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Litigation skills can dramatically improve an immigration practice. Let’s begin by explaining why and then how to add federal litigation to one’s practice.
First, litigation skills provide immigration law firms with true full service capabilities. With the addition of a real litigation threat, immigration counsel can deepen their relationships with clients and provide the one-stop shopping experience that so many of them appreciate. That single source option also gives clients and counsel more control over any legal matter – wherever it may lead.
Second, the ability to harness some court-room skills come with certain bragging rights. The ability to defend or prosecute claims in court enhances an attorney’s reputation as a fighter and – whether warranted or not – matches most people’s concept of a TV “trial” lawyer (even though trials are rare). Also, even if you never have to actually litigate, knowing that you can if need be has a profound psychological effect on both counsel and client.
Third, adding litigation options to your immigration practice is not really optional at this point. For better or worse, litigation is now a material component of immigration law practice. In fact, even if client and counsel decide that litigation is not appropriate given their unique circumstance, an informed decision will still require a discussion of what litigation would entail. An experienced lawyer will therefore need to advise clients as to the pros and cons of litigation, what is possible, what is not possible, what is likely and how much clients stand to gain, pay or lose in the process.
Fourth, and perhaps most importantly, having litigation skills enables counsel to get clients what they want most – fair results. This plays out daily in the thousands of immigration applications that are long-delayed or wrongly-denied.
Right now, the U.S. immigration system is severely backlogged. Applications that should take months to decide, routinely take years. This logjam exists notwithstanding the fact that applicants pay handsomely to have their benefits adjudicated and the law requires timely responses – in some cases 30 days. Well-meaning immigration counsel will press their clients’ applications through letter-writing campaigns, seek out Congressional help to speed things along, but ultimately advise their clients to be patient. This is precisely where litigation comes in.
Faced with long-delayed and undecided immigration applications, immigration firms with litigation skills can truly advance their clients’ cause and take the necessary next steps – sue the government. Pursuant to a Writ of Mandamus and the Administrative Procedure Act, applicants can file a lawsuit in federal court and seek an order compelling the government to make a decision on these long-delayed applications.
With these skills, immigration lawyers can sketch out a litigation strategy, review the pros and cons with their clients, craft a winning complaint and negotiate with the government’s lawyers. Even if the decision is to continue waiting, clients nevertheless deserve the advice and the opportunity to make an informed decision.
So how do immigration lawyers acquire these skills and – at a minimum – properly educate their clients? There are a few ways. First, counsel can collaborate and co-counsel with experienced litigators. With the client’s consent, the attorneys can work together, share any fees and jointly benefit the client. Second, counsel can develop in-house capabilities by hiring litigators or training their own staff (and themselves) on how to litigate these matters. Finally, they can simply refer out litigation matters to experienced and trusted litigation counsel. However, even where referring the matter out, it still pays to learn something about the litigation process so as to properly vet cases and prep clients for the possibility of filing a lawsuit.
How, and the pace at which, an immigration lawyer goes about adding litigation to their set of skills requires self-awareness, business judgment and determination.
Whether to add litigation capabilities to an immigration practice, however, is a no brainer.