem-solving within the affiliate as a team player; ▶ Address performance management issues proactively and thoughtfully; ▶ Ensure legal staff are supported in their professional development efforts; ▶ Commit to practices that create a psychologically safe environment that allows staff to challenge the status quo, engage in constructive discussions, and explore innovative solutions knowing their contributions will be respected and considered; ▶ Factor EDIB values into decision-making throughout legal department operations, including hiring and management/supervision, case selection, collaborations with colleagues in other affiliate departments, engagement with allies and impacted communities, and selecting and working with cocounsel; ▶ Model a curiosity mindset about the work of other departments and show appreciation to them; and ▶U nderstand national ACLU policies and any affiliate policies related to substantive issues.

Section I: Building a Docket Section II: Legal Program Planning Section III: Integrated Advocacy Section IV: Co-counsel Relationships Section V: Working with the National Legal Department

What can you expect to find in the Guide?

Section VII: Financial Resources Available from National

Building A Docket

Co-counsel Relationships

A healthy docket reflects the affiliate’s priorities and has the built-in flexibility to absorb emergencies and changes in internal and external circumstances. Building a healthy and right-sized docket takes time, discipline, and planning. This section contains helpful principles to keep in mind for molding and maintaining such a docket.

The importance of co-counsel to ACLU legal work cannot be overstated, and relationships with co-counsel can be as complex as they are essential. This section asks when to bring on co-counsel, and how to best navigate the relationship in service to excellent, collaborative work.

Legal Program Planning The idea of legal program planning can seem intimidating or unnecessary at first; it is neither. Planning is a department-wide process to identify and focus a legal program’s who, what, when, where, and how. This section lays out why planning is the foundation of a well-run legal department, and the steps to incorporate planning in a productive and sustainable way.

Integrated Advocacy Integrated advocacy is a framework for advancing a strategic approach to achieve priorities and goals by maximizing affiliate capacities. Legal departments have an integral role in successful integrated advocacy work. This section looks at how integrated advocacy has evolved at the ACLU and describes best practices for operationalization, including critical tips for goalsetting, communicating, and keeping the ball moving.

Section VI: Regional and Multi-state Work

Working with the National Legal Department Affiliates have a built-in partner in the national office, perhaps most prominently in the National Legal Department. This section underlines the importance of establishing relationships with colleagues in the department and lists resources to support those relationships.

Regional and Multi-state Work One of the ACLU’s great strengths is its federated structure. Affiliates are stronger when they tap into the nationwide affiliate network, working with each other to advance legal advocacy priorities. This section describes avenues for regional and multi-state work, from informal information-sharing to coordinated work.

Financial Resources Available from National ASNI, as a trusted partner in the national office, seeks to build long-term, sustainable power in affiliates. A large aspect of this work is providing financial resources for affiliates to invest in organizational development, talent, and programs. This section describes ASNI’s Grants to Affiliates program and provides resources for affiliate staff to do a deeper dive into the program particulars.

Section I: Building A Docket Case selection1 is one of those areas that seems opaque to observers outside the ACLU, and maybe even to colleagues within affiliates who are not in the legal department. Some think ACLU affiliates pick up every case that could be characterized as involving a civil rights or civil liberties violation. Others think that ACLU affiliates, using a highly specialized impact litigation model, are overly cautious about which cases they bring and therefore maintain a comparatively small docket for the organization’s overall size. In truth, neither is totally correct. In recent years, affiliate legal programs have moved away from an intake-driven waterfront model in which they attempt to delve, reliably and immediately, into as many civil rights and civil liberties issues as possible – every problematic local lawn-sign ordinance or small enforcement action, for example. Affiliates also no longer rely solely (or largely) on a traditional impact litigation model in which the principal goal is to change legal precedent or achieve equally sweeping change. They are increasingly bringing tightly targeted, modestly sized cases that do not fit into the previous waterfront model or the traditional impact litigation model – cases of individual representation challenging a state action, for example, in which class certification or injunctive relief is never sought but where a favorable outcome may have extensive effects nonetheless. This set of adaptations is due to many factors such as the decreasing size of intake programs at many affiliates, the capacity concerns associated with having a large docket of mostly reactive cases, and a nationwide shift toward strategic cases that may be fewer in number but that require substantial resources, are likely more significant in impact, and represent careful planning inside affiliates to align around a manageable number of strategic priorities. The why of deliberate docket curation – deciding which individual cases to bring and what the docket should look like as a whole – is multi-factor and arises in large part from inevitable limits on time and resources.

There is no one-size-fits-all approach and the flexibility inherent in the ACLU’s federated structure allows for an abundance of riches in terms of the breadth of work across the nationwide enterprise. Still, an affiliate legal program that is not picking cases deliberately and strategically will inevitably make poor use of its resources, perhaps because it is spending too much time on many small, nuisance-value cases or on just a few giant cases. Balance in the docket, across various dimensions described later in this section, is a sound alternative to these extremes. Without a careful and systematic process for deciding whether and how to get involved in a case, a legal program’s work may not align with the affiliate’s objectives and priorities, including any major integrated advocacy campaigns. Strong affiliate legal programs have a clear case selection process and criteria in place that can gradually be adjusted over time, as needed. 2 This is not to disempower Legal Directors’ discretion to chart a clear direction, of course – and indeed, new Legal Directors are often hired with the express purpose of charting a new or refreshed course. However, even when a Legal Director seeks to reshape a docket, it should be informed by an established case selection process and criteria.

What are some guidelines to look to in order to mold and maintain a right-sized docket with room for priority-area work while still being nimble and responsive? Below are seven principles for consideration, which are typically included in clear and strong case selection criteria: 1. Alignment with affiliate priorities 2. Political context 3. Actual impact, actual change 4. Preserving capacity for flexibility 5. Maintaining issue balance 6. Input from internal stakeholders 7. Input from external stakeholders

1. Alignment with affiliate priorities One of the north stars for case selection is the set of affiliate priorities in which all affiliate departments are expected to focus their work. Some affiliates refer to these as “strategic priorities,” and land on them after inter-departmental planning processes that sometimes involve the affiliate board and, in some circumstances, the national office and/or outside stakeholders. 3

Building a docket within affiliate strategic priorities also enables Legal Directors to deepen their working relationships with other department directors in ways that enrich the affiliate’s work overall. Importantly, strategic priorities are not limited to issue areas; they can be capacity priorities, such as building relationships in particular communities, demographics, or geographies, or developing new skills or practices within the affiliate or within the legal department. Strategic priorities are primary lenses to help affiliate legal programs think about where and what to litigate, as well as how. For example, a lens on relationshipdevelopment or investigation goals with respect to a particular community – say, in a geographic area where the affiliate has little presence – can be just as crucial as a substantive subject-matter lens.4 Building a docket that reflects the affiliate’s strategic priorities creates opportunities to strategize and develop proactive cases that simultaneously advance cross-department collaboration on goals that do not exclusively revolve around (or even necessarily involve) litigation. Consider an affiliate whose strategic priorities are immigrants’ rights, criminal legal reform, and voting rights. The legal department at that affiliate should work within that set of issue areas to landscape problems and opportunities, link up with community organizations and allies, and work up cases in consultation with colleagues in other departments that get to the heart of what impacted communities are experiencing in those areas and to identify the right lane for legal strategies within the affiliate’s overall objectives. 5 8

Building a docket within affiliate strategic priorities also enables Legal Directors to deepen their working relationships with other department directors in ways that enrich the affiliate’s work overall. Like all collaborative work, the process of building alignment across departments on shared goals, including in integrated advocacy, is one that requires honest input and accountability across teams. That foundation then continues to support further cross-functional work, whether explicitly framed as integrated advocacy or not. For example, if a legal opportunity appears that is not squarely within the affiliate’s strategic priorities but is compelling for other reasons, a shared commitment to organizational priorities enables senior leaders at the affiliate to give input on whether the legal department should take the case, and how it may impact future resources, community partners and other stakeholders, and other work happening across the organization. This process is largely about transparency and trust, and also ensures that decisions about any work that does happen outside an affiliate’s strategic priorities are not made in a vacuum. Instead, it is carefully considered not only from the legal department’s perspective, but takes into account how the organization at large is impacted by the work.

Experienced Legal Directors know to address the implications of potential new legal work directly with their colleagues: ▶ I s the action under consideration something that will impact all affiliate teams, including by giving them additional work they may not have capacity for? ▶M ight it harm or advance a policy or narrative (or other) outcome that the affiliate is working toward? ▶M ight it affect the affiliate’s relationship with a partner organization or the politics of any coalitions in which the affiliate participates? The goal for the legal department is to work with other departments toward shared goals, not for each department to simply hand off work to one another in unrelated buckets.6

2. Political context The political context in which the affiliate operates is immensely important in shaping case selection. For example, an affiliate where the worst bills in the state legislature are kept at bay by pro-civil rights governors and legislative majorities, or where state agencies have interpreted or enforced relevant policies with a procivil rights orientation, is likely to face different types of threats than an affiliate where extreme bills are signed into law and where actors hostile to civil rights and liberties may even have a supermajority. The composition of the courts may also dictate what is possible at a given time. For instance, state courts may be more promising than federal courts as venues for civil rights and liberties protection, or vice versa, and in some jurisdictions all the available courts might be hostile ones.7 Broadly, the reality of politically hostile courts informs decision-making around which cases an affiliate chooses to use its capacity developing and bringing. In states with significant anti-civil liberties majorities on their highest courts, the affiliate may opt to explore cases that have a greater path to victory with those courts – by strategically considering what types of claims to bring on what types of issues, who the plaintiffs are, and who co-counsel is. Affiliate priorities and political realities can, and often do, reinforce and inform each other. If there is not a specific set of priorities at the affiliate, or if the jurisdiction is broadly and predictably hostile to civil rights and liberties, the legal program may need to preserve more capacity for reactive/defensive work, including challenging the passage and/or implementation of regressive legislation. And if the political conditions on ACLU issue areas ease a bit – as is often the case in purple or purplish states – there may be more time and capacity to think about developing proactive litigation priorities. How the legal program moves between working on specific affiliate priorities and responding to emergencies will fluctuate, but it should always be done in consultation with affiliate colleagues and partner organizations. It may be that there are times when the affiliate’s strategic priorities take a backseat so that the legal department can use bandwidth to defend the most basic rights, or to pursue opportunities in an emerging and urgent issue area.

3. Actual impact, actual change Within an affiliate’s priorities and political context, there is a lot of latitude. Foremost among the considerations for a legal program should be impact, in both the lay and legal senses of the word: ▶ S cale: What provides the greatest benefit to the greatest number of people, or to people – regardless of their number – whose needs and concerns have not been adequately or historically addressed?

▶ L ane: Where can the legal department specifically,

and the ACLU more generally, actually have an impact? Given the affiliate’s mission, status, and capabilities, what can it do that other organizations can’t, or can’t do as well?8

▶ Definability: What kind of impact will this particular

case have? How exactly is it going to have that impact and make that change, perhaps beyond the actual parties to the case? What exactly does the case seek – monetary damages, institutional and systems reform, narrative or policy impact, something else?9

▶ Long-term/strategic impact10: Can this case advance

a longer-term strategy? Does it have the potential to strengthen a body of law, move the law forward, create a new right of action or a precedent to set up subsequent litigation, or spur or support legislative or political action? Can it create new opportunities for action if successful, such as educating or generating new opportunities to organize the public? Can it help support other goals even if not successful?11

▶ R elationships: How does this case create or deepen our relationships with important constituencies – including impacted communities and other partners – and what do allies and impacted communities want?

Input from allies and impacted communities is also central to the question of analyzing impact.12 If, for example, a trusted partner tells the affiliate that something is a significant problem – for example, prayer in school, stop-and-frisk practices, limited visitation access to incarcerated people – that input is an important indicator. On the other hand, so would a partner sharing that it believes litigation could cause harm to community interests. Once a problem area has been identified, the best next step is to investigate exactly what potential litigation is and is not about, and what may be possible. Say the identified problem is jail conditions: is the focus on improving access to medical care, addressing violence, abolishing solitary confinement, something else? Where can this team and this case make an impact? How can the ACLU be a leader in this space, in the right lane, alongside and responsive to partners and other organizations in the same space? 13 The answers to these questions must be weighed against the time, capacity, and resources that are likely to be needed for the case (especially relevant in jail conditions cases, which tend to be fact-intensive and long-lasting, with uncertain results). An elemental consideration for the affiliate is whether this individual case moves the needle in a way that has real impact in both the near and longer term – perhaps by setting further changes in motion, creating or setting precedent that can be built on for the next case, or putting pressure on political actors to take action that may cement a litigation win or assuage a litigation loss.

Where can this team and this case make an impact? How can the ACLU be a leader in this space, in the right lane, alongside and responsive to partners and other organizations in the same space? 10

“What can we do that no one else can, or do as well?” gets to the heart of the ACLU’s unique positioning and stature in the legal arena. Even though there is an increasing number of organizations and members of the private bar that work in core ACLU issue areas, the ACLU often has the ability and the freedom to pursue cases that the private bar may not, with fewer incentives to minimize the chance of going to trial or to maximize damages and fees. For example, in a case against law enforcement officers, private attorneys might accept a confidential money-only settlement in order to ensure a return on their investment, even though such a victory is unlikely to have much impact beyond the plaintiffs themselves. ACLU affiliates are uniquely positioned to pursue a longer endgame with an eye toward injunctive relief and remedies, especially where they have committed to a case, in a strong affiliate priority area, with a specific goal that may involve more than just the success of the litigation (e.g., a related policy or organizing outcome). The ACLU’s ability to focus on gaining systemic change instead of obtaining monetary damages as quickly as possible can put us in an unusual and sometimes challenging position with respect to clients. This reality is yet another factor to consider when it comes to picking cases and a significant aspect of client communications and expectation-setting more generally. Put more concretely, it is critical to assess alignment between the client’s and the affiliate’s goals, and also for the affiliate to consider all the possible outcomes, in light of the ethical reality that clients are always free to accept settlements that deviate from their initial goals and the practical reality that they sometimes do so, as their feelings and circumstances evolve over the course of a multi-year legal battle.

In addition, the ACLU brand often brings significant power to bear from the moment it surfaces, which means that the threat of litigation – whether implied or explicit – can be just as powerful as initiating litigation. Affiliates are frequently able to secure a positive outcome by reaching out to government agencies to informally persuade them toward, or dissuade them from, courses of action by sending demand letters, drawing media attention, or by mobilizing members of the public for or against proposed government actions.

This result is even more prevalent in states where the decision-makers in the executive branch are receptive (or at least not automatically opposed) to ACLU advocacy. For example, some affiliates operate in states where executive agencies charged with implementation and enforcement of important statutory rights and entitlements solicit stakeholder input. In that context, the ACLU can have a productive working relationship with the heads and staff of such agencies and can use those relationships to obtain important changes and policy and practice concessions.

“ What can we do that no one else can, or do as well?”

Practice Note:

The Importance of Not Bluffing The power of the ACLU brand means it can be dangerous to bluff with the threat of litigation. A best practice is to never imply or state outright that litigation is on the table unless the affiliate is ready and willing to bring said litigation. In fact, a completely innocuous inquiry can be read as a litigation threat simply by virtue of arriving on ACLU letterhead. Careful affiliates affirmatively state in such inquiries that no decision has been made about litigation. In most jurisdictions, the ACLU is a known quantity, and its clout and credibility can only be maintained in the long term if it avoids empty threats, especially with respect

to entities it interacts with regularly, like government agencies. Certain actors may even be incentivized to action by the threat of a lawsuit from the ACLU, seeking to capitalize on the power of the ACLU brand for their own oppositional purposes. They will dig in or harden their stance as a way to bolster their political bona fides or demonstrate reactionary values. There are times when it is well worth considering whether the ACLU brand – to say nothing of an ACLU threat to litigate – may in fact harm the likelihood of a desired outcome.

4. Preserving capacity for flexibility ACLU affiliates are under constant pressure to fill the legal department’s plate with all of the cases that the team can conceivably handle. This is especially true in states where the affiliate is one of very few public interest legal organizations. A best practice is to resist that urge and leave room for emergent opportunities, outright emergencies, or otherwise unexpected cases, such as: ▶U nforeseen collaboration opportunities with projects in the National Legal Department;14 ▶O ne-off emergency cases that are suddenly brought to the affiliate’s attention in issue areas it does not normally work in but may be related to existing priorities; ▶C ases or investigations that had been on the back burner and suddenly become live again due to changed facts or a new government action; ▶ T ime-pressing or substantively creative collaborations or co-counseling opportunities with other organizations (e.g., where more than one direct services provider has brought a civil rights issue to the affiliate’s attention that it makes sense to address via impact litigation instead of on a piecemeal, potentially inconsistent basis in individual cases); ▶O pportunities for meaningful staff development, such as taking on a case that may not be novel or even particularly high-stakes but provides a junior attorney with an opportunity to develop and lead their own case for the first time; and ▶R eactive work that must be undertaken in response to emergencies like egregious legislation or government actions, including unexpected developments and challenges relating to elections and election outcomes

Each case limits a legal department’s ability to take on another case that may appear tomorrow – and, of course, also affects time and resources available to spend on the existing docket. Each case also represents a potentially large commitment of two to three years, or substantially more (five to ten years is not unheard of), and the department’s lawyers are ethically committed to seeing all those cases through. This is another reason a docket can’t be created or changed overnight. There must be built-in flexibility to work on things that come up suddenly or on an emergency basis in a situation where the affiliate wants to respond strongly or is the only organization in the state that can respond. The only way to be able to absorb unexpected work is to be able to shift or otherwise find room in the work that the legal department is focused on, and quickly.

