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NEW ROLES FOR OLD ADVERSARIES:

The Challenge of Using Litigationto Achieve System Reform

Center for the Study of Social Policy1575 Eye Street, NW, Suite 500

Washington, DC 20005

January 1998

The Center gratefully acknowledges thework of Ellen Borgersen who was theprimary author of this report.

NEW ROLES FOR OLDAD VERSARIES:

The Challenge of UsingLitigation to Achieve SystemReform

Child protection is one of the most urgentissues on the public policy agenda. The stakesare enormous. Agreement on the goal of childsafety is broad enough, at least at therhetorical level, to unite people all across thepolitical spectrum. But what that means andhow to get there involves issues so sensitivethey are difficult to acknowledge, much lesstreat, in a "public" forum. Deciding what isbest for anyone child often poses a questionno less ultimate than the purposes and valuesof life itself Deciding what constitutes soundchild welfare policy involves a complexity ofcompeting interests and intersectinginstitutions that challenges a community'scapacity for public conflict resolution to theutmost. The roles of families, extendedfamilies, faith, racial, ethnic and tribalcommunities in defining "child welfare" arehotly contested. The notion that it is a publicconcern at all is a relatively recentdevelopment. (Borgersen & Shapiro 1997a;

Mnookin)

Today's public child welfare agencies confrontlarger caseloads and far more difficultproblems that did the private, largely voluntarysystem that served in quieter times. Drugs,gangs, family violence and cultural conflictintensify the problems. Growing numbers ofvery troubled children need intensive servicesthat do not exist in some places and consumeresources at an alarming rate when they do.And public agencies carry the extra burden ofantipathy to government intervention, which isespecially heavy in the intimate setting offamily conflict. Deep ambivalence about thisextraordinarily difficult work leaves manyagencies starved for the resources they need tocope with the kinds of crises that forcechildren into their care.

This disconnect between the public's demandfor child safety and its willingness to pay for it- in terms of both dollars and state intrusion

-often has tragic consequences. Theprincipal victims are children abused by thevery system that is supposed to protect them,and families-who don't get the services theyneed to stay intact. Caseworkers powerless tohelp are also victimized, but at least they canquit. Many of them do, of course. Childprotection workers are the "shock troops whoare expected to solve one of the nation's mostintractable social problems: the decompositionof families in the inner cities and the resultingepidemic of child abuse and neglect." (Gross)Inner cities are hardest hit and most visible,but some rural systems are just as troubled,particularly when it comes to find and retainingworkers qualified to do this demanding work."What they do is not rocket science," said thedeputy director of the Child Welfare League ofAmerica, "it's way harder than rocketscience." (Id.) Low pay and high stress pushturnover rates past 40 percent a year in someplaces, making investment in training all but

impossible.

The good news is that knowledge of what ittakes to build a sound child welfare system isgrowing. There is no formula~ solutions areintensely local in their details. Building aneffective community partnership for childsafety takes a long time, measured in years atleast. It requires trust among diverse partnersto take risks and to fail. It can be thwarted byentrenched bureaucracy or a change in politicalclimate. Even in privileged communities,barriers ftom the practical to the profound canundermine the best efforts of well-intentionedpeople. But patterns of success are emerging.Management consultants and technologycompanies are beginning to see child welfareservices as a growth market. Optimistically,

New Roles for Old Adversaries:The Challenge of Using Litigation toAchieve System Refonn

the goal of child safety might seed the renewalof a civic infrastructure capable of articulatingand achieving a community's collectiveaspirations for the care of its most wlnerablecitizens. (APIP~ Farrow~ Clark)

But many of the most troubled systems are stillfailing, and falling further behind. Inabandoned inner cities and rural counties, afailing child welfare system may be only themost visible part of a larger civic collapse.Devastated by corporate and middle classflight, these communities lack the basic publicand private institutions needed to support anadequate child protection system. The publicagencies that serve them lack the resources,political will and administrative capacity tomount and sustain the kind of strategicplanning effort needed for systemic reform.Here the pattern is of failed reform efforts,each one sapping strength and morale from asystem already stretched beyond capacity.

At least 20 of these systems are in litigation,and more will surely follow. Class actionlitigation is typically a last resort of advocateswho have seen too many children abused whilevoluntary reform efforts foundered. Becauseprotective custody must be ordered by a court,a system's most obvious failures are visible tothe judges and lawyers responsible for placingchildren in its care. In some states the judicialbranch has explicit oversight responsibility forthe child welfare system. Even where that isnot so, Federal and state laws afford amplebasis for holding agencies accountable for thewelfare of children in their care.

