On Winning and Losing: What Public Interest Litigation is Fighting For

By Stephanie Keleman, J.D. ’22
Via LSC Blog

I lost my first appeal, and I am not sad. Over the course of a year, I put my blood, sweat, and tears into the written brief and oral argument, and still, I am not sad. But it is not for the reason you think. It is not because the experience of appealing a case from start to finish, almost entirely on my own as a student, was invaluable—which it was. I am not sad because this appeal was about much more than winning the case—this appeal was about giving my client dignity and representation in a system that enables widespread oppression of marginalized people. And it took losing for me to see that.

When I joined the Domestic Violence and Family Law Clinic, I imagined I would represent clients in proceedings to obtain restraining orders to protect them from their abusers. I envisioned myself sanctimoniously marching into the courtroom—or more accurately, clicking the “join Zoom” button—armed with the conviction that I could and would save my client. But it did not happen that way.

Just a few weeks into the semester, I received notice that someone had obtained an ex parte restraining order against one of my clients. In the ten days leading up to the extension hearing (a trial where the judge determines whether to make the restraining order last for a year), I learned every detail about the relationship between my client and the plaintiff, my client’s relative. I learned about the abuse my client had suffered at her relative’s hands. I learned about the racist and derogatory names her relative called her. And I learned of the lengths my client went to in order to earn this person’s respect.

These facts, as painful as they were to hear, revitalized my sense of self-righteousness. Despite representing the “defendant,” I was still representing the person I perceived as the “victim”—I just had to find a way to make the judge see that. When the judge ultimately declined to extend the restraining order, I took that verdict as an affirmation of my perception.

There was just one thing. Just because the judge did not extend the restraining order did not mean that the initial ex parte order went away. Sure, the ex parte order expired on the day of the extension trial, but the record of the order would remain as a permanent asterisk next to my client’s name. A restraining order of any kind can be like a scarlet letter—labeling the subject as an “abuser” and serving as the basis for hiring decisions, harsher treatment in the criminal justice system, and exclusion from community organizations. Though collateral consequences were unlikely in my client’s case, the lingering record had the added effect of serving as a reminder of the ugliness she had been working so hard to escape.

That is where the appeal came in. I wanted to give my client the chance to heal and move forward, but more importantly, I wanted her to have the external validation of the legal system admitting it made a mistake. Winning the appeal would mean the court would order the destruction of all records of the initial restraining order, removing the order completely from her history. Understandably, when I informed my client of this opportunity to clear her name, she eagerly accepted my offer to continue working on the case. She did not want to give up—even if it meant waiting many months, and perhaps even over a year, for the appeals court to issue a decision.

Since my client did not have the opportunity to attend the ex parte hearing (in line with standard restraining order procedure), the trial court record painted her in an extremely unfavorable light. Even so, I felt that the judge did not have a legal basis for granting the ex parte order. The legal standard for obtaining a restraining order is higher than you might expect. Unless they have previously been physically harmed by the defendant, the plaintiff must prove that they are in imminent fear of serious physical harm. And that fear must be objectively reasonable. But for an appeal, that meant arguing none of the claims the plaintiff made, no matter how irrelevant or out-of-touch, supported the judge’s issuance of the order. More than that, I had to argue that the judge’s decision was so unreasonable that it rose to the level of an abuse of discretion.

As I sat down to draft the brief—the only appellate real brief I had ever worked on—I was propelled by my desire to be my client’s hero. I diligently put on my “appeal hat” and addressed the legal merit of each of the plaintiff’s claims, rather than the veracity and credibility of her claims of being in fear of my client. It was obvious to any reasonable judge, I thought, that the conduct alleged in this case was far outside the standard set by past cases.

But when it came time to prepare for oral arguments, I started to wonder if I was critical enough of my own position in the brief. As much as I tried to forget everything I knew about the case that was not a part of the appellate record, I think I drank the Kool-Aid. Luckily, six wonderful practitioners at LSC agreed to help me moot the case, and they were not shy about pointing out the weakest areas of my case. My pretend judges’ critical eyes, along with the opportunity to debate the more delicate nuances of the case, enabled me to confront “bad facts” head-on. Up to that point, my own conviction in the case was my biggest hinderance.

I went into oral arguments with laser focus and a strong desire to win. I knew my client would be watching, and I wanted her to see me passionately fight for her. As the judges flung the “bad facts” at me, I caught each one and served them back neatly on a platter of caselaw. I am sure it was not perfect, but I hoped I was nimble enough to convince the judges to side with me in what I was increasingly viewing as a difficult case.

I was sitting in the Roxbury Municipal Courthouse when I received the email with the appellate panel’s decision. Nearly a year had passed since I started the appeal process, and I was now representing criminal clients in Harvard’s Criminal Justice Institute clinic. I had unexpectedly found myself in court that day when six warrants went out for my new client’s arrest, and I was waiting to make an argument to the judge that my client should not be taken into custody. But I couldn’t help myself—I had to open the email to see if my efforts over the past year were wasted.

I instinctually skipped to the end in search of the conclusion. There it was: “the order is affirmed.” The words hung there with brutal finality, mocking me with their lack of emotion. I thought about how badly I wanted to win and how my failure will impact my client. But at that moment, I had to take a deep breath and put my phone away. I was needed by another client.

A few nights before the arguments, a close friend said to me, “whether you win or lose, you are showing your client that you care, that you believe her.” At the time, I brushed the comment off as merely a comforting remark by a friend, rather than an insightful reflection by a fellow attorney. But as I parsed through my feelings of having lost a year-long appeal of an expired order I started to see how my focus on “winning” was somewhat misguided. Sure, in the grand scheme, all I was fighting for was to vacate a temporary order that already expired, a relatively small ask when compared to loss of liberty in my criminal case. So why did I dedicate so much more time to the appeal? And was all that time ultimately wasted?

I believe the answer lies at the heart of what makes public interest litigation special. Yes, the result of each case is important because results impact our clients’ lives. But there is also meaning and value in providing high-quality representation to people who cannot afford it when that representation means pushing back against a system that perpetuates injustices. Sometimes the things we are fighting for are merely symbolic, such as being listed on a partner’s death certificate, as the named plaintiff was in the landmark Supreme Court case that created the right to same-sex marriage. That is because the legal system implicitly ascribes societal value, and by challenging the legal system’s treatment of our clients, we can challenge society’s treatment, too. As long as the things we are fighting for matter deeply to our clients, then it matters that we fight for them—even when the battle does not end in victory.