5. Maintaining issue balance The ACLU is a multi-issue organization and affiliate legal departments do not have one issue area as their sole focus. Instead, their obligation as a civil rights and liberties organization is to maintain a balanced docket in multiple issue areas, while focusing capacity on their affiliate’s strategic priority issues and campaigns. It is not possible, or even desirable, to have complete balance in each of those different issue areas, and some of them will naturally be more robust or resourced than others. Some affiliates have implemented a proportional model of time and capacity, such as “80/20” (80% priority campaigns, 20% non-priority work), to guide how their work will be prioritized. Legal programs working under that model put effort into zealously guarding the roughly 20 percent to be able to take on important work relating to civil rights and liberties issues that are outside defined priority areas; they do not discount the importance of seizing an unusual opportunity when a government actor does something that has to be challenged and where the ACLU is best positioned to mount that challenge. Cases come along that should not be turned down. Leaving some bandwidth to take cases outside of priority areas when it makes sense is a key aspect of maintaining flexibility in the docket.16

6. Input from internal stakeholders Within an affiliate, there are sources of inspiration and support for exploring legal advocacy options, and key stakeholders that may be important to consult. For example:

▶O rganizers who may relay what community members or volunteers are telling them about troubling civil rights and liberties violations they have experienced, whether in an existing priority area or in a completely new and unfamiliar issue area; ▶ T he Executive Director, who has a lens on affiliate work spanning the nationwide organization; ▶ T he Development Director, who may be aware of new resources for an area of work;17 ▶ L egislative, advocacy, and policy staff, who may hear from lobbyists or allied policymakers about emerging legislative threats or opportunities at the state or local levels; ▶C ommunications staff, who may be aware of civil rights and liberties issues that have bubbled up through media or social platforms; and ▶A ffiliate board members, usually including lawyers who may have established relationships with key partners and communities, or helpful specialized expertise.

A Note on Internal stakeholders: Affiliate Boards and Legal Panels All affiliates have a Board of Directors; some affiliates also have a legal panel. A legal panel is a body which takes different forms and has different functions across affiliates, but generally is a volunteer committee that advises the legal staff on case selection, has case approval authority, or both. Depending on the affiliate, the legal panel’s members are board members or nonboard members, are lawyers or non-lawyers, and serve time-limited terms or terms that functionally have no end date. In the past, some affiliate boards were “working boards” in which members helped to implement affiliate strategy, including by participating in cases and setting legal strategies and tactics. However, there has been a reconceptualization of the role of affiliate boards in the last decade, which is due to several factors that include the expansion of full-time legal staff capacity 18 and boards becoming more diverse in terms of demographic characteristics as well as professional experience and specialization. The trend has been away from boards’ active participation in programs and toward their high-level contribution to governance and leadership; away from standing board committees on legal, legislative, and policy matters, and toward increased deference to affiliate staff expertise. The modern affiliate model is one where boards now function less as “working boards” and more as “governing boards” that weigh in on high-level affiliate priorities and policies; provide support and guidance with a light hand to professional staff who implement those priorities and policies; and focus on generative questions that relate to the affiliate’s overall strategic positioning and to strategic planning that is undertaken in partnership with staff. With specific respect to legal programs, Executive and Legal Directors have advocated in recent years to reduce the requirement for the legal department to obtain some type of external approval before initiating litigation. Such external authority can infringe on the legal staff’s areas of professional responsibility, particularly with respect to the Legal Director’s sphere of authority;decisions on new litigation, and how litigation and legal advocacy are planned in service of the affiliate’s strategic priorities, should remain squarely within the realm of legal staff. 14

There are critical advantages to keeping litigation decisions – particularly those relating to new litigation – completely staff-determined. Most obvious is eliminating the incongruity of legal staff’s professional judgment being subject to – even potentially overruled by – a group of non-staff volunteers. In the more desirable (and increasingly common) scenario, a governing board sets the overarching priorities and goals of the affiliate writ large, and the staff is then responsible for making the operational decisions that determine how those priorities and goals are implemented. More generally, it is simply an odd practice to have non-staff volunteers approve tactics and operational decisions in just the legal department. Volunteers and board members do not have approval authority relating to the nuts and bolts of affiliate programmatic work in communications, policy, organizing, and other areas. Litigation is one of many tactics that affiliates utilize to achieve organizational goals; it should not be the only one that involves an extra level of oversight and approval. Such approval 19 was formerly a practice that acquired a structural permanence, and it no longer fits well where there is a team of experienced attorneys on staff. As a result, affiliate boards and legal panels having case-approval authority has become an outdated model for ACLU work, and the trend away from such systems is borne out in the numbers.

The modern affiliate model is one where boards now function less as “working boards” and more as “governing boards” that weigh in on high-level affiliate priorities and policies; provide support and guidance with a light hand to professional staff who implement those priorities and policies; and focus on generative questions that relate to the affiliate’s overall strategic positioning and to strategic planning that is undertaken in partnership with staff.

Around 2019, about 20 affiliates had systems in place that required external approval for new litigation, whether from the legal panel or the board. Within just a few years, by mid-2023, only about 15 affiliates still relied on such a system, and several of those affiliates are currently transitioning toward (1) an internalapproval-only system, and/or (2) a system that allows for broadly defined exceptions to external approval, including for amicus briefs, when circumstances are exigent, and if a case is in a category that has received pre-approval, such as public records requests. A majority of affiliates – at least 30 – require only internal approval (and two affiliates have a hybrid system). Where there is a legal panel, it is strongly advised that its role be clearly defined and limited. Specifically, the final say on new litigation should squarely be the domain of the Legal Director and Executive Director, where the latter approves litigation proposed by the Legal Director.

The Executive Director’s role is to have ultimate decision-making authority for all programmatic and operational decisions of an affiliate, always with the big picture in mind. However, many affiliates proactively request the legal panel or the full board’s input in certain circumstances where it is deemed necessary, including where: ▶ L itigating a proposed case would likely entail asserting a position that conflicts with an affiliate or national office policy; ▶ L itigating a proposed case would likely entail asserting a position that prioritizes one constitutional or civil right/liberty, group, or affiliate goal or interest over another; ▶ L itigating a proposed case would entail reputational risk to the affiliate, in that bringing the case could be so controversial that it has the potential to substantially impair the affiliate’s ability to succeed in work outside the case; or ▶ L itigating a prop osed case would likely require a significant expenditure of affiliate resources beyond what is normally foreseeable for its cases (though this circumstance may not apply where co-counsel has already agreed to pay expenses in full).

In the legal department, relationship-building is not just the function of the Legal Director. Everyone in the legal department has a role to play, drawing on their own relationships with stakeholders and community or partner organizations, independently or in conjunction with colleagues in other departments. The legal department may also opt to consult the legal panel when doing so is not required, strictly speaking – for example, where discussion with the panel might enrich their considerations around legal strategy, framing of the issues, or coalition opportunities. This case-related advice and consulting is a direct benefit. There is also an indirect benefit, in that a legal panel can help educate important legal partners about what the ACLU is doing. In turn, this helps recruit supporters and volunteer attorneys, helps lead to ideas or connections for future cases and political initiatives, and helps with coalition partnerships in the legal/ progressive community. There are situations in which this type of benefit is more consequential than the direct benefit of case-related advice.

7. Input from external stakeholders Successful affiliate legal programs ground their work in relationships. For new Legal Directors or Legal Directors who are new to the region where the affiliate is located, a good way to begin developing inroads and relationships in the legal community is by cultivating proximity to the state’s advocacy, legal, and community landscapes through meetings with civil rights practitioners, community groups, activists, judges, partner organizations (including but not limited to organizations engaged in litigation), legal services organizations, and others. A best practice is to solicit introductions and request meetings to get acquainted 15

with players in these landscapes – and, where possible, to connect through affiliate colleagues who hold those relationships, and who can make the introduction and provide relevant and helpful context ahead of time. In addition, legal research can help identify major public interest cases and players in the state – not just in traditional civil rights and liberties, but also in related areas that have common thematic and legal roots (like criminal procedure), to get to know where the gaps and emerging issues are. In the legal department, relationship-building is not just the function of the Legal Director. Everyone in the legal department has a role to play, drawing on their own relationships with stakeholders and community or partner organizations, independently or in conjunction with colleagues in other departments. The process of building trust with the legal and advocacy ecosystem around the affiliate is a long one that can take years and does not ever end, as it is more of an ongoing practice and a muscle to be cultivated. But it pays dividends over time, including in advice, expertise, research, potential co-counsel opportunities, intakes/ referrals that could lead to cases, a pool of future interns and attorneys, and places to refer people for support or legal advice when the affiliate is unable to provide it.

▶ P rivate bar: Law firms, bar association committees and trial lawyer associations (such as § 1983 practitioners and criminal defense lawyers), legal academics. These are the people who can provide the lay of the land on substantive legal issues and court developments in different jurisdictions. While some public interest lawyers reject being in community with for-profit lawyers, there are significant benefits from making these connections, including cultivating potential co-counsel, donors, or board members. 20 The legal program’s work and the value of connections it makes are not limited to creating benefits just for the legal department, but rather for the whole affiliate.

▶ P ublic interest bar/social justice advocacy and grassroots movements: Leading public interest legal organizations with a national profile (such as the Legal Defense Fund and Leadership Conference on Civil and Human Rights), many of which are frequently co-counsel with the ACLU, and local advocacy and grassroots groups (such as immigrants’ and workers’ rights groups and voter/civic advocacy groups). They can identify gaps in services and other opportunities, and help navigate fraught relationships, especially in loosely organized issue coalitions. Another tangible upside to being in community with these networks is that they can be a great source of clients.

▶ D irect service provider community: Civil legal services An affiliate legal program’s relationships with stakeholders (both legal and non-legal) 

Private Bar

Government actors

Public Interest Bar, Social Justice Advocacy and Grassroots Movements

Direct Service Provider Community

and public defense organizations. These are the stakeholders who may not be as focused on legal and policy reform as impact organizations like the ACLU, but who directly interface with the communities who are most impacted by the worst practices. They tend to be maxed out and often appreciate help looking at broader problems that can be attacked on a systems level. They can also be a great source of referrals, some of whom may turn out to be individual plaintiffs.

▶ Government actors: Local, state, and federal agencies,

and the lawyers who head and staff them. These include mayoral executive agencies, municipal corporate counsel, state A.G.’s and local D.A.’s offices, U.S. Attorney’s offices and federal agencies charged with service provision, enforcement, rulemaking, and legal implementation.

Building relationships requires work for both parties and can often be aided by exchanging mutual benefits that may form the basis of a lasting relationship. For example, is there a Know Your Rights presentation (or other resource or communications/education module) that would be helpful to a direct service provider? 21 Is there a constitutional law CLE that a local bar association might be seeking? Can the affiliate commit to acting as an occasional resource on intake/ referrals? Is there a role on the affiliate board for a firm partner or senior leader from an allied organization? How can the ACLU be a value-add to that organization? Relationship-building is a constant process because the ecosystem is always changing. People in leadership positions change, new organizations appear, coalitions fracture and spin off, and new issues take center stage. Strong legal programs build a culture among legal staff that values relationship management and trust-building as necessary parts of their work and a crucial part of integrated advocacy in the long term. In addition to generating input on affirmative case selection, external community input and expertise can help in making decisions about which cases not to take. For example, if a call with community leaders or partners reveals strong sentiment that a case would actually do harm, or have an otherwise undesirable impact, that information is very valuable to the affiliate’s decision to proceed or not, and how. Doing the outreach will have been worth it to prevent a potentially disastrous outcome. A case to challenge a bad practice may present as a no-brainer at first, until people who are impacted by the bad practice identify ways the case will hamper work they are already doing in the community or have some other negative consequence. Being in relationship with impacted communities informs a comprehensive viewpoint that helps an affiliate avoid doing work in a vacuum.

One of the most important sources of input and advice for any Legal Director is the community of other ACLU affiliate Legal Directors and attorneys in the National Legal Department, including the Project Directors. The amount of expertise, experience, and collective resources available from the community of ACLU lawyers is invaluable. Affiliate Legal Directors ask and answer questions, and exchange helpful information, on various listservs. 22 At the start of their tenure, new Legal Directors benefit substantially from reaching out to more experienced colleagues for informational interviews.

More generally, affiliate Legal Directors benefit on an ongoing basis by cultivating close relationships with: ▶ L egal Directors of the affiliates geographically close by and/or in the same federal circuit, as they are likely to encounter many of the same issues, communities, and legal challenges; ▶ L egal Directors who may face similar opportunities and challenges based on the size of their legal department, the demographics of their jurisdiction, and/or the political climate in which they operate; and ▶D irectors and attorneys in projects in the National Legal Department with which the affiliate has done or plans to do collaborative work, including cocounseling cases.

Practice Note: Saying No and Meaning It A foundational part of preserving capacity for flexibility is saying no to potential cases. Knowing what the legal department, as a team, cannot or should not take on at a moment in time is a type of expertise and a key management role for Legal Directors; what does not take up space on the department’s plate is perhaps just as important as what does. For example, if criminal legal reform is not an identified affiliate priority, and the legal team is a small one, it may not be wise to take on a potentially decade-long systems-reform case on solitary confinement, as important as that issue may be. This is where and why relationships matter: there will be other civil rights groups and/or individual practitioners who can take the case. The legal department’s time is well spent building up speedy and effective referral practices and referral networks by subject area, to activate in situations where it has to say no to a potential case. Nearly all case decisions come down to difficult resource allocation decisions, and Legal Directors are unequivocally engaged in resource management.15 What are the human and financial resources from the legal team and from outside sources like cocounsel? At small and medium-sized affiliates in particular, adding one additional case to the docket can represent a significant new workload for the team. Excellent work on existing cases requires that there be some measure of steadiness and predictability, at least in terms of the larger matters on the docket. It also requires that team members have breathing room: the ability to maintain focus, drive, and hope in their cases. Quality over quantity is key to the sustainability of the team, both as humans and as professionals whose job is to produce excellent legal work. There is a another potentially significant and longlasting consequence of not saying no. Say the legal department is eager to work in a particular area, such as challenging racist policing practices. The first policing case that appears at the affiliate’s doorstep may not be the right case to accomplish the affiliate’s goal. Inadequate screening can lead 18

to bad cases that take up valuable capacity in an already full docket. The department could also end up in any number of difficult situations: subpar partners or co-counsel, unreliable plaintiffs, weak or ultimately unsupportable legal claims due to investigation and case development processes having been glossed over in the urgency to get a case moving. In turn, any of these situations could lead to potential reputational loss. The ACLU is known for zealous, best-in-class advocacy, and that reputation is especially meaningful when we opt to sue; the decision to file signals something to external and internal audiences. Filing without due diligence as a result of rushing in an abundance of eagerness, and having the litigation potentially proceed downhill as a result, is emphatically not a risk worth taking. Legal departments should resist agreeing to take on a case until the right indicators point to yes, which happens when the right plaintiff(s), the right facts, and the right vehicle(s) for relief line up. This discipline takes a lot of work and possibly a lot of time but is ultimately worth it. It helps to prepare the legal team about how to say no to partners and stakeholders who are seeking ACLU legal action. Saying no to a potential case, including important cases, without burning bridges or damaging relationships requires transparency, candor, and care. For one thing, it helps to orient the affiliate’s close partners to its priority issue areas ahead of time. This is another reason that communicating affiliatewide priorities inside and outside the organization is so important; it prepares stakeholders for when an affiliate has to say no to cases that appear to be within the ACLU wheelhouse but where is no capacity to take them on. In addition, it helps to point partners and stakeholders to other potential partners, such as legal services organizations and nonprofits working in issue areas that overlap with the ACLU’s. Finally, the legal team should consider educating colleagues in other departments about its litigation priorities, so that those colleagues, in turn, can set expectations effectively when it comes to their own relationships with some of these same partners. Message clarity across the affiliate is important when it comes to managing partner relationships.

Practice Note: Attorney’s fees as an unexpected windfall, not as a factor in case selection The basics Lawyers outside the ACLU might be surprised to hear that attorney’s fees – specifically, the prospect of significant attorney’s fees – are not a primary element of case selection criteria. The above section shows the myriad other considerations that do go into case selection and docket curation – among them impact, institutional reform, and protection of bedrock civil rights and liberties. As a general matter, a focus on fees during the case selection phase is misplaced. Best practice among experienced affiliate Legal Directors is an approach to fees that can fairly be characterized as “Let’s vigorously pursue them when we can get them, but they don’t drive case selection or the resulting litigation.” No single case selection decision should be based on fees but many Legal Directors do make it a goal to include in their overall portfolio some fee-generating cases.