What the laws don't ten you, of course, is howto build a better system,and the best public

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interest litigators understand that securing adecree is the relatively easy part, the start of along and difficult process of institutionalrehabilitatioR. A -judicial decree can spotlightthe worst abuses and galvanize publicattention, producing short-term gains infunding for more services, more staff withlower caseloads, and closer scrutiny of agencyprocess and procedure. But fundamentalsystem change cannot be imposed from theoutside. It must grow out of a process thatengenders "ownership" of the reform plan bythose charged with implementing andsustaining it. In litigation, that requires partieswho have been cast as adversaries to buildenough trust to embark on a long and difficultreform process: a transition, in short, fromlitigation to effective strategic planning, whichis incredibly difficult. Too often opportunitiesfor strategic cooperation are missed, andlitigation disintegrates instead into Bosnianstalemate. The image is not invoked lightlyThe common analogy of litigation to armed At a recent conference convened by the Centercivil conflict has real bite here. for the Study of Social Policy (CSSP) in

Washington, D.C., participants in cases inTraditional litigation is tantamount to war, and Alabama, Arkansas, Kansas, and Kansas City,carries considerable costs and risks. It :Missouri, reported on their experiences with aconsumes valuable time, resources, and the "new" approach to settling child welfareenergy of agency administrators. It may litigation by engaging the former adversariesdemoralize front-line staff, conveying the and other stakeholders in a partnership inimpression that they have failed. It can pursuit of broad systemic reform. All wereproduce ill-conceived decrees that impose cautiously optimistic about their prospects foradditional burdens on administrators and staff success, and fearful of losing hard won gainswithout improving outcomes for children and that are still fragile. All were heartened tofamilies. Animosity surrounding a lawsuit can hear that their experiences were not uniquebecome so entrenched that it hinders the and eager to learn more about what wasagency's willingness to implement necessary working in other places. All reported difficultyreforms. In the worst case it affords an excuse raising the relatively modest resources neededfor continued failure, fueling a culture of to keep their hybrid processes movingvictimhood among embattled personnel. forward.

New Roles for Old Adversaries:The Challenge of Using Litigation toAchieve System Reform

In the best case, however, class actionlitigation can serve to spark and sustain realinstitutional change in deeply troubledjurisdictions. Litigation can force agency andelected officials to acknowledge the magnitudeof the problem and pay attention to resolvingit. It can create a space within which formeradversaries can commit to and work towardthe common goal of child safety, and beginbuilding the high quality system of care they allwant. It can sustain that commitment over theyears necessary to realize it, outlastingbureaucratic intransigence and politicalvicissitudes. With an infusion of multi-disciplinary technical assistance, a focus onsound social work practice, and a processdesigned to engage affected constituencies inthe planning process, several jurisdictions havemade substantial progress toward sustainablechild welfare reform within the litigationcontext.

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theseBy anymost inwelfare

measure junsdictlonsneed of help in rebuilding their childsystems, and yet they are shunned by

potential supporters who are fearful oflitigation. In a twist of irony and logiclitigation becomes the problem, rather than asymptom of a desperateDiscussion at the conferencewelfare professionals and lawyersboth voluntary andefforts in over a dozenconsensus was

need for help.included child

familiar withcourt-assisted reform

jurisdictions. Theirthat litigation is sometimes

necessary to spark and sustain the impetus forreform. But turning the comer from war topeace-from litigation to strategic planning':"-and maintaining that commitment over thelong course of institutional reform is verydifficult. One of the most consistent themes inthe cases was the significance of neutral,trusted outsiders who can bring formeradversaries together and help marshal thetechnical assistance and other resourcesessential to sustainable reform. But there is atpresent no reliable source of such expertise, orof funds to pay for it.

Litigation is not anyone's first choice for howto resolve a problem as complex as childwelfare reform, but it is already the reality inover 20 jurisdictions and will be unavoidable inmany more. More fundamentally, class actionlitigation is often the last best hope fordisempowered constituencies with no othermeans of access to institutions that profoundlyshape their lives. The challenge is to makelitigation a vehicle for genuine empowerment,a means of institutionalizing a voice for theseconstituencies that will be capable of holdingthe agency accountable over time withoutcourt support. A number of case studies in

New Roles for Old Adversaries:of UsinghallengeTheC

Achieve Systl Refonnem

child welfare and other fields, such as bilingualand special education, disability rights, healthand mental health care, show how class actionlitigation can energize disempoweredconstituencies and seed institutions that willgive them continuing control of publicagencies nominally accountable to them. (See,e.g., Dicker; Garth; Mnookin) And yet thesequiet successes are a well kept secret. Thelessons must be discovered over and overagain, and always seem new.

theare

In fact, class action litigation has often beenhighly effective in opening public institutionsto excluded voices. Try to imagine theAmerican workplace today without classactions that forced reluctant employers not justto hire women, racial minorities, and thedisabled, but actually afford them equalopportunities for success. The results havebeen revolutionary. Class actions holdingchild welfare agencies accountable to theirclienteles could have an equally transformativeeffect on these institutions, or indeed on anysocial service agency afi1icted with disablingremoteness from the constituencies it serves.Ironically the people most convinced of thisseem to be on the conservative right, whichhas attacked class action litigation withrevealing vigor and distressing success. Theircampaign has been aided by press accountsthat document vivid failure better than quietsuccess, and a demoralized left that oddlycondemns class actions for failing to achievemore sweeping change. (Rosenberg) In thisenvironment, legislative changes andrestrictions on legal services funding havemade class actions much more difficult to

pursue.

