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Did you know? Sometimes in a constitutional case, a court can award a plaintiff's attorneys' fees to be paid by the defendant.
Takeaways

It is not uncommon for a person to feel that their constitutional rights have been violated.  The United States Constitution guarantees basic fundamental rights and, while the Constitution provides the protection for these rights, these rights are sometimes violated.  When this happens, some of the violations can be addressed in court or through some other avenue. However unjust as it may sound, every violation of an individual’s constitutional rights does not automatically give rise to a cause of action that can be pursued in a court of law.  As a result of this, the area of constitutional law is quite complex.

Given the complexity of constitutional law and the pitfalls that can be encountered when pursuing a claim, it is imperative that any individual who potentially has a cause of action for a violation of their constitutional rights consult with a qualified attorney to fully explore their claim.  Given the intricacies of this area of law, the selection of a constitutional law attorney is crucial to any claim.  It is also a decision that needs to be carefully considered as changing attorneys in the middle of a case can slow down the progress of your case and can also potentially damage your claim. 

When there is a potential violation of your constitutional rights, the first step in the process of pursuing a legal claim for the alleged violation is to determine if there has been a violation of your rights.  This is the first step where the role of a constitutional law attorney is critical.  An individual may believe that their rights have been violated – and they may be correct; however, they may be incorrect, a mistake that could be costly for them.  As well, simply because a violation has occurred does not automatically mean that there is recourse available or that a lawsuit may be filed. 

For the constitutional rights of an individual to be violated, there has to be some action on the part of the government.   An easy way to understand this concept is in the context of the Fourth Amendment.  Generally, the Fourth Amendment protects an individual from unlawful governmental searches and seizures.  One protection afforded by the Fourth Amendment is that anytime a governmental entity, such as a law enforcement agency, wants to search an individual, their property or their home, without some exigent circumstances, a warrant is required.  If a judge issues a warrant, then the governmental agency can then execute a search within the parameters of the warrant.  Should a governmental agency engage in a search without a warrant, there may exist a violation of certain constitutional rights.  The individual who was the victim of the illegal search may have a claim against the agency that conducted the search.  However, say this same individual finds not the government, but his neighbor searching through his personal belongings.  Some may believe this to be a violation of the individual’s constitutional rights; however, this is not the case.  While there may be a cause of action against the neighbor for trespass, as long as the neighbor was not acting as the agent of any governmental agency, there is no constitutional violation.  With the aid of the constitutional law attorney, it will be possible for an individual to determine if there has been a violation of their constitutional rights by providing the facts relevant to their particular case.    

The attorney will also be able to explain the nuances of constitutional law and when it is advisable to pursue a claim.  For example, simply because a governmental agency or entity engages in some conduct that is in violation of a provision of the constitution does not automatically give rise to a cause of action that can be pursued in the Courts.  There is a concept known as “sovereign immunity” which gives the government immunity from a wide variety of conduct.  However, Congress has provided the right for individuals to sue for an equally wide variety of inappropriate governmental conduct.  While it can be difficult to bring a lawsuit against a government agency, many people may not realize when their constitutional rights have been violated.  For instance, while a governmental entity can exercise a concept known as “imminent domain” and take private property for governmental use, the taking need not be by a court or a legislative body.  If a quasi-governmental agency such as utility takes property, it is governmental action and the private citizen is entitled to compensation or else their rights may have been violated.  As well, the action by a government need not be by an agency, but may be by an individual acting on behalf of the governmental agency.  Having a constitutional law attorney examine your case will allow you to fully understand what has happened, if the government was involved and if your rights have been violated.

While it may sometimes sound like bringing a lawsuit against the government is impossible, the opposite is actually true.  However, as it is a complicated process, it is imperative that any individual retain a competent attorney to assist them with their claim.