Known unknowns Making predictions as to whether a given case will generate fees – much less how much the fee award will be and when the affiliate will see such award – is an impossible endeavor. Even if a case holds the possibility of a large fee award in theory, there exists no guarantee that the affiliate will see some, much less all, of a fee award. Plaintiffs leave cases, or the case could settle with a focus on policy reforms or monetary damages, both of which might reasonably involve negotiating on fees. Ironically, the prospect of significant fees due to the strength of the case and to having won some early successes in the case may actually increase the likelihood of negotiating on fees. Take the example of a victory at the crucial preliminary injunction stage; now there are possibly hefty fees on the table, especially if the case goes to trial, and suddenly there appears significant leverage for settlement. At that point, the legal department may negotiate downward on the fees front but walk away with fantastic results on law and policy, plus monetary damages for its client(s) and other items that achieve its litigation goals. This added ethical dimension – in the form of the obligation to consider such a settlement offer,

even if it requires a fee waiver – is another reason that no fee award should be viewed as a certainty. In addition to the unknowability of the amount of fee awards, even where there is a fee award there is little certainty around when it will be paid. Cases and settlement processes may last longer than expected. A case could start in Year 0 with maximum projected fees of $1 million. It goes from district court to the circuit court of appeals and back down, perhaps twice and with a few detours, before the client prevails; this could easily be five years and ultimately the affiliate is looking at collecting 10% of $1 million.

Budgeting is not impossible Although fees are not a driving force in case selection and litigation decisions, it is possible to try to account for fees in the affiliate’s budgeting process. Budgeting for fees is admittedly an easier proposition for larger affiliates that have sizable dockets and can derive estimates based on history. For example, with 40 cases at a time and 5% of them generating fees, an affiliate can reasonably calculate that it expects $X in fees over a period of Y years. But even at small affiliates, a Legal Director can think about creative ways to derive fee estimates for the benefit of their colleagues in the finance department. For example, they can generate a very conservative estimate based on open cases that are theoretically candidates to settle or resolve that year. Or they can generate an average based on previous fee awards, since such averages would likely even out over time and can be accounted for without adversely affecting the finance department’s operations; a three-year average is common. Note that no affiliates rely on fees as the primary (or secondary, or tertiary…) component of their budget. It is one thing to be asked as a colleague to provide an educated estimate, as part of the annual budgeting process, of fees that the legal department may obtain. It is quite another to be leaned on to bring in more fees, or to bring more cases that entail the possibility of fees. If the Legal Director feels pressure akin to the latter scenario, they should consider reaching

Practice Note: Attorney’s fees as an unexpected windfall, not as a factor in case selection out to other affiliate Legal Directors about how to speak forthrightly with colleagues on this topic – in particular, about how fees work in the litigation process and how uncertain they typically are. When the legal department obtains fees, they typically go to the affiliate’s general operating costs; in some jurisdictions, this is what entitles the affiliate to obtain fees in the first place. They do not go into the legal program specifically, and the Legal Director

does not negotiate with the finance department about how to spend fee awards. However, the Legal Director has an important role in recommending a legal department budget based on needs, then discussing the recommendation with the Executive Director and their colleagues in the finance department. Though fee awards are largely irrelevant to that discussion, this does not mean that the Legal Director does not have any influence over the legal department budget more generally.

Executive Director Tips: What is the right level of detail to know about the legal program? Executive Directors put significant thought into what is the right level of oversight they should have over the legal program. For example, particularly when the Executive Director is not a lawyer, they are often curious whether there is a “magic number” of cases that the legal program should have or strive for. The short answer is that there is no magic number. A legal department consisting of a Legal Director, one staff attorney, and one paralegal can have a docket of 10 or more active cases, if all of them are co-counseled by experienced partners doing much of the heavy lifting. And a large legal department with a dozen attorneys can easily have a docket of 50 or more active cases. There is a wide spectrum of what can be considered the “right” number of cases. Generally, when it comes to level and type of oversight, Executive Directors do well to keep in mind that good communication is key. The ideal relationship is one where the Executive Director and Legal Director have generative conversations about the most impactful work and opportunities in the external environment, including strategic conversations about potential and ongoing work. This does not mean the Executive Director needs to be involved in the granular details of each litigation, investigation, and legal advocacy project.

G enerally, when it comes to level and type of oversight, Executive Directors do well to keep in mind that good communication is key.

Executive Directors and Legal Directors should consider how best to use the time dedicated to their check-ins. Best practices include: 1. U se a structured check-in agenda. Like all checkins, it is best to have an actual agenda and stick to it. Maybe all an Executive Director wants is topline progress updates on legal department goals, a headsup about major issues and controversies, or a quick view into the Legal Director’s management and how legal department staff are doing, personally and professionally.

2. K now what is, and is not, need-to-know. Executive Directors gain very little by being in the weeds of every matter on the team’s docket. Ideally, at each check-in an Executive Director gets: a rundown of major legal victories, challenges, and opportunities; a summary of important upcoming developments and case milestones; and a discussion of any pain points or hard decisions that would benefit from their input (e.g., actions that could affect the affiliate’s relationship with a coalition partner or that could have a significant impact in a priority or marquee case).

3. L isten carefully and schedule additional time for management issues as needed. Check-ins are great for sharing updates and grinding through major decisions. A Legal Director is responsible for overseeing a high-functioning team and as such, should regularly be surfacing issues related to management and oversight, including staff development (“Is everyone on the team making use of their skills and advancing in a way that makes sense?”); potential team shuffles (“Are there promotions and title changes on the table? Do we need to hire a paralegal or investigator or research attorney?”); their own needs and capacity as head of the legal program; and big-picture conversations about the strategic direction, and high-level or longer-term goals and plans, of the legal program, including how it is leaning into the affiliate’s overall strategic priorities. Where necessary, additional time should be set aside to ensure that these important leadership issues are not put on the back burner to surface only when a crisis level has been reached.

Section II: Legal Program Planning The previous section, about building a docket of cases, identified the importance of having clear case selection policies and selecting legal work intentionally and judiciously. Building a docket and engaging in legal program planning (sometimes referred to as legal department planning) operate in tandem, enabling affiliate leadership to understand and then to grow and maximize, with intent and foresight, their staff and departmental capacity.

What is legal program planning? At its core, planning is a department-wide process to identify and focus a legal program’s who, what, when, where, and how 23: ▶S etting goals for a defined time period (with annual planning being a best practice); ▶ Designing strategy to reach those goals; ▶B eing intentional about current commitments and timelines, not just for litigation but also for other legal advocacy in the department (e.g., such as policy analysis, administrative advocacy, legal research into new issue areas) and for capacity-related work (e.g., building and maintaining relationships in communities, engaging in individual and team skills-building, and using new tools to assist and improve legal department practices and procedures); and ▶D efining roles and assigning that work to legal department staff effectively in order to reach those

goals. Importantly, while legal program planning can be a smoother process where the affiliate has already undergone a strategic planning process that has identified a set number of high-level goals and priorities, that is not a necessary precondition to planning. Even if the affiliate is building up to a strategic planning process, significant benefits exist where the legal department can articulate its priorities, seek feedback from colleagues and other stakeholders, and communicate when and how it might ask things of their colleagues in other departments, so that nothing is entirely unexpected. 24

How does legal department planning fit into affiliate-wide planning?25 Affiliates engage in many different types of planning – strategic planning, annual planning, campaign planning, integrated advocacy planning (both generally and within an 80/20 model), and individual work planning among them. Nearly all are coordinated, affiliate-wide (or significantly cross-department), time-intensive processes. 26 This section focuses on the interaction between affiliate-wide annual planning and legal department planning. Broadly, affiliate-wide annual planning orients and unifies departments around strategic priorities; identifies goals and expected outcomes, as well as a timeline and specific measures of success; and ensures that the use of organizational resources (both monetary and staff time) is aligned with priorities.

Planning Ecosystem Within this process, each affiliate department should create annual plans that are informed by, and flow from, the affiliate-wide annual plan. Carefully laid legal department plans ladder effectively into affiliate-wide planning, and both processes should be viewed as being in conversation with each other, as illustrated here:

Strategic Plan

Annual Plan

Legal – Comms Advocacy – Field/Organizing Development Operations/Finance Plans

Campaign Plan(s)

More specifically, the legal department planning process translates, operationalizes for the legal department, and builds ways to complement the affiliate-wide plan. It seeks to accomplish this by: ▶ T ranslating the affiliate’s strategic priorities and goals into action in the form of programs, events, and activities; ▶R econciling planned legal department work with available resources, including by identifying budget needs (e.g., litigation costs in major cases); ▶ I dentifying resources, and any gaps or needs, required to meet goals (e.g., new tools or technology, professional development opportunities and trainings, additional work to develop issue area expertise) and proposing solutions to fill those gaps or meet those needs; ▶ I dentifying areas of coordination and integration with other departments and/or campaigns; and ▶D eveloping a department timeline that aligns staff members’ work with the affiliate’s strategic priorities and identifies measures of individual and team success.

Why should legal programs plan? Planning is necessary so that the legal department allocates its time in a way that ensures it is prepared at least for the things it knows it will likely work on, creating a stable foundation on which many unforeseen pieces of work will inevitably land. So much of the legal department’s work – most applicable in active litigation – is unpredictable and happens at breakneck speed. There are tight deadlines, emergencies, unforeseeable twists and turns in cases. Staff are better able to handle all those difficult aspects of legal realities if there is some modicum of control and predictability from planned and proactive legal work where it is possible to know ahead of time and build such work in. Planning is not about dictating what everyone will work on every day for months and years, nor does it require an enormous and unwieldy planning document or written workflow containing the minutiae of all conceivable legal work. Planning can be done on a modest scale. Most importantly, there is no onesize-fits-all planning model that works for affiliates of all sizes that have diverse priorities and styles of collaborative work. 28 23

Envision the “why” of planning as a matrix of related reasons:

Work Quality

Akin to planning in other affiliate departments, legal department planning involves a few key elements: ▶R esearch and evaluation

▶ S et a specific direction for the legal team’s work ▶ H one overall strategy and specific plans ▶ Define success (not limited to litigation)

▶G oals (program & capacity)

Team Clarity

▶S trategic imperatives

▶ Build alignment and establish role clarity ▶ Motivate the team with agreed-on milestones ▶ Generate shared urgency and focus

Process Benefits ▶ P rovide accountability ▶ H elp us say “no” ▶ B uild continuity so the legal program can continue to build on its work year over year One concern that may arise in the context of considering the implementation of a plan is what to do when inevitable emergencies and major opportunities appear. Does planning mean that the legal department is unable to switch gears, to pivot smoothly to nonplanned work? No, because planning does not mean that team members only work on what’s already in the plan. It is an instrument to see all the work as a cohesive whole and, as a result, to see all the places where pivoting will be comparatively more or less difficult. It may not be possible to plan all reactive work, but it is certainly possible to plan to be prepared for reactive work. It is also possible – desirable, even – to be able to see in advance those points in time when the legal department will have to say no to reactive or unplanned work. As with building a docket of cases, legal program planning involves getting aligned around the value of staff being flexible where they can, weighing opportunities according to established criteria, and saying no where they must. 29 In that sense, legal program planning does not constrain an affiliate legal department from being able to do reactive work – if anything, it eases the process of deciding how exactly to respond when such work appears.

What does program planning look like?

▶S trategies & tactics ▶ T imeline & roles/structure ▶ T eam values & norms

Step 1: Evaluating existing work Start by looking backward It may seem counterintuitive to begin a process that aims to look forward by looking backward. However, best practice for planning involves taking stock of where the legal department is, and how it got to that place, before the planning process gets underway; in turn, the best way to accomplish this is by building in a team-wide debrief at the start.

Think through the past year as a team, using a lens of pluses and deltas (“What is working and what can be improved? Why?”) to address a few questions together in depth: ▶A re there things we think went especially well or could have been done better (for example, with respect to staffing, scheduling, or internal practices)? ▶W here are we on the road to achieving last year’s goals?30 ▶A re there places where our goals and resources are misaligned, and how can we address that misalignment by adjusting goals and/or reallocating resources? ▶A re we able to be flexible and engage in important reactive work where an opening appears? ▶W here are we spending most of our time- and resourceintensive matters? Is it in one issue area or is there a balance? ▶D o we have the mix of work that we want (including active cases, cases under development, other legal advocacy, amicus practice) or would adjustments be beneficial?

Legal department goals flow naturally from affiliate goals. One important aspect of legal department planning is that it translates the affiliate’s strategic priorities and goals into legal programs, events, and activities, on their own or in conjunction with programs, events, and activities in other departments. An added benefit of utilizing a legal team-wide debrief to kick off the planning process is that it helps with team-building by creating a sense of collective buy-in. Everyone is asked to think seriously and contribute their thoughts about goals, culture, and where to spend individual and team time in the next year. The resulting decision-making and commitment of those decisions to paper in a legal department plan together comprise a richer and likely a more precise process for having been informed by input from all team members.

Map out existing commitments After the look-back, legal department planning will begin, nearly all the time, with existing dockets. Take the current docket and transpose it onto a calendar. 31 When are the deadlines (set or estimated) for discovery, disclosures, and briefing for all ongoing litigation? When are the court appearances and status conferences and oral arguments? When are the depositions and mediations and trials? This simple step of looking at all known legal work, in one place, enables the Legal Director to identify the peaks and valleys of ongoing litigation: when large swaths of the team are likely to be almost completely out of pocket (e.g., the multi-week period leading up to a major trial), and when there are lulls that can potentially be utilized to work up one or two potential cases that are currently in the hopper. It also, in one place, reveals multiple levels of complexity in active cases and the overlapping timelines for the short, medium, and long-term work. Looking at the peaks and valleys also enables the Legal Director to determine not just whether the team

can take on additional cases, but also how many and what kind of cases. It is entirely possible to look at the calendar of existing legal work and, seeing how staff capacity is affected, to realize that there may only be room to work up and bring one additional case in the next year – or, conversely, to realize that there may be many cases (such as post-consent decree monitoring cases) where nothing significant is on deck for the foreseeable future, freeing up more room for additional work than might have been expected simply from seeing a high number of cases on the docket.

Step 2: Defining the upcoming work Set goals that are aligned with affiliate priorities 32 Goal-setting has enormous importance in the planning context. In theory, any work done by any member of the legal team should be connected to a legal department goal (or multiple goals); nothing is random, and no work should be disconnected from a larder and/or related goal that the affiliate is working toward. Legal department goals flow naturally from affiliate goals. One important aspect of legal department planning is that it translates the affiliate’s strategic priorities and goals into legal programs, events, and activities, on their own or in conjunction with programs, events, and activities in other departments. For example, where an affiliate goal is to reduce racial disparities in incarceration, the legal department might set a goal such as “shift charging practices and data tracking in counties with highest racial disparities in cash bail rates within two years through initial demand letters and potential litigation.” Or where an affiliate goal is to ensure full and fair access to the vote in the next election, the legal department might set a goal such as “ensure unfettered access to mail voting by sending letters to all local election administrators identifying legal basis for expansive interpretation of signature-matching requirements no later than six months before the election.” Notably, not all legal department goals are oriented around a single litigation, or exclusively litigation, as a tactic. Instead, the tactic could be a series of cases intended to buttress an advocacy drive at the statehouse to change a law – such as, for example, where the legal department files several simultaneous habeas petitions for people unfairly held for inability to pay cash bail, alongside a legislative and advocacy effort for wider bail reform.

The respective time horizons of the work contained in the legal department’s goals should be considered during the planning process. Those time horizons will largely depend on the complexity of each overarching goal, and on the exact role of the legal department’s work relative to other departments. For example, where the legal department plays a supporting role in a time-bound effort, its time horizon may be short: fewer than six months for the legal department to approve language in a proposed ballot measure that the advocacy department will then work to get passed in an election two years away. Or where the legal department plays the primary role in a complicated effort that will likely involve litigation with multiple appellate stages, its time horizon may be long: three to four years for the legal department to receive a final decision on a large class action in criminal legal reform. Longer-term goals will necessarily be carried forward in the planning processes of subsequent years, continuing to absorb staff time and resources, so it is crucial that their likely duration be considered in the first planning iteration in which they arise.

Affiliate legal departments should always consider how to build their capacity. Identifying capacity goals and building them into the planning process is a best practice that pays dividends well into the future.

In addition to litigation and legal advocacy program goals, department capacity goals are an equally important result of planning. Especially for smaller affiliates, annual planning is an ideal opportunity to deliberately explore ways to grow both staff and program capacity. For example, the legal department could decide to spend time on capacity goals like: ▶ External relationships, such as enlarging its roster of

cooperating attorneys by organizing presentations to practitioner groups around the state, or bringing more cases and connecting with more communities in specific geographic areas where the affiliate has historically been less involved;

▶ D epartment/affiliate systems, such as strengthening intake and investigation systems, or streamlining the receipt of community input and undertaking more investigations in-house;

▶ S tructures of work, such as increasing work in particular venues and spaces that present opportunities to make important progress in civil rights and liberties case law and policies, like state courts and administrative/ adjudicative agencies at local, state, and federal levels;

▶ E DIB/culture, such as expanding the pipeline of interns and attorneys from underrepresented communities and communities of color, including by building out sustainably funded internship and fellowship programs and creating lines of communication with academic institutions in the state.