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The consensus at the conference was that classactions have a substantial chance of achievingreal refonn in some very troubled jurisdictions,which is more than can be said of otherstrategies. But it is a volatile tool, with thepotential for doing more hann than good inunskilled hands. Discussion at the conferenceyielded some insights on why litigation issometimes necessary to achieve child welfarereform, why it also creates barriers to refonn,and how to overcome those barriers. Theconclusion is that institutionalized support forclass actions could make a real difference inthe child welfare wars: could, in fact, makethe difference between success and failure inplaces that are being left behind on the road to

refonn.

Why is Litigation SometimesNecessary?

Institutional reform litigation is usually madenecessary by some failure of the politicalprocess and child welfare litigation fits thatpattern. (Ely 1980, Fiss 1982, Mnookin 1985)It is not hard to understand why wlnerablechildren are unable to hold politiciansaccountable for failing to carry through ontheir solemn statutory commitments to protectthem from harm while in state custody:children don't vote. The families and fosterparents most affected by the system are alsounderrepresented politically. This, in anutshell, is why child welfare services are insuch a widespread state of disarray: a classiccase of official nonaccountability to adisempowered clientele. Experiences reportedby litigating child welfare jurisdictions make

the theory concrete.

New Roles for Old Adversaries:The Challenge of Using Litigation toAchieve System Refonn

In Kansas, for example, veterans of 25 years oflegislative and administrative lobbying turnedto litigation after a promising reform effortfailed with the defeat of the state legislatorwho had championed it. Litigation opened thesystem to scrutiny and revealed an entrenchedand inefficient bureaucracy that was highlyresistant to change. It focused legislative andexecutive attention on the problem until a newcabinet officer was hired and given a mandateto fix the system. It led to a Task Forceappointed by the judge that brought agencyofficials and child advocates together withoutside experts to help settle the litigation.The agency ultimately concluded that the onlyway to fix the system was to dismantle it, andundertook a massive initiative to privatize over90 percent of its functions. The Task Force isgiving stakeholders and knowledgeable expertsa strong voice in the privatization process.The defendants in the litigation have been opento their input, and are using it to help build astronger and more accountable system.

In Alabama a class action litigator seized theopportunity presented by a reform-mindedstate director to enter into an innovative,flexible and ~ very ambitious settlement

agreement. It aimed to achieve state-widereform at the level of practice-that is, at thepoint of interaction with children and families-using the enforcement power of the court tomake it happen county by county. Under theguidance of an active and knowledgeable courtmonitor substantial progress has been made inmost of the state. Implementation is still notcomplete, and a new administration hostile tothe settlement is actively trying to undermineit. But the parties are hopeful that gains wonat the level of practice will become entrenched,

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not out of bureaucratic inertia but becausechildren and families are being better served,and people won't want to go back to the oldways. Moreover'strong political support wasbuilt by involving stakeholders in the reformprocess, and institutionalized in communitybased Quality Assurance Councils that givecounty agencies continuing feedback on theirperfonnance. The fonner state director andnominal defendant in the suit emphasized thatlitigation was essential to bring them this far:"we had to acknowledge that we wereincompetent, and that was hard!"

As the Alabama example suggests, achievingreal reform requires a strong internal championwithin the agency. Indeed real reform meanshaving internal champions within the agency,and what litigation can do is maintain pressurefor reform until those people arrive and thenhelp them carry it forward. That is whathappened in Kansas City, Missouri, which isthe most extensively documented of the casesthus far. (Borgersen & Shapiro 1997a, 1997b)

Litigation had been pending in Kansas City foralmost 15 years when a new, reform-mindedstate director first promised to focus attentionand fix the serious problems there. Whennothing had changed a year later, the plaintiffssought and obtained an order holding theagency in contempt, and naming the new statedirector as a defendant in the litigation. Withinmonths of the court's ruling he and theplaintiffs entered into a cooperative settlementprocess designed to build and implement ahigh quality system of care for Kansas City.The needs assessment and strategic planningtook almost a year, and implementationcontinued to encounter resistance from middle


management for another two years. Only then,after another monitoring report in the litigationdocumented continuing non-compliance, didthe state agency send one of its seniorexecutives to Kansas City for a year, andfinally come to grasp the depth of the problem.After another year of hard work the partiesbelieve that the next compliance report willshow marked improvement. F or over 20years, the litigation provided the continuityand the enforcement power to keep the issuealive in the political branches until they wereforced to deal with it. Moreover when theinternal champions finally did decide to getserious about compliance, the monitoringreports and threat of further court action gavethem powerful tools in implementing reformdown through the ranks of the agency."You'D end up being glad you were sued," onestate official said.

