Abstract

This essay argues that lawyers have traditionally litigated class-action, structural and impact lawsuits in a manner that does not encompass plaintiff participation in the lawsuit. By comparing two relatively recent lawsuits – one a successful California class action lawsuit challenging prolonged and indeterminate solitary confinement in that state’s prisons, and the other a Guatemalan lawsuit in which two former military members were convicted of sexual violence against the indigenous Mayan population in a small Guatemalan town during the height of the Guatemalan civil war – this essay demonstrates that plaintiff participation is both possible and often necessary to successful impact litigation. The article also encourages lawyers and researchers to explore the possibilities and difficulties of plaintiff participation in these kinds of lawsuits. The last section of the article explores the Latin American roots of participatory litigation of the type cases represented by the Guatemalan and California cases discussed in the essay. Both of these cases can trace their roots to the theory of “accompaniment” practiced by the Latin American liberation theologians in the 1970s and 80s, which was transported by lawyers into litigation.

Keywords

Class action strategic litigation impact litigation participation plaintiffs decision-making