Assess capacity and utilize it effectively Goal-setting is also where an affiliate legal department can think about slotting new work into existing goals. Are there issue areas that are related to affiliate strategic priorities that the legal department has been interested in exploring? Are there affiliate strategic priorities where the legal department could expand or refine its role through a new type of legal advocacy effort, such as a pivot toward state court litigation? The comprehensive bird’s-eye view revealed by the early stages of the planning process shows where there may be opportunities in the legal department’s ability to drive even greater impact in the affiliate’s priority areas. For example, where an affiliate goal revolves around gender justice, the legal department may decide during its goal-setting process to explore the prospect of getting involved in an issue area contained within gender justice, such as pregnancy discrimination or adoption discrimination based on sexual orientation. Sometimes, though, it is prudent not to slot in any new work, keeping team members’ plates full but not overfull. Having built-in quiet periods, especially where the rest of the calendar is busy (even hectic), is good practice. Returning to the case selection first principles: the legal department has finite resources – chief among them time – and the planning process is an excellent opportunity to closely examine where the department is in terms of intentionally working toward having greater impact in the issue areas where the affiliate is most invested. 33

Assign roles At this point in the planning process the legal department has a complete board of legal and other work. It has also identified peaks in existing work that will occur over the next year, and has set out goals to continue progressing, and in some cases expanding or refining, its work toward the affiliate’s goals and priorities. Next, roles in the upcoming work should be staffed through an explicit planning lens. 34 For example, if a staff attorney is going to need capacity in six months because of an expected peak in a case, it does not make sense to staff them on a new case that is being put together from scratch and will potentially require months of time-intensive work to get the facts gathered, a co-counsel team assembled, and a

complaint filed. Viewing new work through a planning lens also helps to identify moments in time when the affiliate should consider hiring new legal department staff, whether it’s an experienced paralegal or a staff attorney who has expertise in a particular subject matter or type of litigation. Importantly, role assignment is not exclusively determined by who already has existing expertise in a given area, especially when it comes to staff attorneys. At some affiliates, staff attorneys have subject matter expertise in a particular subject area (e.g., criminalization of unhoused populations, gender-based discrimination) and/or type of litigation (e.g., public records, Section 1983 actions), which they came into the organization with or developed during their tenure, and they tend to focus on cases and other legal work in those spheres. 35 At others, staff attorneys are mainly generalists who work on a broad variety of matters at the affiliate, usually in close cooperation with cocounsel, including their colleagues at the national office. In well-run affiliate legal programs, the process of staffing new matters is used as an opportunity to mix up the staffing matrix so that team members are consistently learning new things – both substantively learning new areas of law and experientially learning new skills like supervising junior attorneys or managing complex projects. 36

Step 3: Building Team Values and Norms into the Work Find and create professional development opportunities Department planning is also a professional development planning endeavor. A regular planning process should consider the staff’s professional development goals, especially in considering new work and staffing that work. Ask all staff members – lawyers, fellows, paralegals, investigators, intake and support staff – what they want to achieve or learn in the next one to three years. For a Legal Director examining the calendar of existing litigation and weighing possibilities for new work in periods of time that allow for it, knowing what those professional development goals are could inform their decision-making process. 37 For example, there could be room in the plan for an early-career staff attorney to work on a research and litigation memo about an emerging issue area they have been advocating to get involved in.

Looking at everyone’s goals for the year, it is often the case that opportunities become visible to give staff access to different types of work, thus building their skills and making them more well-rounded in their work.

For example, with an eye toward organic professional development, the Legal Director can: ▶ Assign depositions; ▶ Encourage team members to attend conferences and trainings or to develop CLEs/presentations for such events; ▶ Identify opportunities on cases for team members to do something new in the communications or policy realm; ▶ Identify trial practice opportunities for team members who seek to build skills in oral advocacy, witness and expert preparation, and direct and cross examination (among other trial practice skills); and ▶ Delegate direct-management and management-adjacent duties to a team member who is ready for supervisory/ leadership opportunities.

Legal Directors who solicit input from their team before making critical decisions about taking on (or not taking on) additional work, as well as about how to staff and sequence that work, are fostering valuable skills in those attorneys; everyone benefits. And in many cases, legal staff who are focused on a particular issue area and have developed deep substantive knowledge and relationships in relevant impacted communities and with partners, have a comprehensive and valuable picture of that issue area. Legal Directors do well to rely on them for assistance making decisions about the mix of cases in particular issue areas and, in turn, those staff develop leadership and decision-making skills that are often overlooked compared to “hard” litigation skills.

All these things are eminently accomplishable, and substantially easier, once a Legal Director has a planning document in front of them that conveys both a bird’s-eye and specific view of what everyone in the department is doing for at least the next several months. That way, individual staff members’ professional development goals can be revisited on a regular basis (generally annually).

Model for staff that planning is a skill for all professionals to develop An important skill that all legal staff – but perhaps especially attorneys – benefit from learning from Legal Directors is how to think about curating and planning a balanced docket of legal work with an eye toward (1) their values and the affiliate’s values, (2) effectively utilizing, not overburdening, staff capacity, and (3) being aligned with affiliate priorities and responsive to the expectations of various constituencies, including the Executive Director, board, and external partners. In a nutshell: effective leadership of a legal program.

Planning is also a way to come to agreement on what the team’s values and norms are. Some affiliates that have spent a significant amount of time engaged in planning, executing, and debriefing have naturally developed shared values for their work. For example, an affiliate might use a racial equity screening tool, whether formal or informal, that asks questions about which communities will experience the greatest impact from a prospective litigation in order to weigh the possibility of taking a case, including whether the lead plaintiffs are BIPOC and/or a BIPOC-led organization. In such a situation, racial equity serves as a “strategic imperative” that informs the decision as to any new work that could be undertaken by an affiliate legal department – and thus becomes an integral component of the legal department planning process. Other examples of affiliate strategic imperatives include: “center the leadership of impacted people,” “our work should always be nonpartisan,” and “working in coalition is a tactic, not a standalone goal.” 38

Similarly, some affiliates have developed team norms that inform the planning process. Norms can be about incorporating EDIB values in all team decisions and activities; creating a culture of giving and receiving constructive feedback and approaching conflict respectfully; continuously examining internal systems to make them efficient and manageable and therefore sustainable in the long term (as opposed to stressful and burdensome for staff); ensuring that team members engage in self-care and rest; intentionally seeking input from all team members on major decisions; building in regular occasions for staff to lift up and recognize each other’s work; or any number of other things that the legal staff identify as important in order for everyone to feel included and to thrive while doing difficult and draining work. These norms can then be incorporated in legal department planning and decision-making processes.

Step 4: Finalizing and tracking the workplan Create written workplans Plans work best when they are specific, written down, contain timelines, and incentivize (and make convenient and easy) regular progress-tracking and revisions as necessary. For legal staff in particular, having a written plan helps them to envision how their day-to-day, week-to-week, month-to-month workplans point back to the affiliate’s priorities; it can be an especially helpful grounding, organizing exercise in busy periods when tight work prioritization on an individual level is crucial to moving collective work forward. Below is an example of legal department plans nested within affiliate plans, illustrating how the affiliate-wide goals contain objectives (related to both program and capacity), how those objectives consist of activities and milestones, and how those activities and milestones connect to timeline and staffing considerations.

AFFILIATE GOAL: Advance racial justice by reducing incarceration by 50% and reducing racial inequalities within the state’s criminal legal system

Objective 1: Legalization of marijuana in the state Legal Department Activity/Milestone toward Objective

Expected Completion

Primary Legal Staff

Contributing Departments

Identify legal/regulatory weaknesses in workplace drug testing, probation restrictions, racial disparities in licensing and zoning practices

May 2024

T’Challa

Policy

Research and prepare public letter for distribution to relevant local and state agencies about unconstitutional consideration of drug history in granting government benefits

September 2024

Shuri

Comms, Policy

Objective 2: Challenge racial disparities and ensure due process in the bail system Legal Department Activity/Milestone toward Objective

Expected Completion

Primary Legal Staff

Contributing Departments

Compose letter to state’s attorney requesting relevant statistics on race and ethnicity among bail requestors and recipients Connect with National (Legal & NPAD) to research and strategize on litigation and/or policy routes

May 2024

Nakia

Policy

January 2024

Okoye

Exec, Field

Develop system to review jail intakes to identify potential clients

February 2024

M’Baku

Operations

Contact heads of each county’s public defender office to get information about current challenges and set up system for regular information-sharing before litigation

March 2024

Ramonda

Policy 29

AFFILIATE GOAL: Increase capacity and BIPOC representation at the affiliate

Objective 1: Create a postgraduate legal fellowship program Legal Department Activity/Milestone toward Objective

Contributing Departments

Research language of EJW, Skadden, Marshall Motley, and other legal fellowships Reach out to career services offices at law schools in the state to collect information about minority law student organizations

March 2024

Erik

Policy

June 2024

Zuri

Exec

Explore foundations that provide funding for educational, social justice, and EDIB initiatives

Month / Year

Everett

Operations

Use tools that will help, not hinder, legal staff to track their work Tools are only useful to the extent they are used broadly and consistently. Planning does not necessarily obligate Legal Directors and their teams to dive into using a particular tool or software. Project management tools (e.g., Asana), are helpful instruments to understanding the legal department’s slate of work and to keep on top of executing various milestones on various matters, including litigation, as a group: they are there to help leaders and managers, like Legal Directors, proactively operationalize, execute, and maintain consistency in terms of how the legal department manages its workflow.

There is a lot of room to build out and finesse a planning document. Whatever the format or tool, think of the final product as a living workplan that is organized by the goals/objectives described above and contains, at a minimum, the following information for all active litigation, all multi-department and integrated matters in which the legal department has any sort of role (up to and including campaigns), and any potential and prospective legal work: ▶A list of expected steps and tasks (e.g., finalize deposition outline, draft fee motions, meet with communications team to prepare for post-lawsuit media push); ▶A t least one “assignee” who is responsible for doing or moving the task;

Expected Completion Primary Legal Staff

▶A ll relevant due dates, including for internal draftsharing and review of final and/or public-facing written product, with any mandatory intra- and cross-team approvals identified; ▶ T ags to identify related campaigns and/or associated affiliate teams, including the main departmental owners of the work, in order to designate the task as part of a multi-department effort; and ▶A list of staff in each MOCHA designation.

With this information laid out, at the conclusion of the process, the planning document will show: ▶ F or each case: upcoming deadlines and milestones,

assigned staff, and the timing and substance of any likely intersections with other departments;

▶ For each staff member: all matters to which they are

assigned, the roles in which they are assigned to work in those matters, the mix of short-, medium-, and longterm matters they are working on, the mix of issue areas they are working on, and any areas of work in which they have expressed an interest in building their skills or exercising leadership; and

▶ Representing the overall docket: where the likely peaks and valleys are for the department generally, which affiliate priorities the active cases are in, and which affiliate priorities to develop work in.

There are significant benefits to frontloading the work required to create a planning document that subsequently requires only a light touch to maintain, update, and perhaps adapt to changing needs and practices. For one thing, the planning document can serve as the basis of an agenda for regular legal department meetings, where team members go over what each person is working on and what they expect to accomplish in the next week or month (or more). It can also help inform one-on-one supervisor-supervisee agendas. The document can serve as a basis for any regular report-outs that the legal department is asked to provide – for example, at affiliate staff meetings, at the board’s request, or for use in development and fundraising materials. It can also serve as a basis to provide information for the affiliate’s budget and finance procedures, since the buckets of work housed in the document each involve predictions about expenses, such as for experts, consultants, and interpretation and translation. And finally, the less tangible but very important benefit to having all caseand docket-related information (including important timelines, assignments, and deliverables to other

affiliate departments) living in a planning document is that the information is in a place other than the inside of the Legal Director’s head. Once the planning document has been finalized and memorialized, it becomes a living document: a workplan. It should be adjusted as the work develops, stalls, changes, goes in new directions. A best practice is for the team to revisit the workplan during or after regular department meetings, so that the workplan timely reflects new deadlines (move up draft PI motion by one week), tasks changing hands (Attorney X, not Attorney Y, is now handling research on attorney fees), involvement of another affiliate department (Comms is doing a series of blog posts on our new case), or any other significant development, including litigation developments that demand or alter certain next steps. Maintaining the plan is not always easy at first; sustaining the document and committing to consulting, updating, and revisiting it, and using it to inform decisions about the legal department’s work, is as much a culture change as it is a procedural change.

S ECTION III: Integrated Advocacy ACLU affiliate legal teams have begun a pivot toward working in a more integrated fashion, across affiliate departments, to achieve more impactful organizational priorities and goals. But doing integrated work 39 – shared planning, executing, and adjusting the work over time – does not necessarily come naturally or easily. Integrated advocacy is not a box to check off; it is a framework for advancing a strategic approach to achieve priorities and goals by maximizing ACLU capacities, including legal action, political and legislative advocacy, media advocacy, storytelling, and organizing. Successful integrated advocacy work requires time, care, and intentionality, including on the part of affiliate legal teams.

Over time, affiliate program staff grew and became increasingly professionalized. Other distinct capacities in affiliates developed, beginning with legislative programs, usually in the form of a staff member who functioned as a chief lobbyist or policy expert. The expertise in that program was in issue-spotting potential legislation and determining where the ACLU needed to get involved, whether through providing testimony or considering the ACLU’s biggest cudgel: litigation. The legislative program was often most active in the state legislature, and sometimes it worked with municipalities and government agencies in order to advance affiliate issues and shape emerging policy.

A little bit of affiliate history… Given the size of many ACLU affiliates, it may be hard to imagine that many affiliates were ever tiny organizations with few staff, but they were. Some affiliates were essentially small litigation shops, where complaints came in through an intake system managed by a volunteer and then led to a lawsuit handled by a Legal Director, often managed by or with the assistance of a cooperating attorney; others were more like litigation coordination clearinghouses, bringing in cooperating and pro bono counsel instead of handling litigation in-house. Another common affiliate staffing setup was an Executive Director, a lawyer (or a small legal staff), and an administrative staff member doing everything as a small team, from lobbying and giving testimony to bringing lawsuits to organizing public events and issuing public-facing communications, where the Executive Director typically held the coalition relationships. There was often limited capacity to plan proactive or scaled work. This early period was characterized by a governance structure that was weighted towards a strong oversight role for the board of directors.40 Most affiliate boards were comprised primarily of lawyers who joined because they wanted to have a direct role in program. Some affiliate bylaws and policies required that the board approve every case and, in some affiliates, the bylaws empowered volunteers to run their own legal programs through chapters and often without any requirement that litigation decisions be approved by staff. 32

The next affiliate capacity to become professionalized was communications. Staff members were hired to be responsible for communications with donors; publishing newsletters and email alerts for members and supporters; educating and engaging the public about civil rights and liberties issues; and connecting staff members who had legal or policy expertise with reporters. Importantly, the development of communications departments meant that affiliate communications work began to inhabit a lane of its own, breaking out of a now-archaic service model in which the communications team solely promoted the affiliate’s work in the legal and policy arenas, and instead turning to generating proactive, increasingly digital and online strategic communications advocacy to move the ball forward on affiliate program goals. Most recently, many affiliates have begun building scaled organizing and other power-building programs, and experimenting with redesigned political departments that include some form of a field or political operation. The motivation is straightforward: having a strong, sophisticated lobbying and litigation shop is a boon but has increasingly become insufficient

to achieve ACLU aims. Some affiliates have hired organizers who focus on building volunteer leadership, moving people to action in support of organizational goals, and pressuring decision-makers to act in support of civil rights and liberties. At affiliates with organizing programs, these staff work to build power and fight for change in issue areas where community power, hand in hand with other actions (including litigation or the threat of litigation), has a crucial role in achieving affiliate goals. The ACLU’s path toward building inter-connected, multi-department affiliates with multiple priority areas has not been frictionless; there have been growing pains, and to some extent the organization as a whole is still feeling those pains. However, this shift has compelled affiliates to consider a set of basic, interrelated questions underlying steady growth and that hint at the need for an integrated approach: What goals are we, as an affiliate, trying to achieve? To whom are we accountable and who is most harmed by systems we seek to challenge? Are we synched up on the strategies and tools we need to use to achieve those goals?

A hard truth about culture change There is a perception that legal departments have been the most challenging to bring into the fold of integrated advocacy. For every integrated advocacy story in which a legal department closely partnered with other departments and was integral in achieving a shared goal, there is a story about a legal department that was out of sync with other departments, making decisions on its own or failing to secure input on an aspect of the legal work that then made other departments’ work more complicated. The perception that legal departments are challenging partners in integrated advocacy efforts is based in reality, at least to some extent. For one thing, lawyers

can legitimately struggle with new commitments given the resources required to navigate the litigation of some cases over many years. More broadly, the legal system is inherently a conservative institution, relying on hierarchical structures (including courts themselves), the rule of law, and the incrementalism that flows from those structures and parameters; as such, lawyers tend to have some institutional leanings, with strong thoughts about how work should be done – in a particular and structured fashion. Lawyers navigating the legal system have to think within formal constraints that define it, including linear but sometimes unpredictable case timelines and milestones, ethical duties of representation, and how their decision-making affects and will be interpreted by parties connected to the case, including opposing counsel and judges. Considerations of professional ethics often prohibit lawyers from consulting stakeholders other than their clients and legal team members. Their hesitation can be grounded in concrete and legitimate professional responsibilities, not solely in rigid “lawyer/legal culture” or other overbroad generalizations. This institutional bent can be in tension with the priorities of other programs, such as organizing, whose work is necessarily more open, having to be responsive and accountable to more external actors and to rapidly changing facts on the ground. The contrast can result in a sort of cultural and interpersonal challenge where, if lawyers are not in alignment with their colleagues in other departments, they can default to a transactional relationship instead of an intentional partnership with them. Different departments, each with their professional expertise, have different cultures and ways of operating, and the project of integrated advocacy is to find more and better ways to work together, not to exactly mirror one another or to alter or criticize the different ways that they work.

