- It’s not easy to develop a completely new type of practice when you’ve largely been focused on a very specific niches.
It’s not easy to develop a completely new type of practice when you’ve largely been focused on a very specific niche for three decades. While I’m an immigration lawyer through and through, our practice has been focused strictly on the administrative side of the practice. We never engaged in litigation except for the occasional writ of mandamus we would file for a delayed case. And even those small matters were typically referred out. Since 2020, however, our immigration firm has become known as having one of the best federal litigation practices in the country, and in June 2020 we shared the annually bestowed American Immigration Lawyers Association Litigation Award for helping to reshape the litigation space for the immigration bar.
In this column, I’ll review how this transformation happened and offer some lessons for firms looking to break into new practice areas.
In early 2020, two friends at other firms and I were commiserating over the need for the immigration bar to be more proactive in litigating against policies we believed were illegal. The problems were typically that it was tough getting clients willing to sue and tough finding the financial and staff resources to take on the matter. I mentioned that I felt confident that with my very large Twitter following I could find plaintiffs, but our firm had no experience with mass cases and lacked the expertise or resources to take on these cases. The other firms had the opposite issue—lots of expertise in managing federal suits, but no easy way to find clients willing to sue. And none of our firms were particularly large and could throw a lot of lawyers and staff into these high-impact cases on more than just an occasional basis. But we thought if we could co-counsel, we might be able to make it work.
Shortly after this conversation, an opportunity to team up arose. During the height of the COVID-19 pandemic, several actions were taken by government agencies and officials that resulted in devastating harm to thousands of immigrants and their families. In early 2020, a series of presidential proclamations was issued, which essentially stopped legal immigrants from entering the United States due to the pandemic. During this time, the U.S. Department of State also ceased processing nearly all immigrant visas. In response, we decided to sue over the failure of the administration to adjudicate Diversity Visa applications for people around the world. The case, Aker v. Trump, was filed on behalf of nearly 100 plaintiffs, and we were successful in getting a decision in the D.C. District Court to force the government to adjudicate our plaintiffs’ cases and also to reserve 9,000 visas for others in a similar situation. The case made headlines and created a lot of buzz in the immigration bar.
Very soon after this, we filed a case on behalf of 900 fiancées and fiancés of U.S. citizens dealing with visa bans and endless delays at consulates around the world. We also met with success in that case and then were relentless in filing cases on behalf of thousands of other individuals, companies and institutions over the following months.
We have now filed more than 25 of these mass federal suits.
So, how did we pull this off? First, we realized that if we couldn’t do it on our own, we could split our resources and spread out the risk by teaming up with other firms. We each brought different things to the table, and together we could do what none of us could do on our own.
Second, we focused a lot on the marketing of our litigation team and our cases. We created a brand for our joint venture— IMMPact Litigation. Simple, but it conveys both that we’re focusing on immigration cases and that the cases are high impact ones designed to produce changes affecting a group broader than just our individual plaintiffs. We set up a website (immpactlitigation.com), which has been key not just to telling our overall story, but also in the marketing of our individual cases when we have been searching for plaintiffs.
Third, we were very strategic in the use of social media in building awareness for the onboarding of our cases and communicating with all our plaintiffs. Twitter, LinkedIn and Facebook were all key as we talked about the issue that’s the basis for the case, tagged government officials to urge them to fix the problems and engaged with journalists (especially on Twitter) to educate them on the issue. We did market research on social media to gauge interest in an issue, including creating forms to get more information about the nature and scope of the problem we were considering litigating. Chuck Kuck and I, two of the three lawyers in our trio, have more than 100,000 Twitter followers combined—the result of many years of being active on the platform.
We created a YouTube channel and started a weekly livestream to talk about our cases and answer questions in a public way. We also created private Zoom events for our plaintiffs. We added a StreamYard account, which allows our livestream now to go out to not just YouTube, but also to our lawyers’ individual Twitter, Facebook and LinkedIn accounts. The broadcasts usually have three or four of our lawyers participating and are a lot of fun. We typically get dozens of questions, which we plow through during the calls after providing updates on each of our cases.
Fourth, we leveraged technology to be able to manage onboarding plaintiffs, and this has been a lifesaver when it comes to quickly getting people processed and in the case. I’ve previously written about how we’ve created expert system apps using the artificial intelligence tool Afterpattern, now called PatternBuilder. We’ve used that software heavily in our cases. This includes setting up a screening interview for prospective clients that then leads to the generation of an engagement letter, the payment of a flat fee to be a plaintiff (except in our pro bono suits) and the production of a plaintiff declaration. All that information flows into a database that our lawyers can use to more quickly produce the litigation documents. We also developed data-scraping tools to pull information from government websites to monitor the progress of our individual plaintiffs. The American Bar Association took notice of this and awarded IMMPact the James I. Keane Award for technology innovation at the annual ABA TECHSHOW.
The IMMPact venture has been a financial success as well, and we’ve developed an economic model where we can charge a flat fee per plaintiff that’s considerably less than it would cost to sue individually. So, it has made it possible for many people to benefit from litigation who would otherwise not be able to afford to sue.
Finally, we’ve been able to do what we set out to do: produce change. We’ve forced the government to change its practices because of our litigation. We have also encouraged a lot of other lawyers to be less afraid of litigating when the government is obstinate and refuses to do its job.