Critics contend that litigation is itself a causeof delay in these long-running cases, and canpresent almost insurmountable barriers toreform. There is some truth to that. Inunskilled hands and without the expertise andother supports essential to sustainable reform,litigation can poison the atmosphere and blockprogress instead of mobilizing it. Butunderstanding why and how that happenssuggests how those barriers can be avoided.

How Does Litigation CreateBarriers to Reform?

Twenty years after public law litigation got itsname (Chayes 1916) some judges and lawyersunderstand that it has a very different characterfrom the traditional, adversarial model, and

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that participants must step outside their usualroles in order to be effective in this process.But very few are well educated about theseissues. And .even-among those who know thetheory adversarial habits run deep. Thetraditional model still casts a long shadow overpublic institutional reform litigation.

The archetype of litigation, your basic "P v.D" lawsuit, is bipolar, retrospective, reductive,and adversarial by design. It aspires to a levelof clarity and certainty that is impossible toachieve in the messy, dynamic present, letalone the indetenninate future. It assumes thatthe dispute will be cashed out rather thanresolved, that the parties will never see eachother again, that they will take their money orswallow their losses and get on with theirlives. The key elements of an effectivestrategic planning process-the multilateralstructure, focus on the future, incorporation ofexpertise from many disciplines, andcooperative, dialogic, iterative approach-areprecisely the ways in which traditionallitigation is said to be ill-suited to the task ofeffective institutional refonn. The lesson ofKansas City is that it is possible but not easy todo strategic planning at gun-point-that is,under the ever present threat of legalsanctions. ' It is sometimes necessary to do so

when an agency has persistently broken thelaw. But it extremely difficult to break out ofthe litigation box and begin establishing thetrust on which a non-adversarial, andpotentially transfonnative, public conflictresolution process depends.

Traditional adjudication begins withassumptions of mistrust, non-cooperation, andfinality. If the parties could have resolved


their differences amicably they would not haveinvoked the coercive power of the state. Justas institutional reform litigation represents afailure of the political process, traditionalprivate law litigation is a failure of negotiation.These premises inform the rules on theinformation and participation -evidence andparty joinder, in legal parlance. Evidence issifted and participation limited in the interestsof reducing the dispute to terms on whichhostile parties will accept the court's judgmentas binding. The same assumptions cast thelegal actors in sharply defined roles: thelawyers must be zealous advocates for theirclients' interests (which are assumed to beirreconcilable-why else would we be here?);and the judge must be an unswervingly neutraland highly rational decision maker (the betterto command the respect of mutuallymistrustful litigants).

In Kansas and Missouri a trusted, neutraloutsider played a crucial role in assembling theelements of the reform process, and mediatingtensions between that process and thelitigation out of which it arose. Other caseshave managed to turn this trick withoutexternal intervention but the odds are againstit. All of the usual suspects in an institutionalreform case-the judge, the lawyers, and thelitigants-have to transcend their traditionalroles in order to be effective in the institutionalreform process.

The Judge. The judge is the ruler of theadversary system, and has primaryresponsibility for adapting litigation to thedemands of institutional refornt. (Chayes;Mnookin) Federal and most state courts havebeen given expanded powers and a variety of

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tools for managing complex institutionalreform cases, including the power to appointtheir own experts, for example. But the judgeis a passive ruler in the traditional model, anumpire calling balls and strikes. The moreactive role contemplated for judges in publiclaw litigation runs counter to that deep-rootedtradition. It is revealing that the judge whoconvened the Kansas Task Force later had torecuse himself from the case. He had simplybecome too involved to maintain theappearance of impartiality required of a sitting

judge.

A court could in principle appoint its ownexperts in the wide variety of disciplinesessential to effective institutional reform:social work practice, public finance,government contracting, systems management,human resources, and others. But this is alimited role, which must operate within theconstraints of the adversary system. Evenneutral experts often find that the pressure totake sides interferes with their effectiveness.Certainly the highly structured format ofcommunications before a judge, even off therecord, tends to inhibit creative problem-solving. One former Federal judgeexperienced in such cases said she beganconducting meetings with the experts onremedy in which the lawyers were allowed toattend, but not speak. The experts greeted thismove with relief: "For the first time I feel likeI can really think about the problem!," one of

them said.