In recent years, more legal teams have been able to accommodate and appreciate the value of integrated advocacy, for their own programs and for the larger organizational mission. The key is an orientation change among lawyers, one that looks roughly as follows:

1 

T here are limits to what litigation can achieve, due to a multitude of factors, such as substantial procedural hurdles to and during litigation, the substantive limits of existing law and constitutional doctrine, and the sometimes narrow or inadequate scope of available remedies at law and in equity compared to what the ACLU wishes to achieve;

2 

The limits of litigation are especially apparent in states where the courts are openly hostile and/ or the tide of terrible legislation is constant, such that finding alternate pathways to victory is essential;41

Even when litigation is nominally successful, it can be a pyrrhic victory when, for example, a legislature responds with an even worse law, or the court decision has negative ancillary effects in some crucial area of procedure or substance;

3 

The prospect of large-scale solutions via changes in the law through litigation is limited, and litigation is therefore not the only answer to abuses of civil rights and liberties or to the overarching goal of creating laws and policies in service of a more just and free society; and

4 

Legal departments benefit from strong partnerships across affiliate capacities, which relieve the pressure on them to obtain court victories and enable them to contribute to other strategies to address and attack pressing issues.

While in some circumstances lawsuits are the best and only tool for impact, there are other ways to win meaningful, sustainable change.

Litigation can be a secondary tool in an integrated advocacy program where a lawsuit has a catalytic effect because it’s positioned as one of the initial and major steps in an integrated effort. For example, this is the case when a legal action is specifically meant to draw public attention to an issue and galvanize pressure on legislators or relevant government officials. Other times, legal action is not likely to be impactful, including where direct engagement with policymakers is viable and litigation might alienate them, or where the courts are so hostile to the ACLU’s claims that the chances of the litigation’s success are too slim or it does not provide a platform for fruitful communications or organizing efforts. Overall, the basic premise is that neither litigation nor any other affiliate capacity is the tool nor the only tool for change. The promise, privilege, and responsibility of the ACLU is to organize our various resources, capacities, and tools in the sequence and at the levels best calibrated for the impact we seek to have. Modeling this orientation change at the leadership level and emphasizing a consistent focus on the big picture are important aspects of socializing an integrated advocacy approach. Ultimately, most lawyers embrace integrated advocacy once they learn what can be accomplished from widening their aperture beyond a tight focus on litigation. At that point, the question switches to one of best practices for operationalization.

It’s a lens, not a box to check Many affiliate legal departments have long been applying some of the precepts of integrated advocacy even if it is not explicitly named as such. No legal department is ever completely walled off from other departments. There are ways to work across teams at an affiliate on a casual basis. For example, the legal and communications departments can work together to write blog updates on litigation and do media work around a case; the legal and organizing teams can do joint outreach to impacted communities; the legal and advocacy departments can work together to draft model policies and do rapid analyses of bills during legislative sessions.42 But now, these discussions and decisions happen earlier in the timeline and become more deliberate, as affiliate capacity and an attendant imperative of collaboration and shared strategies – designing, adopting, and executing them for overall impact – grows.

Litigation can be a secondary tool in an integrated advocacy program where a lawsuit has a catalytic effect because it’s positioned as one of the initial and major steps in an integrated effort. Not every matter lends itself to an integrated advocacy approach. For example, a legal department’s docket does not suddenly become a collection of group projects in this model. Integrated advocacy is a lens and approach to work, not a box to check. There remain plenty of matters in which the legal department moves its work forward without a concomitant policy/organizing angle or a proactive communications/fundraising strategy, simply because those angles are not necessary or beneficial to the work. The opposite may happen as well, where the legal department declines a role in an integrated campaign because there is no legal angle to be had or where there is extremely limited capacity in the department, and the likelihood of success with a political and communications strategy, without legal action, is higher.43 Integrated advocacy does not mean the legal department loses authority to say no to things, nor that it loses all control over its docket.

One opportunity within an integrated advocacy model is that some issues may offer new possibilities because they become an integrated effort. For example, if a legal department is unsure about bringing a potential case, consultation with and input from colleagues in other departments can make all the difference. Affiliatewide commitment could sway the legal department decisively to move forward, once it knows the case will be bolstered by a coordinated storytelling or legislative push and that the strategic opportunities of the litigation, outside of court, make the filing of the case worthwhile even if the chances of success are low or the ultimate legal outcome is unlikely to be significant on its own. On the other hand, dissuasion from colleagues on other teams may lead the legal department to consider not pursuing a case, confident in their and their colleagues’ judgment that a case is not only unlikely to be successful on the legal merits, but also unlikely to generate partner or supporter energy,44 support legislative change, advance a strategic narrative, or result in another constructive contribution to the affiliate’s goals. The prospect of integrated advocacy can yield richer, high-level strategic analysis and decision-making, and act as a check on sometimes ingrained lawyerly instincts to aggressively litigate wherever and whenever possible.

Practice Note: Teaming up during the legislative session It can be especially fruitful for legal and advocacy departments to have a plan for the legislative session. While in the past, legal-policy interactions may often have been ad hoc – for example, with lawyers glancing at proposed bills on request – the approach is now more collaborative, defined, and coordinated. Some affiliates work within a planning model in which, before the start of the legislative session, the legal and advocacy departments jointly create a living document that identifies priorities for the session and what each team is doing to prepare for developments on particular issues (e.g., reproductive rights, death penalty), as well as a priority point person. This means that, during each day of the session and each time there is a major development (such as the introduction of a bill the affiliate intends to challenge or support), the affiliate has a plan in place, with key roles

Operationalizing: Must-Dos for Effective Collaboration in an Integrated Advocacy Project An important goal for affiliates that engage effectively in integrated advocacy is to achieve institutional alignment with a long-term vision that is flexible to new threats and opportunities. Achieving that goal requires developing and rolling out joint litigation, legislative, and communications/storytelling strategies with care and intention. For their part, legal staff should fully engage in that development process.

This section contains best practices for operationalization of integrated planning and strategy development in a few key areas: ▶ G oal-setting and alignment ▶ P lanning ▶ E xecution ▶ D ecision-making ▶ I nternal accountability

identified, for what the response will be and who needs to do what in order to mount that response. For proactive priorities, where an affiliate is working with legislators, the affiliate has a plan in place that identifies major developments, such as drafting the bill, organizing its rollout, and launching a campaign around it. The overall goal is to have a plan and strategy in place, as well as processes for addressing fastmoving developments in the affiliate’s areas of interest, and empowering designated staff members to make decisions in real time, where appropriate. The end result is the building of a culture in which affiliate staff feel that they are making the most out of the affiliate’s various capacities to maximize impact in shaping legislation in a specific and coordinated fashion.

Get aligned across departments The hallmark of integrated advocacy at the affiliate level is defining a shared goal. What exact outcome are we collectively working towards? The tighter and more specific the goal, the better: 45 “Repeal old abortion ban that is still on the books in the next legislative session”; “Obtain compassionate release for 50 percent of elderly, infirm individuals in state prisons by Year X”; “Create statewide right to minimum classroom assistance for disabled students by Year Y.” Goals are about pointing to a specific objective so that a cross-department team can figure out shared strategy: determining which of the tools at its disposal are best calibrated and in what sequence to reach the outcome, making a shared plan and holding each other accountable to that plan, and making shared decisions on when to change or pivot from the plan, on the way toward the desired outcome.46

At affiliates with well-developed integrated advocacy practices, a significant consideration at the outset of integrated advocacy planning is how resourceintensive particular tactics and strategies, as carried out by different departments, will be. Affiliate legal staff can start by mapping out the relative resource intensiveness, along with their colleagues in other departments, of tactics and strategies such as: ▶ Know Your Rights trainings ▶ Community meetings ▶ Amicus briefs ▶ Administrative advocacy ▶ Public education (including through reports) ▶ Public records requests ▶ Changing or defeating legislation ▶R epresenting community partners as organizational plaintiffs ▶B ringing cases in a coordinated effort with other types of resource-intensive advocacy

Make a plan, lean in to process Where affiliates do well at integrated advocacy, it is largely due to the fact that they lean hard into systems and process – the day-to-day, week-to-week, month-tomonth approach to alignment and collaboration once an integrated effort is underway. Typically, the more ambitious and involved the goal, and the more time it is likely to entail, the more planning should be done ahead of time.

Creating a shared plan means answering a series of interrelated questions 47: ▶W hat is our goal? ▶W ho or what has the power to do what we want? ▶W ho or what do we need to influence/pressure them? ▶W hat is our path to victory48 and on what timeline? ▶W hich tools will we need to use? ▶ I n what sequence will those tools be used? ▶D o we have role clarity and a decision-making structure? Who is lead on each element of the plan? Which decisions belong with the Executive Director? ▶W hat resources are required? Do we need to calibrate any of them (e.g., change a staff member’s focus area, find a litigation partner) to prepare?

▶H ow do we ensure that we are doing what we are supposed to do, not in competition with each other? ▶W hat is our internal communications plan to keep our work moving forward? How often do we need to meet, and who needs to meet? How else are we keeping each other informed? ▶ W hat is the shared tool that houses our objectives and strategy and that tracks progress (e.g., Asana)? How are we keeping to the timeline and holding each other accountable? ▶ H ow will we make the necessary adjustments when circumstances mean we have to pivot, or adjust the plan and/or timeline?

Educate colleagues in other departments All legal work, not just litigation, involves rules, as well as ethical and professional risks. If litigation is part of the integrated effort, a best practice is to ensure that colleagues in other departments know a few critical things ahead of time: ▶W hat’s the timeline and what are major junctures? Affiliate lawyers should not assume everyone at the affiliate is familiar with the trajectory of litigation, including the unpredictable ebbs and flows, the way things seem to happen slowly and then all at once, and the way things can become derailed in a completely unforeseeable way. Instead, legal staff should take the time to explain the major junctures of litigation and the goal of each juncture (e.g., a motion for class certification or summary judgment). Highlight the fact that there can be stretches of time where nothing at all is happening in the case, and that some chapters in a case take a long time without appearing to yield anything for non-legal teams to work on or take note of (such as the discovery phase). Name the fact that some aspects of the case might appear to go our way before being reversed at the appellate level, a reality which affects nearly every decision made at the trial court level. Explain the currents that are in play where a case approaches the settlement-or-trial fork in the road. Making sure affiliate colleagues know that clients can be a major source of unexpected twists and turns is

important. In a lawsuit, the lawyers owe an ethical duty to the client – not to the affiliate’s goals or plans – so, concretely, if a client for whom we sued to obtain injunctive relief and compensation is willing to accept a money-only settlement, that is the client’s decision and not one that the lawyers can make even if the plan was for a longer litigation process or a focus on a bigger affiliate goal. The same duty constrains the lawyers’ actions if a client who was excited about press at the outset of a case confronts personal crises or has a change of heart in the middle of the case that later makes interaction with media either detrimental to the client’s litigation position or no longer something the client wants to take part in. The more cross-department understanding there is of the basic elements of litigation – and of real limits to predictions about how it will play out – the better off and more prepared everyone is.

▶ W hat information can be shared and who is talking to whom? Affiliate lawyers should explain why there are some spaces, documents, and communications that are lawyers-only. It doesn’t have to be a hornbook on the ethical duty of confidentiality and attorney-client privilege, but it should be enough of a primer to head off any confusion, disappointment, or irritation that doors are not wide open to every aspect of the litigation and that the lawyers, in particular, have to exert some control in order to safeguard the case, the client, and non-legal staff.

All affiliate lawyers should be familiar enough with the jurisdiction’s privilege doctrines – since attorney-client privilege and work-product privilege are different in scope – that the department as a whole can make wise decisions about what it chooses to share and not share with colleagues. This familiarity includes any relevant differences between attorney-client and work product privileges. Sometimes information might be shielded under one but not the other, and sometimes at the case-selection or plaintiff-search stage, that case’s circumstances can be described in the kind of general terms that wouldn’t reveal client confidences at all.

Confidentiality is a lesson that never gets old and never quite sticks; it should be repeated over and over. There is no single settled answer that applies nationwide, and some jurisdictions have some useful case law on privilege while others have very little.49 Even where there is case law, the privilege issues in those cases involve for-profit parties or individuals who have reputational and business interests beyond the litigation, unlike the ACLU, making their holdings and takeaways not cleanly applicable to our work. But generally, the privilege question is not an easy one, as existing privilege cases tend to understand the giving of legal advice to be housed in a narrower category than

how the ACLU thinks of integrated advocacy – with the latter being that communications with the public and organizing within communities are essential parts of our legal strategy. There is a lawyerly tendency to overthink the risks associated with the privilege aspects of integrated advocacy. Practicing heightened sensitivity and caution regarding privilege is a necessary aspect of working closely with other departments, of course; locking out colleagues across the board is not. It is useful to think of it like a sliding scale rather than a duo of absolutes (share everything; share nothing). Lawyers can usually share certain information with their non-lawyer colleagues in other departments when those colleagues know and agree that they must keep the information confidential. Ultimately, whatever information is shared, it’s important to remind non-lawyer colleagues, in turn, about their responsibilities with regard to the information. Confidentiality is a lesson that never gets old and never quite sticks; it should be repeated over and over.

▶ W ho makes decisions? Educating non-lawyer colleagues about decisionmaking in cases is crucial. Colleagues should understand why lawyers are doing share-outs and welcoming input but ultimately making some of the litigation-related decisions solely within the legal team, from the big-picture ones (like whether to file a case at all, and whether to appeal) to the seemingly small ones (like the language that should be used to advance a particular argument, particularly in public settings). And the why is about many things: fidelity to the client’s interests, ethical and professional obligations to the court (including dynamics with individual judges assigned to cases), protecting against the possibility that their colleagues in other departments become caught up in the discovery process. This conversation can be awkward, even in a collegial environment, but is a necessary one to avoid larger conflicts down the road.

Communicate D eciding on an intentional approach to, and cadence

for, meetings and internal communications across teams in order to implement a shared plan creates a foundation for strong integrated advocacy. Organized

and well-run meetings are critical to mapping out the discrete steps: the projects, tactics, events/milestones, metrics, and solutions to obstacles faced along the way. Some components of execution will be taken by one team, while others will be executed collaboratively. Integrated work requires transparency and deliberate, consistent communication. Ultimately, the key is having trust, good planning, and strong implementation and internal accountability systems. Consistent communication, in whatever forms keep the team members connected to each other and accountable to the work, is a crucial component of any integrated effort, but constant meetings are not always necessary. Rather, having well-run meetings with clear agendas, decision points, and action items, and where participants come prepared, can often be effective in reducing the number of meetings needed overall. Further, it’s possible to have fewer meetings if the team is using a project management system or other tool that houses objectives and progress and enables effective asynchronous communication (e.g., Asana). Over time, the various back-and-forths, solicitations of input, and conversations about shared strategy build a culture of trust between department teams, so that the conflicts that can occur where an affiliate is less practiced in integrated advocacy are resolved faster or prevented from happening at all.

Meeting structures and schedules Meetings are not only a necessary aspect of legal and affiliate practice, they are also an important opportunity to discover new avenues of integrated advocacy work. Meetings are where colleagues share, ask questions, brainstorm, challenge assumptions, workshop challenges, make decisions, and offer or solicit assistance and support. The exact number and type of meetings that will best serve varied interests across the affiliate differ by its size and strategic priorities, among other things. But there are a few regular meetings, and specific actions to be engaged in during those meetings, that serve as a good baseline to advance toward stronger integrated advocacy as a matter of both substance and culture.

▶ A ll-staff meetings: At regular intervals, all staff gather

to hear important organizational or internal updates, to emphasize and realign on affiliate priorities, to share updates and notes of appreciation about one another’s work, and to build community.

▶ L eadership meetings: Department heads meet

regularly to share topline share-outs and for discussion of any challenges/controversies/issues everyone needs to be read in to, with a focus on shared affiliate priorities. Leadership meetings can vary in frequency – some affiliates have them twice a week, some twice a month – based on whatever best serves to sustain cross-department conversation.

▶ Program (or department liaison / cross-departmental) meetings, such as legal-policy or legalcommunications: These meetings, best held biweekly or monthly, offer more time to delve into details of agenda items that the teams are already working on together or hope to work on together. They are natural spaces for legal teams to help their colleagues in other departments understand their work (including how they work), and vice versa.

▶ Project / campaign meetings, for staff working on specific projects or integrated campaigns: These can be weekly or biweekly, with a tight agenda of core items and room to discuss whatever topic, development/update, or challenge is most pressing at that time, so the team can align on next steps and keep things moving. Example agenda items could include: status of all objectives, sharing out of new communications/messaging, update on coalition

participation and new asks or information from coalition partners, report-outs from each department that owed some kind of work or progress since the last meeting, updates on new work and commitments that have to be added to the team workplan, and key decisions that need to be made.50 This list does not include regular supervisory meetings, such as check-ins with staff attorneys, though such meetings are natural opportunities/spaces to encourage, troubleshoot, and build accountability toward integrated programs and projects. Establishing the right meeting culture is difficult. One important point to keep in mind that each meeting should have a clear overall purpose and strong facilitation toward it. Some meetings are fine and appropriate for simple share-outs. But make sure there is room in the meeting schedule, as needed, for low-stakes interpersonal check-ins, as well as for deep dives and strategizing sessions where everyone in the meeting works to train collective power on one objective, one problem that needs to be solved.