The first rule to adhere to when hiring a constitutional law attorney is to locate an attorney that has a substantial amount of experience.  Unless the attorney works for an established firm, avoid newly licensed attorneys claiming to be constitutional law experts. They may know the law, but they have yet to see how the law is applied in the courts.  At a minimum, you want a firm that has handled constitutional cases.  Frequently associates and younger partners in larger firms provide representation that is equal to or superior to those of more senior members of the firm as the younger members are reviewed based upon their performance, frequently making them more eager to perform and excel on cases.  Often when a person has an attorney referred to them, they find the attorney is not taking cases or it may be sometime before an appointment is to be had.  If you find this, ask the firm if there is a younger member of the firm that handles such cases.  You also want an attorney who has staff and financial resources sufficient to support your case.  Constitutional cases can be paperwork intensive and attorneys with limited resources can become overwhelmed.  While it is not unusual for an attorney to practice in more than one area, if there are too many practice areas, the attorney may lose focus and end up without time or attention to devote to your case.  The attorney should also be able to provide a comprehensive overview of how your case will proceed.  Perhaps more crucial is that you want the attorney to be able to address any potential weaknesses in your case, together with the strengths.  You want to avoid representation from an attorney that promises you the sky only later to inform you that you never left the ground.  Make sure that the attorney you retain can address the totality of your case and help you prepare for the weaknesses that may be brought to light.  Use these points as a checklist, but at the end of the day, even if the attorney meets or exceeds the points raised here, make sure you are comfortable with them.  As well, when you are interviewing potential attorneys, don’t be afraid to ask the attorney for references of other constitutional law attorneys.

A constitutional claim rarely goes straight to court.  Initially, there will likely be a complaint that is filed with the governmental agency that engaged in the inappropriate conduct.  Following this, there will be an administrative process that has to be pursued within the agency.  Only after this administrative process is exhausted will the matter then be ripe for appeal to a court of law.  The attorney should not only be able to explain this, they should also have experience dealing with administrative issues.  You will also want an attorney who can explain and can operate within the applicable time limits.  While an individual’s constitution rights may have been violated, once this violation is apparent, there is a time frame known as a “statute of limitations” that provides a period of time by which a claim MUST be filed.  If the statute of limitations expires, the claim is lost. 

Given that the selection of a constitutional attorney can be so crucial to the protection of an individual’s rights, some homework and initial documentation on the part of the potential client is very important to the ultimate case.  You also want an attorney that is familiar with the kinds of relief that may be available to you.  In some cases, monetary damages may be awarded, in other cases; injunctive relief may be granted, meaning that an order will be issued compelling the government to cease any conduct they may have been involved in.  As well, some statutes allow for a Plaintiff to recover attorneys’ fees from the government so as to have their attorney compensated at no cost to the Plaintiff.

While the selection of an attorney may perhaps be the most important part of your constitutional case, there are things you can do in advance of retaining the attorney to greatly benefit your case.

If you think that there has been a violation of your constitutional rights, begin to document everything that occurs.  Save correspondence and emails.  Take notes when you talk to representatives of the government, in person or on the phone.  As constitutional cases are so document intensive, it will be extremely important to your case to begin this documentation as soon as possible.  If you feel your rights may have been violated, start to ask around and talk to other individuals who may have experienced similar conduct. This will give you a better understanding of the process and help you to understand if a violation has, or is occurring.  If you are dealing with a governmental agency, directly ask the agency their procedure for filing a complaint and any time limits. Also, remember that while you are attempting to gather evidence for your case, evidence may also be gathered against you.  Be careful what you say and what you commit to writing. Most importantly, as soon as you feel your rights may have been violated, start looking for an attorney.  It will be unlikely that an individual will know the name of a constitutional attorney off the top of their head.  In order to find one, contact your state bar association and ask for the name of constitutional attorneys.  Search sites such as FindLaw or Martindale Hubbell to locate an attorney.  These are sites that allow searching by geographic and/or practice areas.  Talk to other individuals that may have experienced similar conduct.  Ask any attorneys you know for the name of any constitutional attorneys they may know.

While the area of constitutional law is a complex area of law, there are many quality attorneys who practice this type of law.  With a little homework, should your rights be violated, you can find a quality to assist you with your case.

This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.