Moreover the case studies teach that expertisealone is not enough: it is just as important toinvolve all stakeholders in the

New Roles for Old Adversaries:

ChallengeThe of UsingAchieve Sy Reformstem

and to build the institutions that will reCOMectthe child welfare system with its community.Iconic Justice notwithstanding, judges are notblind to the political implications ofinstitutional reform. When the civil rightsrevolution imperiled the legitimacy of judicialdecrees, creative readings of the formal ruleson party joinder allowed courts to recognizestakeholders in the remedial process who hadno legal right to a remedy as those terms wereunderstood in the context of private law.(Yeazell 1977) And in the elastic rules onclass actions, contemporary courts havevirtually unconstrained discretion to convenea "town meeting" on the problem presented bythe litigation. (YeazeU 1987) But they remainlimited in the extent to which they can solicit,rather than merely permit, intervention. Andthey get no help whatever ftom the rules or thecases on how to conceptualize "the problempresented by the litigation" in institutional,rather than individual, terms.

Finally, even if a court were to use the fullrange if its powers to bring before it all of theexperts and all of the stakeholders essential tosustainable institutional refonn, the question ofwhat to do with these inputs would remain.There is an oft-told tale in the annals ofinstitutional refonn litigation about the hearingat which "every time someone sneezed, thegezhundheits took ten pages of transcript."(Mnookin, Rhode) The point being that it isimpossible to do consultative process on therecord. More fundamentally, if the inputs areto a decision by the court, the output will belimited to what a court can order.

terms, judicialqualities that

In traditional legal processpower is constrained by thereformprocess,

Litigation toPage 8

distinguish it from political decision making:neutrality, and articulated rationality within alegal framework. (Eisenberg, Fuller) Courtorders must,be supported by findings of factand conclusions of law~ remedies should be"narrowly tailored" to specific legal violations,and not intrude unduly on the discretion ofagency officials. Even advocates of anexpansive judicial role concede that broadremedial powers are exercised at someexpense to a court's institutional capital, whichis why the discretion inherent in reforming acomplex bureaucracy is so problematic forthem. (Fletcher) Most judges prefer the roleplayed by the judge in the Kansas City case:he supplied the legal clout, in the form of acontempt order, which provided a powerfulincentive for the relevant players to negotiatea solution to the underlying problem. When itcomes to managing reform of a complexbureaucracy, it is preferable, if possible, toleave the Wizard behind the curtain.

The Lawyers. Judges may be more or lessactive in the remedial process, but theadversary system recognizes only one posturefor the lawyers: zealous representation oftheir clients' interests. Moreover the cultureof "adversarlal legalism" tends to define thoseinterests narrowly, in terms of winning thelitigation rather than the resolving theunderlying conflict: "(M]ost attorneys areoriented to their process," and counsel theirclients accordingly. "Parties-themselves orwith the help of willing gladiators-posture,threaten, incite, delay and escalate from anadversarial position. They take delayingactions, and often detach themselves from theconflict." (Levine.)


In class action litigation the picture iscomplicated by the fact that the clients are notnatural but legal persons-not the individual,autonomous, human beings who populatetraditional litigation but figments of the legalimagination, constructed out of the rules onclass certification on the one side andbureaucratic organizations on the other. Thefact that there are no real clients in publicinterest litigation, but only constructed clientswhose "interests" are profoundlyindeterminate, gives the lawyers essentiallyunconstrained control of litigation strategy.

The phenomenon of the clientless lawsuit hasbeen extensively studied on the plaintiffs' sideof class action litigation. (Coffee, Grundfestand Perino, Mnookin) The child welfare casessuggests that an analogous dynamic may be atwork on the defendants' side as well. Theindeterminate quality of "the public interest"and diffilse responsibility for promoting itwithin a sprawling state bureaucracy canconspire to empower lawyers at the expense oftheir nominal clients. The clients areresponsible adults rather than children, ofcourse. But they are as dependent as anyclient on their lawyers' advice and-particularly in middle management-may nothave the authority or the confidence to actagainst it. If the issue raised by the litigation isone on which there are policy conflicts withingovernment-as is true of virtually any issueof child welfare policy-control of litigationstrategy may fall to the lawyers either bydefault or through explicit pressure to suppressconflict and present a united front. This setsup a clash between two sets of highlymotivated ideological partisans, which mayaccount for the "needlessly confrontational"

Page 9

character of many child welfare class actions.

(Dicker)

Effective litigators tend to be highly partisan,impatient, skeptical, yes, confrontational, andabove all, firmly in control of the case.Litigators are accustomed to working withexperts from a variety of disciplines, forexample, but traditional training is to control"your" experts, and indeed all informationwithin the artificial confines of "the case."This drive to control information andoutcomes to the extent possible is part skilland part attitude, and is probably essential to"successful litigation" if that means winningbefore a court. But it is counterproductive inthe fluid atmosphere of remedial negotiations.