Executive Director Tips:

How do you facilitate integrated advocacy work? The Executive Director has a critical role to play in ensuring teams are bought into integrated advocacy from the beginning – before planning begins in earnest, before a stitch of work is done on an integrated advocacy effort. The culture around integrated advocacy begins at the top, and a commitment to working effectively in, and prioritizing the time and resources for, an integrated framework should be led and modeled by the Executive Director. Organizational leadership has a keyrole to play in demonstrating commitment to prioritization, transparency, coordination, and alignment within integrated work.

PRIORITIES & GOALS Do we all know what the goal is? Do we all know what success looks like? How and when can we uplift and model prioritization and goal clarity?

PLANNING Do we all know what we’re responsible for and how we’ll know whether we are making progress toward our shared goal? Does our strategy make sense for accomplishing our goal? How can we incentivize and show that we value the time and discipline it takes to do effective planning?

PROCESS Do we all know how and when we’re checking in with each other? How can we uplift and reward strong internal communication and accountability?

EXECUTION, ACCOUNTABILITY & PROBLEM-SOLVING Do we all know when we need to take a step back, take stock, and perhaps reconfigure an aspect of the plan?

The Executive Director can facilitate and support integrated advocacy work by ensuring that department leaders identify and align on, then effectively prioritize and execute, shared strategies, with an eye on setting the right affiliate-wide goals for an integrated advocacy approach. They do this by: ▶ participating in goal-setting processes; ▶m odeling active engagement in meetings and internal communications; ▶ i dentifying external opportunities to take advantage of the affiliate’s particular position and strengths in the wider civil rights ecosystem of the state; ▶ g iving praise and/or feedback in order to encourage buy-in and participation; ▶p roactively resolving any emerging conflict between departments, including where deliverables may not be on track or parts of the organization are not executing; and ▶ i dentifying internal opportunities for organizational growth and capacity-building (e.g., by focusing on sustainable organizational growth and on contributing to staff professional development). In recent years, some Executive Directors have created a new position – between the Executive Director and program department directors – who oversees programs with the goal of designing and implementing systems to facilitate a coordinated, integrated approach and keeping an eye on the big-picture strategy across issue areas and across all the affiliate’s work. The position has a variety of names: Integrated Advocacy Director, Program & Strategy Director, and, at some affiliates, simply Deputy Director or Program Director. While it may not be the right fit for every affiliate, the primary benefit of such a position is that the Executive Director may not have the time to facilitate in an intensely hands-on way: participating in key meetings, reviewing advocacy letters, and helping to design and manage the collaborations among departments. Instead, the integrated advocacy director minds the store when it comes to legal, communications, political advocacy, as well as other programs, and reports to the Executive Director.

Organizational leadership has a key role to play in demonstrating commitment to prioritization, transparency, coordination, and alignment within integrated work. 41

Section IV: Co-counsel Relationships Depending on the size and capacity of an affiliate legal department, only a small portion of its work should consist of cases where affiliate staff are managing litigation totally on their own. Most affiliates work with co-counsel 51 frequently. As a general matter, cocounsel can be a critical force-multiplier, often helping to leverage limited capacity and expanding the overall impact of the affiliate legal program.

A note on terminology

All of the processes described in this section take time. Building co-counsel networks, figuring out what works in co-counsel relationships, and managing those relationships are processes that comprise much trial and error, and no Legal Director gets it right the first time. The points about best practices with firms apply broadly to large and medium firms in addition to solo practitioners, small and local firms, and nonprofit cocounsel as well. How do Legal Directors know which role co-counsel should have and what they should ask for? Experience and history. A Legal Director doesn’t know how co-counsel will be until they see how the work flows and the caliber of the work produced. Once they are confident about a particular co-counsel, they can return for subsequent matters or larger engagements if the partnership makes sense.

In this section, co-counsel and cooperating counsel will be referred to collectively as “co-counsel” for brevity. For many affiliates there are important distinctions. Where the affiliate brings a case, makes key decisions, and does the bulk of the substantive work (e.g., drafting the complaint and writing dispositive motions), other counsel on the case are, quite literally, cooperating counsel; the role is a limited one. And even where cooperating counsel does the bulk of the substantive work, they are doing so under the auspices of the ACLU – as though they are ACLU attorneys, but they donate their time and often their firm’s resources to the case. In contrast, where the litigation proceeds as more of an equal partnership – even where only one organization has final decision-making authority in one or more areas – other counsel on the case are co-counsel and treated as partners on equal footing; the case is not exclusively an ACLU case. Similarly, when the ACLU works with other non-profit legal organizations to litigate a case, this is generally described as a co-counsel relationship.

When to think about taking on co-counsel?

When should Legal Directors think about supplementing the in-house team, and what considerations should be top of mind? Some affiliates lean toward all the time, others towards almost never. Affiliates shift between the approaches over time, though most tend to stay somewhere in the middle.

When the team needs additional resources for a fact-intensive case, to help grow the docket, or provide specific expertise 100% of cases should involve co-counsel

Only in the most trying circumstances, e.g. where the case will likely entail high expenses

ALWAYS: Some legal departments have co-counsel on all of their cases; they start with the presumption that they will have co-counsel. An upside of this approach is that it enables the legal department to have a larger and more diverse docket than it might without cocounsel. Another practical upside is that when staff attorneys are briefly unavailable or pulled onto other matters, the Legal Director is not forced to step in and play a significant role in the litigation because there are built-in partners to share the workload who are already familiar with the case. Particularly for small affiliates, having co-counsel lined up is a significant part of case selection; they think very carefully and critically about taking on cases without co-counsel. But there are some notable downsides as well. For one thing, with co-counsel, staff attorneys may get less direct experience and develop litigation skills more slowly than they might otherwise. Gradual development is not, in and of itself, a bad thing; however, over time, fewer attorneys may be positioned to grow into supervisory capability and complex litigation management without more hands-on experience,

including trial practice. In addition, having co-counsel on cases can lead to tension and generate challenges, as described in later sections. Even with excellent co-counsel, there are quality-control and relationshipmanagement challenges involved. All this means that the more cases are handled with co-counsel, the more the very real benefits may sometimes be offset by other, less beneficial considerations.

SOMETIMES/RARELY: Some affiliates prefer to use co-counsel more sparingly, and generally come to a decision based on the factors described in the next section. This makes sense for small and smallto-medium affiliates, where the work of finding co-counsel, maintaining those relationships, and performing quality control can be a significant lift for an already overstretched team. Some affiliates prefer using co-counsel where their needs are clear and definable and there are already strong and tested relationships of trust with the prospective co-counsel.

This timeline of steps below describes the shaping of the co-counsel relationship from inception through execution of the work:

Step 1: What does the case and the team need?

Money An incipient case is likely to entail high expenses (e.g., experts, numerous depositions, travel, complicated document management).

Local Expertise The case needs someone who understands local idiosyncrasies or holds local relationships, including how to file, finding process servers, knowing the right people to speak with at a court, and important information about opposing counsel or the assigned judge.

Subject Matter Expertise The case requires expertise on the substantive law, or the nuts and bolts of the particular kind of litigation at hand (e.g., election law, claims under the APA), or knowledge about techniques specific to an area of law (e.g., financial or statistical analysis). The affiliate legal team brings the expertise in bread and butter constitutional law issues but needs a specific and specialized substantive supplement.

Strength in Numbers The litigation is likely to be lengthy and potentially complicated, and it’s likely many staff will be needed on the case. Relatedly, it may be necessary to draw on a big team for peaks in the case -- for example, the initial push for a preliminary injunction or a protracted motion practice fight.

Intimidation Factor Co-counsel who have developed special skills in the litigation process (e.g., settlement negotiation and trials) can be invaluable. After the affiliate team does the initial briefing, co-counsel can come in to help with negotiating settlement terms, including by maximizing damages, fees, and the length of the consent decree (if applicable). They can also generally help with settlement by putting the defense on notice that going to trial will be a challenging or costly effort.

Strengthening Alliances Particularly in the case of co-counseling with other nonprofits, there is a political element of joining forces to prevent duplicative or competing work; the affiliate team may wish to strengthen its relationships in a given issue area or geography rather than racing others to the courthouse. And partners may have other important things to contribute beyond litigation capacity, including relationships and credibility in the community.

Discovery Discovery can be incredibly expensive, complicated, and time-consuming. It helps to have a partner that can provide people, time, and fluency with technological resources like discovery platforms. They can also contribute to any discovery-specific motion practice, which requires research skills and deep familiarity with the documents. 44

Step 2: Whom to reach out to and how? Co-counsel networks Affiliate Legal Directors should develop a list of goto co-counsel or potential co-counsel, both tested or untested. Some affiliates have an embarrassment of riches, including access to a plethora of established national law firms with long rosters of associates who can be staffed on ACLU matters. But in a state where the bar is very small, and/or where most of the qualified law firms are conflicted out because they regularly work with state agencies like an Attorney General’s office, the legal department can branch out to firms in neighboring states – though always with a courtesy heads-up to the Legal Director in that state. It can also eschew large firms outside the state and find small-to-medium firms inside their own state that are more likely to be in mission-oriented alignment with the ACLU and can bring their own capacity and resources to bear. One effective way to make connections with firms is to offer to send ACLU attorneys to do informal, “lunch and learn”-type presentations where they describe the affiliate’s high-profile cases and priority issue areas. The associate and junior-attorney corps at firms tend to enjoy these presentations and it makes them excited about the prospect of their firms partnering with the ACLU. No matter the affiliate’s size or makeup of its legal ecosystem, it is a best practice to develop a network of

co-counsel, which becomes easier over time where the legal department has already established relationships in the legal and nonprofit communities. The Legal Director should have an understanding of who the major players are, and the areas in which they work and have expertise. For example, when it comes to the possibility of developing a case in an obscure or emerging criminal justice issue, the Legal Director may already know they want to approach the local public defender service to explore the issue further and potentially enter a cocounsel relationship on the eventual case. Or they may know they need a large team for a complex case, and opt to take on multiple co-counsel, such as a team from a large law firm plus a local cooperating attorney who can help out with practical issues on the ground, like filing, service, and the inside track on opposing counsel.

Timeline, efficiency, process Recruiting co-counsel for a time-pressing and initially fast-moving case can be complicated, so affiliate legal programs should think carefully about taking on cocounsel where speed is imperative. This is the case where, for example, the goal is to file an enforcement action or seek a preliminary injunction within days, not weeks. Quick recruitment can be advantageous where the firm’s partners are aware of the tight timeline, and they commit to clearing administrative hurdles (like conflict checks) and convening a great team on an expedited schedule. At the time they commit as co-counsel, they should know what the

ask and timeline are, and confirm they are ready to go. In other scenarios, firms cannot complete their internal processes quickly enough for an affiliate to lay litigation groundwork in the most time-pressing matters. And even if the firm can clear that hurdle quickly, the risk increases when there is not enough time to properly hammer out expectations and set shared ground rules and roles, which can prove fatal to a co-counsel relationship, whether in the earliest or later stages of the litigation. Where a Legal Director has decided to bring in cocounsel, it helps build the relationship to do so on the early side, when the case is still in development. Even then, it is important that the affiliate legal staff has done sufficient fact-gathering and preliminary research on potential causes of action; they should be able to present something for co-counsel to hook into, as things run more smoothly if there is already a rough game plan for the litigation by the time co-counsel is on board. 52 For complex cases that are not necessarily time-pressing, it is a best practice to have the facts and preliminary research in a fully baked legal memo, perhaps with an accompanying one-page primer for easy reading. Having this in hand when approaching a potential co-counsel is a game-changer; they have everything they need to review in order to make a decision, and both sides are fully prepared for a faceto-face meeting or to jump straight into the work once a co-counsel agreement is in place. When asking potential co-counsel to join, affiliates should try to avoid blanketing multiple firms with the same opportunity. All firms have to do some legwork to figure out whether they can participate (i.e., conflict checks, gauging partner/associate interest and availability) and no one wants to waste their time doing this legwork if the affiliate ends up working with another firm that accepts first. Time permitting, it is best to approach one firm at a time, make the pitch, and set a deadline for signing on. If the affiliate team is pressed for time and finds itself having to blanket multiple firms simultaneously, it should be up front about it being a multiple-ask situation so that firms can properly make preliminary decisions about whether they want to “bid” on the case to begin with.

Step 3: Setting expectations for the co-counsel relationship Written agreements 53 To the largest extent possible, the affiliate and cocounsel teams should be on the same page about who is doing what, by when, and with whose approval. These agreements are typically found in a co-counsel agreement. It is far better to work these things out before a case is filed, as delaying resolution to some of these questions can harm relationships.

It is essential that co-counsel understand certain aspects of working with the ACLU that are not negotiable and any non-negotiable ground rules should be raised early, ideally as part of the initial ask to cocounsel. As such, all co-counsel relationships should be memorialized in a co-counsel agreement that is as specific as possible. These agreements should include language on: ▶ L ead counsel and decision-making:54 Who is lead counsel (i.e., who is “primarily responsible for conducting the litigation” on behalf of the client, versus whether the ACLU and co-counsel are “jointly responsible”), how decision-making processes operate (consensus, where possible), how final decisions are guided by the client’s best interests but ultimately in the hands of ACLU or co-counsel; ▶ Conduct of litigation: Who drafts pleadings, briefs, and other material documents and when must they be shared; who handles discovery requests, depositions, and oral arguments; and who will be signatories on case documents; ▶ Internal communications: How to keep members of the litigation team informed of what developments and when, including when consent is required, and agreeing to maintain privilege and confidentiality consistent with ethical, legal, and professional obligations; ▶ Fees:55 Who can seek them, prohibitions on contingency fees, requirements to keep contemporaneous time records, clarifying that fee awards first go to reimburse the affiliate for expenses (minus salaries); ▶ E xpenses: How each co-counsel handles their own internal expenses (legal work, travel, lodging, overhead/ administrative like postage and phones), and then who pays or how to split litigation costs (depositions, court reporters, transcripts);

▶ Communications and public relations: Whether there is joint responsibility for media work or whether the affiliate will exclusively handle it, whether final authority lies with the affiliate to make decisions about media and press strategy, whether each co-counsel gets a quote in any public-facing press; and ▶ S ettlement: How the client’s wishes control with input/ advisement from the litigation team, settlement funds remaining after client award go to reimburse the affiliate and then divided as X/Y percentage.

The process – and relative ease or difficulty – of hammering out these terms generally depends on both teams’ respective capacity and experience levels. Cocounsel might say they only want to handle one or two things (e.g., mediation, or trial preparation if it comes to that) but none (or very little) of the heavy lifting at the front end of the case. Great collaborations can result if that aligns with what the affiliate team wants and needs. Conversely, for some cases the affiliate team may want to proactively seek co-counsel that can run with the case, while the affiliate handles bigpicture guidance, communications, and overall strategy. A best practice is for the affiliate to tell co-counsel exactly what is needed and to ask for clear answers on whether they can engage accordingly.

Team composition One early priority is to clearly communicate expectations that co-counsel put together a capable team whose members are aware of probable time commitments. Law firm partners and senior/supervising attorneys may appear to be interested in a co-counsel opportunity mainly to ensure their junior attorneys’ fulfillment of state pro bono requirements or simply to give their associates interesting work. But cocounseling opportunities with the ACLU are not a training module for their attorneys to learn on the job while partners check out and the affiliate’s lawyers end up holding the supervision bag. Management at a cocounseling firm should treat the affiliate’s case as they would a case for a paying client. It helps enormously if management itself is excited about the case and wants to bring a great team on board; they can step in and help smooth things over when, especially if a case goes on for years, their attorneys start being pressured to turn away from ACLU work and back to work for paying clients. Over time, the legal department will develop a roster of partners and senior attorneys who understand

this dynamic of cooperation and transparency, whom it will return to over and over. This is not to imply that the partners and senior attorneys will always be in the role of smoothing over issues that arise with junior attorneys on the cocounsel team; in some instances, the partners and senior attorneys may themselves be the cause of an affiliate’s headache. There will be co-counsel firms that the affiliate team opts to work with because of the committed and hard-working junior attorneys, not the partners. Further, the associate/junior attorney corps tends to be more diverse than the partner corps at most law firms, which is a significant consideration in selecting co-counsel for many affiliates that are mindful about maintaining an EDIB perspective on the legal team and that seek opportunities to work with BIPOC, LGBTQIA+, and lawyers with diverse lived experiences. A best practice is to evaluate the quality of cocounsel’s work product as early in the case as possible. This has the benefit of giving clues as to how much preparation time the co-counsel team will need during the course of the litigation, including whether it has an efficient and effective process for circulating outlines, drafts, and comments that culminate in excellent final products. If the co-counsel team struggles to put together an initial research memo – for example, because the attorneys misunderstand the substance or there’s no clear progression to supervisory review before making its way back to the affiliate legal team – the affiliate lawyer who is leading the case can intervene, sooner rather than later. Once the litigation is underway, it will be extremely difficult to terminate the co-counsel relationship; it is best to avoid that prospect assiduously with advance knowledge and expectation-setting where possible.

Step 4: Ensuring quality control and relationship management There will be times when a co-counsel relationship can be summed up as “Perfect, no notes.” Those times will not be the majority. Fundamentally, working with co-counsel is the same as working with any volunteers: they are not ACLU staff and the affiliate team won’t have the freedom to supervise them as such.

