Here’s one that might make you feel better, particularly if you end up drawing the short straw in litigation: in The Upside of Losing, 113 Colum. L. Rev. 817 (2013), Professor Ben Depoorter writes about how winning may not be the “only thing” in public interest litigation.
Of particular interest to the readers of this blog is the section that begins on page 831, which focuses on the Kelo case and its aftermath. There’s one where the litigant didn’t win in the Supreme Court, but the issue jumped to the forefront of the public consciousness:
What first resembled a resounding loss eventually became a victory of a different sort for the opposition to economic development takings. The history of Kelo illustrates that, as much as a plaintiff might hope to win a favorable verdict, substantial benefits also obtain in defeat. Fundamentally, Kelo and its aftermath suggest that certain disputes are worth litigating even if there is only a low ex ante probability of obtaining success in court. The history of Kelo illustrates that plaintiffs, as much as they might hope to obtain a favorable verdict, recognize that substantial benefits might accrue in defeat.90 It suggests that, if litigation has the potential to put into motion social and political support, certain disputes are worth litigating for the plaintiff, win or lose.
As has been recognized in the literature on social movements, litigation can play a unique role in stimulating public discussion. As one commentator described it, “a 20-page complaint and a temporary injunction are worth more than a 300-page report in the media.”
Id. at 832-33 (footnotes omitted).
Forgive us for being a bit skeptical, but it takes an academic to think like this. In our experience, clients hire lawyers in order to win their case, even in public interest litigation. So while “the opposition to economic development takings” can appreciate the current state of affairs, it’s probably only of scant solace to the former property owners in the Fort Trumbull neighborhood that their Supreme Court loss resulted in the raising of awareness, and legislative and judicial corrections. Does “I feel like the Constitution failed me” sound like someone who is ok with the decision, even 8 years later? Not to us. They’d probably rather have their homes. Thus, Depoorter’s advice to always look on the bright side of life rings hollow to us because it focuses more on the cause than the client.
Even with that caveat, however, the essay is worth reading, if only to maybe find a a silver lining in the result of your latest courtroom escapade.