So is the advocate's natural mistrust of hisadversary. Litigation depends on adversarialpresentation to sharpen the issues. From thispremise, the very concept of a consent decreeis puzzling, if not downright offensive toseparation of powers: by what authority doesa court give its special blessing to anarrangement between the executive branch andthe special pleaders who happen to be beforeit in this case? From the same premise, alawyer representing governmental defendantsmight define her role as protecting "thepeople" from an adverse judgment, or thepolitical branches from judicial interference,regardless of the preferences of individualincumbents.

If litigators control defense strategy for anorganizational defendant they will shut itdown, retreat within the shell of formalstructure and official policies, and resist efforts


to get inside and tinker with the machinery.That's their job, or at least one view of what itmeans to be a good lawyer in the corporatedefense role. To understand how hard it is for

defendant or defenseembrace

either a counsel to pursuea different strategy-to litigation asan opportunity to improve the delivery ofpublic services-it is instructive that such alawsuit would be considered "collusive," andhighly problematic, within the traditionallitigation model. (Yeazell 1987) Indeed atleast one state legislature has barredgovernmental defendants from entering intoclass action consent decrees on this basis.

Even without legislative constraint mostdefense lawyers assume their clients want towin the case, and zealously pursue this goal.A different vision of the defense lawyer's role-counseling the client to confront the roots ofconflict, search out areas of wIner ability, andseek deep resolution rather than shallowvictory-has a long and noble tradition withthe profession, but has been largely eclipsed bythe dominant culture of adversarial legalism.(Levine.) It is, moreover, fraught with peril ifthe client is a sprawling bureaucracy, andauthority for resolving policy conflicts isunclear. Consider the experience of a lawyerdefending a corporate client in a class actionwho negotiated a consent decree on terms thegeneral counsel and product managersenthusiastically approved, only to be called onthe carpet by senior management to explainwhat she was doing letting "those people"-meaning plaintiffs' counsel-dictate how thebusiness would be run.

Page 10

This exposes a few more layers of complexityfor defense strategy in the corporate context.One is the repeat player problem: what otherlawsuits am- I inviting if I give these peoplewhat they want? Which leads to theconstituency problem: who are "thesepeople," and what are the consequences ofrecognizing their right to a voice in how I dobusiness? And not just any voice: a voicewith a mouthpiece, a lawyer, and under thejurisdiction of a court? The standard advice ofgovernment attorneys, and indeed the stronglyheld view of many government defendants, isto resist submission to judicial supervision atalmost any cost. Entering into a consentdecree aimed at system wide refonn, oftenagainst the advice of state attorneys, is a very

risky proposition.

On the plaintiffs' side, entering into a decreethat contemplates slow, painstaking progresstoward refonn is equally problematic. Alawyer with no real client is in anextraordinarily difficult position, particularlywhen it comes to deciding what counts assuccessful resolution of the conflict. One ofthe most consistent themes in successfulinstitutional refonn cases, for example,whether or not litigation is involved, is theimportance of realistic time frames, phasedimplementation, and experimentation. But ifthe plaintiffs' lawyers think of their clients asindividual children, as the traditional modeldemands they should, by what authority canthey agree to a process that postpones relieffor some of them? As one of the lawyers inKansas City put it, a year may not seem like along time to "policy folks," but it is one thirdthe lifetime of a three year old trapped ininadequate foster care. This sense of urgency

New Roles for Old Adversaries:The Challenge of Using LitigationAchieve System Reform

is entirely appropriate given the gravity of thesituation, and it is an important image to keepin mind to bring pressure for refonn at "alldeliberate speed." Attention to the personal,human dimension of a case is one of the greatstrengths of the legal process (Noonan), andlitigators rightly play to this strength in makingtheir case come alive to the court. A litigatorwho has documented bureaucratic failure andits human consequences for over 16 years islikely to be skeptical of promises to do betterwith just a little more time. But the truth isthat one cannot hope to turn the perfonnanceof a large, complex bureaucracy around in oneyear, or even three or four.

The Litigants. Which brings us, finally, tothe litigants, whose priority in the processreflects how most people feel about litigation.It is an 800-pound gorilla which has atendency to dominate the landscape in allevents, and especially when client control isweak. Just as it's best to keep the Wizardbehind the curtain, litigation works best whenthe litigator is on a leash. There is nodisrespect for the litigator's role in this view.To the contrary it rests on a real appreciationfor its power and the pressures it puts onpractitioners, and an honest recognition ofhuman weaknesses as well as strengths.