Even in situations where the co-counsel agreement clearly spells out all manner of anticipated scenarios, there will be unexpected and unwelcome developments. For example, it may turn out that the co-counsel team’s work product is subpar, that it is not devoting the amount of time or care necessary for the case, or that it is not pulling its weight in crucial, time-consuming, and/or difficult stages of the cases, including largescale fact-gathering. Sometimes intervention is needed. It often falls on the affiliate legal team to remind a firm partner or supervising attorney that the ACLU cannot be expected to do most of the work most of the time and to cover for underperforming co-counsel to boot.

A good general rule of thumb is “Trust but verify.” Once the legal department has reached a place of trust with a firm, partner, or team head, the affiliate should need to do less and less expectation-setting and procedure-hashing. Where such an issue arises, conflict aversion is the affiliate team’s worst enemy. The lead affiliate point of contact should reach out to the head firm attorney and ask them to intervene: describe the issue the affiliate legal team has observed, reiterate that the team is counting on the co-counsel team to help carry the case, and request that the latter team step it up, whether that means assigning more attorneys or adjusting

some aspect of supervision, like telling the head attorney that work product needs to have significant supervisory review before it gets passed back. One or two interventions are usually sufficient to get back on track. Such interventions are a necessity precisely because the affiliate team’s capacity is limited; issues should be addressed and resolved before they become drawn-out and too thorny to effectively or quickly resolve. Some situations, such as where the firm exhibits consistent unavailability or continues to share low-quality work despite attempts at mitigation, may require shifting full responsibility back to the affiliate team entirely. Two-way communication is critical: co-counsel also needs to feel comfortable relaying bad news or feedback to the affiliate team. It is preferable for them to communicate clearly and timely that their team has to pull back for a short while – for example, because another matter is heating up or going to trial – than for them to say nothing and leave the affiliate team watching confusedly as the firm’s work becomes slower and worse-quality. A good general rule of thumb is “Trust but verify.” Once the legal department has reached a place of trust with a firm, partner, or team head, the affiliate should need to do less and less expectation-setting and procedurehashing. From experience, the legal department learns which firm, which partner, or which associate is a good teammate and should be engaged for future cases, and which was not helpful on a particular case but could be slotted into a different kind of case, or perhaps in a different role, the next time.

Practice Note: Utilizing a Co-counsel Database Put together an internal chart of your and your team’s experiences with co-counsel: specific firms, partners, supervising attorneys, and associates. Which firms are best at which types of work, on which types of timelines? Who went above and beyond? Who never did more than the bare minimum? Who had trouble being a team player or absorbing feedback? Who shone when it came to a particular aspect of the 48

litigation (e.g., finding experts and determining deposition strategy) but didn’t add as much value elsewhere? This kind of information is incredibly useful on an organization-wide level, not just for the affiliate. Affiliates may come knocking at each other’s doors, wanting information about other teams’ experiences with particular firms and particular people at those firms.

Section V: Working with the National Legal Department ACLU affiliates are under constant pressure to fill the legal department’s plate with all of the cases that the team can conceivably handle. This is especially true in states where the affiliate is one of very few public interest legal organizations. A best practice is to resist that urge and leave room for emergent opportunities, outright emergencies, or otherwise unexpected cases, such as: The previous section covered co-counsel relationships with private law firms and other nonprofits. Of course, projects in the ACLU National Legal Department are also frequent co-counsel with affiliate legal departments on cases across the spectrum of issues in which the ACLU works nationwide. This section focuses on that relationship specifically. The ACLU pays particular attention to a handful of issue areas that apply to affiliates nationwide. Issuebased projects housed within the National Legal Department focus on these common areas. 56 As a general matter, the projects are rich resources for affiliate legal departments, and vice versa. Projects provide subject matter expertise in issue areas where affiliates are looking for ways to creatively think through and amplify their work. They also provide a bird’s-eye, nationwide lens on jurisprudential and practice trends, percolating problems, and litigation and legal advocacy strategies in and across particular issue areas. For their part, affiliates provide local expertise in issue areas of mutual focus and the dynamics of local courts, and they are holders of crucial relationships with the community groups, coalitions, stakeholders, academic and other experts, government and political actors, and civil rights and social justice practitioners/organizations that have on-the-ground knowledge in those issue areas. As such, close working relationships between the National Legal Department and affiliate legal departments can be incredibly fruitful and mutually beneficial. 57 In addition, national board policy requires that all U.S. Supreme Court litigation be coordinated by the National Legal Director, so an affiliate that has an interest in pursuing a petition for Supreme Court review, or in filing an amicus brief in the Supreme Court, must first reach out to the National Legal Director. This policy is designed to ensure that the ACLU, a repeat player in the

Supreme Court, speaks with one voice in that forum, and that all decisions are coordinated. A good first stop for an affiliate that has a strategic priority in an area covered by a project in the National Legal Department, or does any legal work in that area, is to contact the head(s) of that project. Even if a collaborative opportunity does not arise immediately, it will pay dividends to have formed a relationship early. Following is a collection of resources to help navigate the co-counsel relationship with the National Legal Department:

1. “ G uidance for National and Affiliate Legal Staff Working Together” (2023) This is an ASNI guidance document that describes the policies that are foundational to the national and affiliate relationship and lays out best practices for working together. The covered policies include Policy 513 (requiring affiliates to communicate to the National Legal Director if it would like to file a petition or amicus brief at the U.S. Supreme Court) and Policy 510 (providing that affiliates should have the goal of retaining all courtawarded attorneys’ fees unless they have a policy on special circumstances that allow co-counsel to retain up to 50% of awarded fees).

2. “How National & Affiliate ACLU Offices Work Together” (2021) These are materials from a presentation that was part of the “How to be an ACLU lawyer” series, co-organized by ASNI and the National Legal Training Committee. They answer the question of how affiliate legal programs should connect and maintain relationships with projects in the National Legal Department, what are the best practices for collaborating with them on litigation, and what are non-litigation ways to collaborate with them, such as amicus briefs and deep consultation on the case law of a particular subject matter.

3. “Co-counseling” (2022) These are materials from a presentation that was part of the “How to be an ACLU lawyer” series. It supplements many of the topics/questions covered in “How National & Affiliate ACLU Offices Work Together,” including about relationships management, conflicts, and co-counseling agreements. 49

4. Legal Resources on the Hub Projects in the National Legal Department post helpful legal resources on the Hub, including model papers, toolkits for certain types of litigation, and webinars and trainings. For example, the Voting Rights Project has an extensive Hub page that contains model papers for various types of voting rights and election protection litigation. There is also a general legal best practices page for affiliate attorneys and support staff, including sections on fees, timekeeping, and Westlaw.

5. Organizational & National Board Policies Generally, it is important for affiliate staff to be familiar with national board policies on substantive issues. ACLU bylaws and policies on topics of relevance to all staff (such as board elections and employee free speech) and of specific relevance to affiliate lawyers (such as litigation) are listed on the Hub.

The National Legal Department also houses the State Supreme Court Initiative (SSCI), which was established in 2023 to fight for the expansion of rights through state supreme courts, both through litigation and advocacy.58 SSCI attorneys work with affiliates in various state courts across the country at the state supreme court level. Where an affiliate legal department is exploring work under state constitutional and statutory provisions that are promising and/or may have analogues in other states – for example, wording that imparts individual rights to equal education or bodily autonomy that is more expansive than under federal case law – it is helpful to consult with the SSCI early.

Section VI: Regional & Multi-State Work Other sections have looked at solving the problem of siloed legal departments within an affiliate by orienting toward an integrated advocacy lens. This section zooms out to look at ways that affiliates can build collaborative legal work with other affiliates. In a nationwide, federated system like the ACLU, the organization is stronger when the connections among individual affiliates are robust; truly, the sum is greater than its parts. And there is no shortage of ways that affiliates can work with each other to advance legal advocacy priorities. If one affiliate is working up a lawsuit or other effort in a given issue area, there is a solid likelihood that another affiliate, and/or a project in the National Legal Department, has thought or is thinking along similar lines. Staying substantively connected to legal work throughout the ACLU system in order to identify mutual goals is absolutely paramount – at a minimum, to ensure that an affiliate is not contradicting general organizational imperatives, but also to strengthen its own approach by tapping into existing resources, research, and best practices.

▶ Rapid Response Initiatives

Multi-state work requiring immediate, nationwide responses spring up in various forms, and took on an unprecedented urgency during the2017-2021 Trump administration. Generally, this was due to the fact that major federal policies were issued or changed with very little notice and/or in ways that caused chaos on the ground because of lack of preparation and coordination with the relevant federal and state agencies. In response to, for example, Trump’s Muslim ban 59 and immigrant family separation policies,60 ACLU affiliates across the country mounted litigation in federal courts in close coordination with the Immigrants’ Rights Project. And in response to the scattered state policies regarding treatment of prisoners when the COVID-19 pandemic began sweeping through carceral facilities,61 many affiliates found themselves having to put together lawsuits against states and state agencies on a more expedited basis than they had ever experienced, in close coordination with the National Prison Project and Criminal Legal Reform Project.

Some of the ways that regional and multi-state work fit into affiliate legal programs are:

As the 2020 presidential election approached, affiliates and the Voting Rights Project coordinated on cases challenging voter suppression laws and practices in several states; they also coordinated on election protection efforts before and on Election Day, then on post-election litigation to address both expected and unexpected challenges arising from the vote-counting process in a number of states.

▶ Structured Multi-state Initiatives

▶ Working Groups

ASNI runs a number of multi-state initiatives. Currently they are: the Battlegrounds Initiative (11 affiliates), the Border Humanity Project (4 affiliates), and the Southern Collective (12 affiliates). The initiatives bring together national and affiliate staff across departments to identify shared goals, build capacity and skills, and design and execute integrated programmatic work to meet the shared goals. The overarching idea is that regional or multi-state collaborations identify efficiencies and create leverage that would be less likely if a single state were engaging in an equivalent agenda. In addition, through the planning process and regular meetings, trainings, and share-outs, the affiliates in the multi-state initiatives naturally form relationships of solidarity and support, with one another and with their counterparts in the national office.

Affiliate and national staff have formed working groups to explore interdisciplinary issue areas and engage in peer learning. Examples of working groups include: indigenous justice, environmental justice, unhoused justice, defense on reproductive justice, pre-trial reform, prosecutorial reform, and sex work decriminalization, among others. Some are loosely based associations of affiliate and national staff who share an interest in examining ways that the ACLU can expand or refine its involvement in particular issues areas. Some, such as the Indigenous Justice Working Group, have mission statements and work to create resources and provide technical assistance at a nationwide level. The Legal/Comms/Political Advocacy departments have regular calls to discuss Systemic Equality-related issues and are looking for creative ways to engage more with affiliates.

▶ Nationwide listservs

ACLU affiliate and national staff engage in less formal methods of coordination and collaboration through listservs pertaining to specific issues (e.g., the schoolto-prison pipeline, death penalty).

A best practice for affiliate Legal Directors is to cultivate relationships across the federated organization, early and often. In particular, the Legal listserv is a rich resource for advice and guidance on proposed and existing cases. On the listserv, affiliate and national lawyers share demand letters, motions, and briefs; ask and answer substantive legal questions; exchange information about experts, defense counsel, and other parties in litigation; and impart knowledge about goings-on in legislatures and courts at the local, state, and federal levels, including observations and expertise about case law in particular federal circuits. There are also ways for affiliates to spontaneously (and then perhaps more formally) collaborate with each other outside of emergency and rapid-response situations. For example, in the roughly two-year period following the passage of the federal American Rescue Plan Act (ARPA) in 2021, at least nine ACLU affiliates worked together to mount a coordinated legal and policy response encouraging the U.S. Department of the Treasury to investigate states that were using ARPA funds to construct prisons instead of to fund public health and economic recovery measures. Other states collaborate to stand up similar legal-services-adjacent programs housed inside their legal departments, such as LGBTQ or immigrant clinics, or to collect multistate research on issues of general concern, such as state and local law enforcement use of surveillance technologies unvetted by (even unknown to) the public. A best practice for affiliate Legal Directors is to cultivate relationships across the federated organization, early and often. While there are resources that enable Legal Directors to keep apprised of legal 52

goings-on throughout the ACLU, there is no substitute for making proactive and consistent efforts to meet colleagues across the organization, become reasonably familiar with their priorities and work, and remain receptive to the prospect of collaborating on legal advocacy with other affiliates and/or with projects in the National Legal Department. Especially in the issue areas that touch affiliates and the national office widely, the ACLU’s litigation in different jurisdictions is stronger for being mutually informed and contextualized. This also helps to thwart the prospect of advancing dueling, even contradictory litigationrelated messages to courts and to the public. Perhaps more importantly, on an individual level, affiliate Legal Directors can derive personal and professional benefits from having a strong sense that they are part of a wider community of people who face similar challenges and gain satisfaction from engaging in similar work. Those benefits go a long way toward sustainability and longevity in a demanding profession, especially against the backdrop of intense civil rights and liberties challenges.

Section VII: Financial Resources Available from National to Build Affiliate Legal Programs As part of its mandate to work with affiliates to build their capacity at all levels of each organization, ASNI also has responsibility for administering the Grants to Affiliates (GTA) program. This program is resourced with funds dedicated by the national board from the general operating budget, foundations, and individual donors who earmark their gifts for specific issues. Because there is only so much money, ASNI’s primary focus is to achieve nationwide impact on our organizational priorities and build longterm, sustainable and durable power in affiliates. We do this by seeding and nurturing talent in all areas of organizational development and program – development, operations, finance, communications, advocacy, and litigation. We aim to build strong organizations, healthy teams, diverse workforces, and leadership and governance practices that center equity, diversity, inclusion, and belonging values. Often, these grants are the outcome of work underway between an affiliate and ASNI staff and may be responsive to affiliate pressing needs; strategic to obtain a specific impact; and proactive to drive towards a long-term goal.

There are many resources available on the Hub that provide a deeper dive into grant funding. These include: ▶ Grantmaking Overview ▶ FAQ 501c3 501c4 Separation ▶ FAQ Grant-Making Program ▶ Summary of Timeline and Activities Executive Directors and development staff are usually in conversation with the ASNI Director on general capacity-building grants. But in addition, each year there are funds set aside for advancing specific program areas. At the start of each fiscal year, RFPs for each of these initiatives are sent to the development and executive director listservs announcing these grants, deadlines, and any particular focus. Generally, these funds can be directed to support work in the following areas: prisoners’ rights, capital punishment, women’s rights, reproductive justice, racial justice,

immigrants’ rights, LGBTQ+ rights, criminal law reform, First Amendment, and voting rights. National program staff provide input and recommendations, and ASNI provides final approval to ensure coordination and fairness across affiliates. For these efforts, we look for impactful programs in ACLU priority areas that aim to win ambitious and achievable policy goals. We prioritize work that is highly collaborative with the national office to operate as a united force. We also look for innovative affiliate programs with the potential for wide and meaningful reach, center those who are most impacted, aim to hold democratic institutions accountable, and are ambitious and scaled to achieve maximum impact. Funding can go towards current staffing costs, new positions that will expand a program if they can be shown to be sustainable, or internships that will help build a talent pipeline, particularly for attorneys of color and research staff. ASNI does not fund assets or strategies that will be primarily executed by third parties or direct litigation costs which should otherwise be assumed by cooperating counsel or an affiliate, absent special circumstances. On occasion, funds can be used to hire expert witnesses or related litigation expenses. A key consideration is the need to ensure that these funds are leveraged to build affiliate power and program longevity.

Affiliate Legal Directors should be in touch with their Executive and Development Directors at the start of the year to talk through the earmarked grant opportunities and how to prioritize needs within their affiliate. Grant requests should reflect a unity of vision and agreement within the affiliate about how particular requests fit within the affiliate’s strategic plan.

Conclusion In early 2020, affiliate Legal Directors in the first cohort of the Program and Strategy Group, a learning community of seven affiliates, told ASNI that their vision of a powerful legal program is one in which excellent work, internally aligned on goals and strategy and externally informed by deep relationships with community partners, creates impactful outcomes and builds power along the way. As the Guide began to take shape in the year following the conclusion of the Program and Strategy Group, it became clear that their vision is evergreen. The Guide began with a statement that it is a living document, aiming to describe the ways in which affiliate legal programs have evolved and identifying best practices of impactful legal programs and of excellent leadership of those programs. ACLU legal programs have, in ways small and large, changed over time. But one thing that has not changed is

its commitment – across the federated system and regardless of affiliate size, resources, environments, and priorities – to bringing exceptional lawyering to bear on an ever-changing landscape of civil rights and liberties challenges. Such commitment inherently involves both a willingness and an ability on the part of affiliate legal programs to constantly adapt, adjust, find ways to simply do the work even better than they are. Depending on the moment, this could mean revamping the selection and development of legal work, diving into a new program planning process, growing team capacity through fruitful co-counseling relationships, finding ways to work more effectively with other affiliate departments, socializing important internal values around an equitable and sustainable work culture, and any number of other things. Excellent legal work is not produced in a vacuum. Affiliate leaders, and in particular Legal Directors, have an essential role to play in creating the environment where such work can be produced. It is ASNI’s hope that the Guide will inspire and support their leadership and continued development of affiliate legal programs.

