1. Learning the Craft of Lawyering

The chapters of this book have explained the legal tools of substantive and procedural law needed for climate conscious lawyering. But any tools are useless if they are left unused in the toolbox. Effective lawyering involves not only selecting the tools from the toolbox that are most appropriate for the law-job at hand but also knowing how to use those selected tools skilfully. This is the craft of lawyering.^[1]

Learning the craft of lawyering is not an intellectual process but rather an experiential one — learning by doing. Learning by doing will be more productive when the learning is guided by experienced practising lawyers, rather than aimlessly wandering along a path of self-discovery. How, then, can this book provide guidance to assist law students in their experiential learning?

The answer, this chapter proposes, is to offer guidance on one of the key law-jobs that students will undertake once in legal practice of preparing and conducting litigation. Because this book is concerned with developing skills in climate conscious lawyering, this chapter provides guidance on a particular type of litigation, public interest litigation (PIL), seeking to catalyse action to tackle climate change.

What do we mean when we talk about PIL? PIL is a generic term for litigation brought in the public interest, and comes in all shapes and sizes. One definition of PIL is that it refers to ‘proceedings in which the public or the community at large has some pecuniary or legal interest’.^[2] Litigants choose the vehicle of litigation to achieve a desired outcome, and adopt a strategy to achieve this outcome. If the desired outcome does concern the public interest and is primarily related to the question raised by the litigation, then this is termed PIL. If the litigation is designed to achieve a broader outcome to reform law, policy or governance, beyond the question raised by the litigation, then this may be referred to as strategic litigation. The latter is the sense in which Durbach et al define PIL as being litigation ‘intended to achieve change to law and policy that will benefit individuals and communities beyond those directly involved in the campaign’.^[3]

This demarcation between PIL and strategic litigation makes no difference to the tips and techniques discussed in this chapter for running successful climate change PIL. These tips and techniques are grouped in time phases between two end points, what TS Eliot in his poem ‘The Hollow Men’ termed ‘between the idea and reality’. Expressed colloquially, these time phases are getting to ‘Go’, don’t pass ‘Go’, from the ‘get-go’, from ‘Go’ to ‘whoa’ and too far gone.