A central assumption of the traditionallitigation model-an, active, competent clientable to determine its own ends and employlitigation in a controlled way to achieve them-is obviously inapposite on the plaintiffs' sideof a class action. "The class" is by definitionan amorphous, disempowered constituency,and for that very reason effectively absent as a"client" even when the named plaintiffs are

toPage 11

competent adults. This phenomenon has beenstudied extensively in the context of antitrustand securities class actions- "where themoney is," as Willie Sutton might put it-andwhere the misalignment of lawyer incentivesand client interests often produces sweetheartsettlements that are inadequate from a lawenforcement perspective. (Coffee) Oneproposed solution was for institutionalinvestors with asecurities litigationactive

substantial financial stake into step forward and play an

client role, monitoring lawyerperformance and making strategic decisions,most importantly when and on what terms tosettle. (Grundfest and Perino)

The analog to institutional investors inideological class actions is the voluntary

. membership organizations. cannot

and

includingfoundation world.

support membershipfoundations interested in childtend to keepIS m confor exampJorganizationsagenda.towardenvironmental(Dukes,influencesomethingattenuated,an end

sector,and the

.at a

trast to the environmental movement,e, in which wealthy membership

have pursued an active litigation(Mnookin) If there has been progressmore revolutionary methods in

disputes, including mediationSusskind), that may reflect the

of organizations exercisinglike client control, however

in defining litigation as a means torather than an end in itself

It also reflects the willingness of officialdecision makers to recognize representativesof environmental interests as stakeholders inthe policy process, which still encountersresistance in child welfare litigation. The New

New Roles for Old Adversaries:The Challenge of Using Litigation toAchieve System Reform Page 12

York City litigation, for example, now standsabout where Kansas City was in 1989.Litigation has been pending for years, with nosign of progress. To the contrary, there havebeen repeated and highly visible failures, thekind with names, like Eliza Izquierdo, who arelost in the system while they live and end upon the front page of the New York Timeswhen they die. A new Commissioner forChildren's Services was appointed, a highlyregarded professional who was given broadpowers and a mandate to fix the system. At aconference on the role of litigation inprotecting at-risk children he freelyacknowledged the agency's deficiencies andpromised prompt action and improvedperformance. But he (or his lawyers), latertold the court that the agency would pursuereform without participation from the plaintiffs(or their lawyers or experts) in the long-pending litigation. Which misses one of themost compelling lessons of the Kansas Citycase study: participation, inclusion of theinterests and resources of all stakeholders inthe system, is part of the solution to theproblem he says he wants to solve. And thesooner that happens, the better off everyoneinvolved, most importantly the children, willbe.

ButorganIZatIons,

Issues. This

welfaredistancegreat

The Kansas City case study also shows thatthis is a very difficult role for governmentaldefendants to assume. Most people andinstitutions react defensively to a lawsuit. Anagency struggling to fulfill an impossiblemandate with inadequate resources will notleap to the belief that attack is justified. Evencaring and competent public servants resistletting litigation set their priorities or divertresources from other equally pressing

problems. They are likely to be advised bytheir lawyers to proceed very cautiously whenit comes to making commitments that might beenforceable by a court, advice that is extremelysensible from the perspective of the litigationbox. The challenge for governmentaldefendants is to break out of that box and riskembracing their adversaries as constituents,and partners in the difficult work of child

protection.

What Will Help OvercomeLitigation Barriers, and Makeit More Effective in AchievingSystemic Reform?

Child welfare cases present the classic paradoxof public interest litigation: advocates forpoor children, who are chronicallyunderrepresented in the political process, areforced to resort to the courts for enforcementof their legal rights, but rights-based solutionsare a notoriously second-best substitute for

effective political participation. (Mnookin,Rosenberg, Yeazell 1987) If it takes a village,or a system of community partnerships, toprovide effective child protection (Clinton,Farrow), the trick is to use the leverage oflitigation to help build those systems.

The cases presented at CSSP's conferencesuggests a role for the court as a sort of civicincubator, maintaining pressure for aspirationto high standards over the long time necessaryfor massive institutional reform, which oftenexceeds the political life-span of key decision-makers. "I am here and 1 am not going away,"as one prominent plaintiffs' lawyer put it at the


same conference at which the New YorkCommissioner spoke. But the cases also showthat litigators may be among the last torecognize when an opportunity for cooperativeengagement on systemic reform finallyappears. It may simply be asking too much toexpect gladiators to become peacemakers oncommand. In the wake of prolongedhostilities, it generally takes some forceexternal to the conflict, unburdened by history,to help the parties clear their channels ofcommunication and begin negotiating theturbulent passage from war to peace.

The Center for the Study of Social Policy hasplayed this role in many cases. One plaintiffs'lawyer who has worked with them on severalcases believes their substantive expertise isvirtually unique, and that making similar helpmore readily available is the key to success inother cases. There is no question that thetechnical and political resources are crucial.But so is the Center's role in helping theparties overcome their mutual distrust andbegin working together. A neutral outsidercan also give government defendants thepolitical cover they need to risk overridingtheir lawyers' advice and embarking on a longand difficult process with an uncertain end.