DEFEND THE RIGHTS OF ALL PEOPLE NATIONWIDE

ENVISIONING A STRONGER FUTURE: A GUIDE TO BUILDING ACLU AFFILIATE LEGAL PROGRAMS

ACKNOWLEDGEMENTS

Envisioning a Stronger Future: A Guide to Building ACLU Affiliate Legal Programs is a resource created by the ACLU’s Affiliate Support and Nationwide Initiatives Department. It is based on learnings and best practices gleaned from interviews with and contributions from an advisory committee consisting of: Wookie Kim, ACLU-HI Legal Director; Dan Korobkin, ACLU-MI Legal Director; Jeanne LoCicero, ACLU-NJ Legal Director; Scott Michelman, ACLU-D.C. Legal Director; Alex Rate, ACLU-MT Legal Director; Michele Storms, ACLU-WA Executive Director; Vic Walczak, ACLU-PA Legal Director; and, for specific sections, Sharon Brett, former ACLU-KS Legal Director, and Daniel Tilley, ACLU-FL Legal Director. ASNI Senior Advisor for Affiliate Legal Programs Haeya Yim was the primary author. The Guide was edited by Kary Moss, ASNI Director; Ari Rosmarin, ASNI Program and Strategy Senior Director; and Casey-Bruce White, ASNI Program and Strategy Deputy Director. ASNI is grateful to each member of the advisory committee for their time, enthusiasm, and above all their expertise and unique perspective as this resource was conceived and refined. The Guide was designed by Black Digital.

Footnotes

See Section III on integrated advocacy.

See Section V on the National Legal Department’s State Supreme Court Initiative.

Although “cases” is used as shorthand throughout this section, it is of course true that legal work consists of more than litigation filed in state and federal courts. Affiliate Legal Directors often decide to pursue something as a legal project even when it does not involve a traditional lawsuit or legal representation. Consider the example of a legal department that works closely with an immigrant justice coalition that successfully advocated for a state law allowing undocumented persons to obtain driver’s licenses. The legal department may do legal work relating to implementation of the new law; this could include providing input to the state agency charged with implementation, suggesting language and offering research from other jurisdictions in order to ensure that the final policies are informed by the concerns of the affected communities who are directly represented by coalition groups. Consider also the example of amicus briefs, which Legal Directors use strategically where they can make a real difference. Well-placed amicus briefs can create impact by setting binding precedent with published appellate decisions, particularly when the parties themselves are not interested in or capable of doing so without serious support, or where the court genuinely prefers to hear from organizational/interest group amici in order to make a highly consequential decision that will affect a significant number of people.

Case selection processes should be memorialized in writing in order to build institutional memory about case selection criteria (including the affiliate-specific considerations that go into designing such criteria) and to help with clarity and transparency with affiliate colleagues and with external partners and stakeholders, as appropriate. It is important to communicate that an affiliate legal program has a deliberate lens through which it picks cases.

See Section II on legal program planning. If the affiliate does not have strategic priorities in place, it is good practice to engage the Executive Director, other affiliate department directors, and external partners about what their priorities are, as well as what has and hasn’t worked in the past; there is likely already an informal direction and a sense of shared vision for the affiliate. Deliberate, collaborative decision-making in this regard will help keep the legal program accountable to affiliate-wide goals, especially when the goals are part of a coordinated campaign. ASNI published the “Program and Strategy Playbook” (the “Playbook”), a toolkit designed to support the cultivation of excellence in ACLU affiliate programs that maximize impact, growth and power through an integrated advocacy approach. The Playbook’s “Building a Program Blueprint” section contains helpful information and resources for affiliates that are thinking about their approaches to building out a set of concrete goals within a given issue area. The Playbook is available on the Hub here: https://hub.aclu.org/Interact/Pages/Content/Document.aspx?id=7135&SearchId=753499. Affiliate strategic priorities are not static. Many affiliates reexamine their priorities every few years, sometimes on set schedules in which they look one to two years ahead, or five years ahead, or something in between. Particularly for new Legal Directors who come into an affiliate that has a set of strategic priorities in place, they will likely have an opportunity at some point to weigh in on a new direction for the affiliate.

Consideration and identification of the ACLU’s lane does not mean, however, that the ACLU should act only if no other entity is engaging on the issue. The affiliate may decide to co-counsel with other organizations or take initiative if doing so advances other institutional priorities.

With the goal of advancing civil rights and civil liberties, it should be the rare situation where an affiliate seeks only monetary damages. While monetary damages may be a “stick” against unlawful governmental actions and appropriate in some instances, they are not necessarily sufficient to advance substantive reforms.

The potential to strengthen a body of law is particularly relevant in states where the federal courts are increasingly hostile and state court litigation presents the possibility of more favorable outcomes on issues that can be and are litigated in both (e.g., definitions of privacy, rights to education and autonomy, limits on the reach of criminal law enforcement).

For instance, an affiliate could “win through losing” in a First Amendment overbreadth case if the court’s decision to dismiss the case relies on a narrowing construction of the challenged law that results in more speech being protected.

Allies and impacted communities do not usually speak in a single, aligned voice, and there is much debate about who speaks for impacted communities. One of the challenges presented by this reality that it is up to the ACLU, at both the affiliate and nationwide levels, to decide for ourselves who we are in relationship with, who we listen to, and what appropriate consultation looks like.

Finding the right lane and opportunities for leadership is important not because the ACLU is in spaces where no one else can do, or is doing, the work. It could be that other organizations are able to but are not (e.g., for capacity reasons), or that the ACLU wants to establish relationships with new partners or be responsive to the concerns of existing partners who are already in the space.

See Section V on working with the National Legal Department.

See Section II on legal program planning.

As with the creation and maintenance of a balanced docket, best practice is for an affiliate to have, and to consult, established criteria when deciding whether to assign capacity to non-priority work. At minimum, such decision entails a full accounting of what a new project or any type of non-priority work would require, including the likely time horizon and resources needed, as well as a scoping out of how the work stacks up against (perhaps even complements) existing priorities. For a helpful example, consult the Playbook’s “Executing and Debriefing” section, which contains a resource on staying the course and knowing when to deviate.

N ote that “resources” does not refer only to external funding opportunities such as individual donor or foundation grants, and even where such grants are concerned, they of course do not drive litigation decisions. However, the national office frequently offers grants to affiliates in order to support more work in a given area, like voting rights and reproductive freedom, that the affiliate is already interested in. In that situation, it is reasonable and realistic for the Executive Director and the Legal Director to discuss the opportunity and how it might influence how the legal department makes decisions. This is especially true where the opportunity expands the legal department’s capacity in a given area. See Section III for more on the evolution of the interaction of boards and staff.

ing, sequencing, and organizing the work around a particular agenda. Affiliate strategic planning takes place every three to five years and can involve several lengthy steps, including in roughly the following sequence: surveys of (or other detailed conversations with) staff, board members, and internal and external stakeholders; research or analyses from affiliate departments to evaluate the relative merits and viability of potential goals; meetings and discussions among the full affiliate team to assess a smaller number of potential goals and priority projects and strategies to reach those goals; senior leadership meetings to further winnow down to a group of three to five shared affiliate priorities; and finalization of goals, strategies, tactics, and roles.

On a practical level, the time delay presented by an external approval requirement is not insignificant. The legal department is unable to work on cases while it waits for the legal panel and/or board to meet, discuss, ask follow-up questions, and render a decision on a new case. And this delay is in addition to the time spent by staff members working on memos and presentations to garner the panel’s approval to begin with. Fast-moving situations where a legal department simply does not have the time to wait to, for example, send a pressing demand letter can be severely hampered by an extra step of external review.

For a Legal Director specifically – as the department head and ultimate overseer of all litigation and other work in the department – planning can help to assure the quality of their own work, as decider, delegator, reviewer, and manager/mentor. In the absence of planning, it can be tempting for a Legal Director to say yes to too much and to overload their own plate, which affects everyone else on the team in myriad ways. If there is anything a Legal Director can do ahead of time to avoid such overload, there is no discernible downside to doing it. This is especially true for newer Legal Directors, who can use planning documents to ensure that balls are not being dropped and that high-priority work is under control as they settle into their new role.

In states where the political backdrop is largely hostile to the ACLU, having relationships with attorneys and law firms that do not necessarily agree with all the ACLU’s stances, but might on some issues, can still be significantly beneficial. For example, those attorneys and firms may have strong relationships with decision-makers and the people and organizations that can influence those decision-makers.

People have to know what their rights are in order to know when those rights were violated. Building that awareness of what the ACLU does and what it can offer is a valuable end all on its own, and it has the added benefit of opening inroads for diverse impacted communities to the affiliate.

See Section VI on nationwide resources.

See the Playbook’s “Goal Setting” section for more information, including on types of goals (outcome, capacity, process, and tactic), as well as the necessary components of well-set, right-sized goals.

As a general matter, all cross-department projects should have a plan that is mutually agreed-on and memorialized. Engaging in a collective planning process inspires shared commitment and accountability. It also reduces the prospect of inter-department sensitivities that tend to flare up when staff members in different departments are perceived as making demands on one other’s time without basis or authority. Such tensions happen less often when everyone is bought in to the same objectives and has participated in a process to lay out specific steps and expectations in that process.

C ampaign planning takes place on an as-needed basis. At a minimum, it involves a cross-functional team in the affiliate (and sometimes outside the affiliate, including coalition partners and/or impacted people), and aims to achieve a political, policy, or fundraising goal while building power within a defined period of time. Campaign plans have a specific timeline, budget, and clearly outlined path to victory. Refer to the Playbook for more information on campaigns.

See the Playbook’s “Building a Program Blueprint” section for resources about affiliate-wide planning, including in sections about mapping the ACLU’s role on issues and on develop-

The same way there is no one-size-fits-all planning approach, neither is it necessary for planning to be an all-or-nothing proposition. It is reasonable to wade into planning for the first time by creating a planning document for just one or two cases – particularly where those cases involve significant interaction with other affiliate departments – in order to become comfortable operationalizing planning. Then, over time and as legal department staff become more comfortable working within a planning framework, the scope of planning can expand to become a regular, department-wide effort in which large-scale changes to the planning document are undertaken on a regular but not constant basis (such as when affiliate priorities or campaigns change) where all staff are consulting and updating the planning document or tool as an ingrained part of their work.

See the Playbook’s “Staying the Course” section for strategies to help teams navigate decisions when emergent demands and opportunities arise.

Proactive goal-setting is described more in the next section. But an affiliate legal department can use the “looking backward” part of the planning process as an organic opportunity to examine its wins and losses, and its approach to what victory means in a broader sense. For example, if the department is notching only wins, is it possible the goals could be more ambitious? If the department is notching mainly losses, is it possible the wrong targets are being picked, and might there be ways to adjust?

Almost all of the information needed to transpose a docket onto a calendar should be readily available, as it is likely contained in case-specific litigation memos that described likely discovery and other major-phase schedules. See the Playbook for more information on building a team-wide shared vision and on setting goals, including about types of goals (outcome, capacity, process, and tactic), as well as the necessary components of well-set, right-sized goals.

Some of the concepts and operationalization ideas in this section have a counterpart in the Playbook, which offers interactive training modules for affiliates to use as they develop an orientation toward integrated advocacy, campaigning, and power- and capacity-building.

See Section I for more information on affiliate boards and legal panels.

To a lesser extent, the limits of litigation are also present in less hostile states where the threats come less from nakedly awful legislation and more from derivative problems like the problematic implementation of otherwise unproblematic legislation, the failure to adequately enforce laws to conform to constitutional constraints, and the inability or unwillingness of government institutions to be dedicated partners in building a multi-racial democracy.

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See Section I on building a docket of legal work.

The concepts of legal department capacity and individual staff capacity are not wholly distinct from one another; a legal department’s capacity is comprised of individual team members’ capacity. If there are four lawyers, with three working at near 100% capacity and one working at 80%, that does not mean the legal department as a whole has capacity. Inevitably, the lawyer working at 80% will shortly enter a busy period, or they will have to spend some amount of time picking up runoff work from their coworkers – writing, supervising, attending meetings – so that no balls are dropped by the team collectively. Capacity ebbs and flows. Experienced Legal Directors know that some team members having some capacity does not mean that new, resource-heavy work should be packed into those (probably fleeting) gaps.

Some of the larger affiliates have gone a step farther and created standalone issue-area groups within the legal department that focus on, for example, criminal legal reform or racial justice. Attorneys and legal staff in those groups work on dockets limited to their issue area.

T he exact mix of generalist and specialist attorneys depends on many factors, including the affiliate’s program goals and the particulars of its recruitment/hiring pool. Generally, best practice is to be able to ensure a certain amount of staffing and expertise flexibility so that resources can be moved among active litigation, emerging work, and potentially changing affiliate priorities and circumstances across issue areas.

This type of interdisciplinary, collaborative work has the happy benefit of sharpening affiliate lawyers’ thinking about their own capacities beyond litigation. They too are communicators, lobbyists, policy experts, organizers, and community educators – and growing their skills in other areas redounds to their benefit as lawyers. Consider cases in which the Constitution does not explicitly protect a right or protect a right as strongly as we wish it did – such as abortion, physician-assisted death, legal cannabis, freedom from extreme criminal sentences – but where state legislatures may have greater freedom to act to protect that right.

Generating supporter energy includes, for example, driving up the support of people with whom the development department is trying to cultivate relationships, and engaging supporters who can relate to the affiliate’s work and thereby become involved in efforts (inside and outside the legal arena) to defend and protect civil rights and civil liberties.

Soliciting self-reported goals from staff can be useful for other reasons. Legal Directors might need to use goals to adjust team members’ expectations. For example, if a staff attorney’s stated goals are to work 75% on direct representation in an issue area the affiliate is largely uninvolved in and 25% on an amicus practice, that will need to be addressed. Another example is where an attorney reports an interest in developing work that may, on first glance, not directly fall under one of the affiliate’s strategic priorities but would thematically relate to existing work and potentially lead to an interesting collaboration with the national office or a community partner with which the affiliate is actively trying to develop a relationship.

The Management Center’s SMARTIE goal model is an excellent guide to generating and defining goals that are Strategic, Measurable, Ambitious, Realistic, Time-bound, Inclusive, and Equitable. View SMARTIE resources at the Management Center’s website here.

Some affiliates have incorporated and memorialized imperatives into their strategic planning. For example, the ACLU of New Jersey’s framework for 2022-2026 lists among its strategic priorities: racial justice, partnered leadership, and organizational development (the last of which specifically focuses on the role of the board, sustainable staffing, internal systems goals, and decision-making clarity). The ACLU-NJ framework is available here: https://www.aclu-nj.org/sites/default/files/ field_documents/aclu-nj_strategic_plan-final.pdf.

In addition to Management Center resources, see the Playbook’s “Goal Setting” section.

See the Playbook’s “Campaigning” section for specific planning-related guidance.

During an integrated advocacy planning process, it is important to keep in mind that there are situations where “victory” may not mean a court victory – and that a loss can actually count as a win on another front. For example, the legal department may bring a case knowing that a court loss will likely result but that such loss will bolster a related effort toward the same goal (e.g. a narrative shift, getting some good language in a decision or dissent, building out language in dicta to inform simultaneous or subsequent legislative advocacy).

ACLU National General Counsel released an internal memo in 2008 that researched privilege issues, mainly in the Second Circuit, with respect to communications and public relations materials. It is not stored on the Hub but can be made available on request.

See the Playbook’s “Executing and Debriefing” section on implementation systems.

This section focuses on co-counsel relationships with private law firms (including solo practitioners) and other nonprofits. The next section will touch on co-counsel relationships with the National Legal Department. Where additional legal research and/or factual investigation is needed, an affiliate need not wait to approach potential co-counsel if what it specifically seeks is early-stage assistance from co-counsel on putting together the initial facts and theory.

This section focuses on co-counsel agreements. However, note that affiliates also utilize common interest agreements when they work with firms pre-litigation on significant investigations. Common interest agreements contain important terms that, among other things, define common interest materials and prohibit external disclosures.

A subset of this category, which must be discussed with potential co-counsel early on, is who owns the relationship with the client, because client contact/management is time-consuming and not everyone has the relevant skills or interest.

No one wants to be surprised down the road at the details of a fee-sharing/fee-capping arrangement, including if fees will be capped out of a lump sum settlement or if co-counsel will be expected to donate fees back to the ACLU. See National Policy #510 (“Relations with Counsel”) for more information about fee-sharing and fee collection generally: https://hub.aclu.org/ Utilities/Uploads/Handler/Uploader.ashx?area=composer&filename=510.pdf&fileguid=8b905878-1b4c-4da8-b8be-e2b5c889a3b7

A full organizational chart of the National Legal Department’s Projects is available here.

At affiliates with small legal departments, a best practice – if not an outright necessity – is to partner with the national office on nearly all major litigation. Legal Directors overseeing comparatively small departments are often able to tap into its ability to lead and execute on litigation relating to the ACLU’s priority issues. More generally, the availability of its issue-area expertise means all affiliate Legal Directors are able to think expansively about staffing, growing, and structuring their programs, including by thinking creatively about assembling a right-size team of litigators, paralegals, investigators, and a variety of needed support staff positions.

ENVISIONING A STRONGER FUTURE: A GUIDE TO BUILDING ACLU AFFILIATE LEGAL PROGRAMS

Affiliate Support and Nationwide Initiatives 60