How Lawsuits Work

I am not a lawyer nor am I practicing law in this space. What follows should not be construed as legal advice but broadly there are two kinds of court cases: civil and criminal. The latter are tried by state prosecutors usually on the basis of evidence gathered by law enforcement agencies. A civil case may be pursued by any aggrieved party and is not dependent upon the state for prosecution. Before an individual or an organization may litigate against a government agency, however, there are some conditions that must be met: 1) is there a case? 2) does the plaintiff have standing?

The first test is whether there is a case. One (or an organization) may not like an action taken by an agency of the government but what matters is whether the agency has legal authority to take such an action. A diligent layman might be able to determine whether the law authorizes an agency to do something but it is probably wisest to consult a friendly lawyer.

As much as we Americans like to make fun of lawyers they do have their uses and this is one of them. Good lawyers know the law and they study the law in their areas of specialization. Just as there are medical specialists so too there are legal specialists. Your neighbor who practices contract law probably does not keep up with the details of the law that affects your proposed case against an agency of the government. She might be able, however, to refer you to someone who might be able to help you. Your local Bar Association also has a referral page and there are also legal organizations (both religious and secular) who specializes in litigation to protect civil liberties. Beware that not every organization that advertises itself as a civil liberties organization is such or will sympathize with your case but you may be able to find a lawyer willing to advise you. Some of them work pro bono (for the public good) because they are funded by generous donors. In some cases you may have to raise funds or, in some cases, a lawyer might take the case on contingency, i.e., he is paid out of an award granted to the plaintiff by the court.

Second, a plaintiff (the side with the complaint) must have standing, i.e., your lawyer must be able to demonstrate to the court that you have a right to bring the case. Simply because one does not like what an agency has done or simply because an agency may have acted illegally is not enough to create standing. Ordinarily, a plaintiff must be able to show that their interests are directly involved. Again, a lawyer can tell you whether you have standing, e.g., you have children in a school district that is pursuing a policy or practice that it is illegal or puts children at undue risk. One may have standing if a legislative body passes an unconstitutional law. Civil rights organizations regularly file lawsuits against cities, counties, and states that enact laws that contradict the Constitution of the United States. E.g., should Congress enact a law forbidding Americans to criticize members of Congress presumably every American would have a prima facie grounds for contesting that law in a federal court.

Litigation is hard. It is expensive. It is slow and frustrating. Let us imagine that your organization has a case, standing, and funds and thus begins to file suit against some agency. There is research to be done. What are the relevant legal precedents in this field, i.e., what, if anything, have other courts said about his question? Where is the appropriate court to file suit? These and many other questions must be answered. If a court determines that there is a case and that the plaintiff has standing, the judge will ask for briefs from the lawyers (on the history of the matter, i.e. who did what to whom, when, and the legal precedents). There is discovery,  hearings, postponements, and more hearings. When the case finally goes to trial, it make take one day or it may take a week. After that, there is more waiting for the court to make a decision and to issue a ruling. However, the court rules one side or the other is likely to appeal and then the case turns to procedure—did everyone follow the rules in the first trial? Altogether, depending upon how the case proceeds, how long the funds hold out, and the willingness of the parties to continue, it might take years for a case to get to court and be resolved.

There is no guarantee, in this world, that a righteous case will prevail. This is why a good lawyer will give you honest advice from the beginning. There are good cases that, for a variety of reasons, are unlikely to succeed. Depending on the relevant courts, a just case may not be able to find a sympathetic court or jury. The composition of courts varies. E.g., in recent years a three-judge panel in the Ninth Circuit has voted one way on some civil rights cases only to be overturned by the whole circuit sitting en banc. The United States Supreme Court (SCOTUS) receives many requests to hear cases on appeal but the SCOTUS can only hear a relatively few cases in any term. The court regularly votes not to hear cases because they are not “ripe,” i.e., the case is not ready for their consideration or perhaps because the court simply does not want to tackle an issue. It took fifty years for SCOTUS to overturn its own rulings in Roe v. Wade and Doe v. Bolton even though it was fairly clear that Doe and Roe were badly decided. The same is like to happen with Obergefell v Hodges (regarding same-sex marriage), which was equally badly decided.

Further, it is difficult to sue an agency of the government, which, reasonably has broad immunity from litigation and more money to defend itself than your organization has to litigate. A state has a whole army of lawyers to defend its decisions. The federal government has a phalanx of lawyers to defend whatever it does. Further, an agency must have a certain protection from constantly defending itself in court. Imagine if a police officer was subject to being sued every time he wrote a speeding ticket. Of course, civil life would become even more chaotic than it is now. So, any suit against an agency must overcome the general presumption of immunity. It can be done but it is difficult. It requires patience.

Final Thoughts

I have presented this series for two reasons: first, to demonstrate that nothing about distinguishing between the two spheres of Christ’s sovereign administration of all things requires what the TheRecons (theocrats, theonomists, Reconstructionists, and Christian Nationalists) deride as “quietism” or “Pietism.” Perhaps they have forgotten the words of the Apostle Paul? We are to pray for “for all people, for kings and all who are in high positions” in order that “we may lead a peaceful and quiet life, godly and dignified in every way” (1 Tim 2:1–2; ESV).

Second, these points provide an alternative way of thinking about our place in a post-Christian culture. The TheoRecon program of pamphlets, posts, and podcasts may be exciting but it is really nothing more than posturing and cosplay. Let me illustrate. The other day, somewhere on social media, I watched two men run an obstacle course. One of them was a United States Marine. The other was an impressively muscled body-builder. I thought that the weightlifter should have no trouble with the course. The whistle blew and the men began. The Marine, despite being smaller than the weightlifter, completed the course swiftly and efficiently. He had functional strength. He had experience and skill, the virtue of which we have discussed in this series, and he was strong where he had to be to get the job done. The weightlifter finished the course but only slowly and awkwardly. The Marine was ready for combat. This is the difference between setting fires in November and actual constructive engagement with other citizens to improve the life of the community.

Four of these five points may not be your calling but you can and must pray for those whose calling it is to serve as God’s ministers of temporal justice. Serving as a minister of secular justice is an important and good calling. It is a hard and frequently thankless calling. Few Americans have ever read a law let alone drafted one. Running for office, lobbying, sitting in committee meetings, only to lose an important vote on the floor of a legislative assembly is frustrating and even disheartening but the process is important. In God’s mysterious providence, we in this country have been blessed with the liberty to govern ourselves through representative government. Perhaps the Lord is calling you to this work? If so, I hope that this primer provides some encouragement and perhaps even some guidance to future service. If you find yourself serving in this way, may the Lord bless you with wisdom, courage, mercy, strength, and grace and whatever else you need.

©R. Scott Clark. All Rights Reserved.

You can find this whole series here.

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Post authored by:

• R. Scott Clark

  

  R.Scott Clark is the President of the Heidelberg Reformation Association, the author and editor of, and contributor to several books and the author of many articles. He has taught church history and historical theology since 1997 at Westminster Seminary California. He has also taught at Wheaton College, Reformed Theological Seminary, and Concordia University. He has hosted the Heidelblog since 2007.

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