Indeed one of the most heartening lessonsfrom the litigating jurisdictions is that, onceadversarial barriers are overcome, theirexperiences are quite similar to those not inlitigation. The essential elements of successfulreform include:

parental and citizen involvement inarticulating needs, values and desired

.

outcomes for families and children, and

Page 13

holding the agency accountablefor achieving them;

detailed knowledge of local, state, andnational resources;

a focus on training and retainingexcellent front-line workers;

.

.

building an administrativeinfrastructure to support the workers;

.

building a political infrastructure tosupport the system, and hold itaccountable for achieving desiredoutcomes for children and families.

.

The cases show that class action litigation canbe a vehicle for starting this process even incommunities that lack the wherewithal to doso on their own. Indeed it is the only realisticroute to reform in the places hardest hit by thechild welfare crisis. At its best it has thepotential make government work for thevulnerable citizens we reluctantly entrust to itscare. But class action litigation cannot realizethis potential if it is relegated to pariah status.Ironically the only reliable source of fundingfor these initiatives is court-awarded attorneys'fees, which creates perverse incentives tolitigate more rather than less.

In fact it is the lawyers themselves who arepariahs here. The strong message is that thepeople who purchase professional services forchild welfare reform can envision noproductive role for lawyers in this work. Theprofession should be alarmed, and probablywould be if they could figure out how to makemoney doing it. Over ten years ago a


professor at Stanford Law School designed acurriculum to train lawyers to do much ofwhat CSSP and other systems-reformproviders do in child welfare cases: inessence, to work with disempoweredcommunities to help them assess their needsfor public services and figure out how to getthem. (Lopez) Some alumni objected thatwhat he was teaching was not law but socialwork, and didn't belong in a law schoolcurriculum. A prominent corporate lawyercorrected them: the proposed curriculumwould train students to do for poor peopleprecisely what business or transactionallawyers do for corporate clients all the time.Nevertheless the proposed curriculum failed,for lack of student, faculty, and donor interest.Meanwhile an equally radical curriculum to

train transactional lawyers in themultidisciplinary skills they need to servecorporate clients has flourished. Toparaphrase an old saying, the rich get rich(with the help oftransactiona1lawyers) and the

poor get litigators.

The lesson of many case studies is that classaction litigation is often an essential part of amulti-faceted strategy to achieve effectivereform of child welfare and other agencies thatserve poor and disempowered clienteles. Butin order to achieve lasting change, advocatesmust use litigation carefully, and in concertwith an array of other strategies designed toarticulate, implement, and sustain thecommunity's stated commitment to protectingits most wlnerable citizens. Effectiveadvocates must also form partnerships withallies inside government, work to empowerparents and children in their interactions withchild welfare agencies, and enlist the aid of

Page 14

experts and community leaders essential to asuccessful and sustainable refonn effort. Thisis an enonnously complex process thatrequires a set of skills not commonly foundamong litigators, or indeed anyone else in theveritable army of experts routinely deployed insuch cases. (Brest & Kreiger)

The natural tendency of litigation to polarizeboth issues and people must be controlled.Adversarial tactics are often necessary andeffective in exposing egregious wrongdoingand identirying responsible parties, whichgenerally occurs in the liability phase oflitigation. But in the all-important remedialphase, this approach stalls progress by creatingstalemates and inhibiting creative problem-solving among parties who must now worktogether to achieve reform. Litigators mustlearn the strategic benefits and effectivepractice of more conciliatory methods,particularly in working with the political actorswho are essential to a long-term reform

strategy. Equally important, non-litigators-meaning not only the defendants in the casebut the entire community that must bemobilized for effective child welfare reform-must learn to work effectively within thelitigation context, and gain control of thispowerful tool for reform.

A successful process depends first andforemost on plaintiffs and defendantsrecognizing their common interests inprotecting children and families, and theopportunity for mutual gain by workingtogether and with other stakeholders towardthat goal. This requires client control of thelitigation in some meaningful sense, whichmeans organizing the relevant constituencies

New Roles for Old Adversaries:The Challenge of Using LitigationAchieve System Reform

and helping them reach consensus on theircommon goals and how to achieve them. Theprocess will not happen spontaneously, andwill not always be smooth. Engineering themajor political and resource decisions, as well

as the smaller-scale programmatic choices,requires careful thought and expertise.Achieving a strong process on one communityis difficult; achieving it in multiple citiesrequires an overall national strategy that buildson the lessons learned in states and localitiesthat are using this approach. Such a strategycould take one of the most intractableproblems on the national agenda and use asleverage to transform decaying communities.The alternative-continued failure--is simplynot acceptable.

toPage 15

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