The Five Stages of Brief

Welcome to Motion Sickness! This article was published in the 2017 Winter Issue of The Gavel, the quarterly magazine published by the Orange County Trial Lawyers Association. It seems like as good a piece as any to be the inaugural Motion Sickness post. It also serves as a good description and announcement of me, who I am, what I do, and why I love what I do.  

THE FIVE STAGES OF BRIEF

It is conventional wisdom that there are multiple stages of grief – a set of emotional obstacles to navigate after a significant loss in an attempt to heal and cope. I go through a similar emotional journey every time I am faced with writing an important legal brief. When served with a Motion for Summary Judgment, or faced with the appeal of a soul crushing loss for a client, I immediately brace myself for the emotional turmoil to come.

I used to attribute these emotions to inexperience and insecurity, and I truly believed that at some point I would feel nothing when large boxes of documents were brought into my office. (Denial.) I mean, it is just work, right? (Bargaining) Five years in, I realize that I am never going to be able to emotionally detach myself from the job (Acceptance). And that is OK. In fact, I have embraced this emotional roller coaster, because it makes me a better writer and a better lawyer.

            I know I am not the only one who fights this battle with myself with every major project. But this is how I cope. Of course, this is not a linear journey, and each of these stages may rear its ugly head at any time during the writing process – multiple times. The important thing is to acknowledge each stage, allow myself to feel it, and then find a way to move on.

DENIAL – Panic, Fear and Feelings of Inadequacy:   

Every time I read a demurrer or glance through the table of contents of an appeal or a summary judgment motion, my stomach turns - even when I knew the motion was coming and had been preparing the entire case in anticipation of it. My thoughts go something like this:

"OMG. Defense is totally right. We are completely screwed. How will we ever get past this? How am I going to tell the client that the judge ordered the case dismissed? Is my malpractice insurance paid up? I hope I don’t get reported to the Bar." 

When I calm down and get a little more rational, I realize I have this exact same panic attack every time. So, I take a more critical look at the motion. Then, I have another list of panicked thoughts:

OMG. This is such a big job. How will I ever get this done on time? What’s going to happen to all my other cases and responsibilities while I work on this? Will I ever sleep again? I will never see my daughter again - that “Cats in the Cradle” song is going to be my life!

Then I calm down (again) and get a little more rational (again), and realize I have this secondary panic attack every time too. “I can do this,” I tell myself. “No problem.” This is denial – a coping mechanism to protect me from fully feeling all the pain and intensity that is to come.

Generally, attempting to escape from the writing process only hinders me and of course my client. I have to get through it, and the sooner I get started, the better. So I pour a glass of wine, (sometimes tequila), or more often than not, get out the big bag of M&Ms and move on to the next emotional stage of brief.   

DEPRESSION – Anxiety and Isolation:

When I think about all that is going to be involved in tackling a big project, I become simultaneously depressed and anxious. This is not oxymoronic. It is a normal reaction to the nightmare I am about to enter. Briefing is an overwhelming practical and logistical process (do not even get me started on the MSJ’s separate statement). There are a lot of details to get right, and a lot of moving parts.  

This is not a planning stage. It is a feeling of being overwhelmed and worried. Acknowledging it and allowing myself to really feel the weight of the project is necessary to steel myself for the battle ahead. And not just feel it – wallow in it. Embrace the suck, as we used to say in the Army.

Coworkers and bosses may think that this stage goes on too long. I try not to be swayed by their critical comments like “get over it” or “I’d like to see a rough draft soon,” or “slippers are not suitable office footwear.” They mean well, but encouragement from others is not helpful to someone who is depressed and/or anxious. I have to work through it on my own - within reason, of course. There are court deadlines to consider. Feel it, embrace it, and then dismiss it.

BARGAINING:

As far as grieving goes, intense feelings of remorse or guilt may interfere with the healing process if I do not participate in some bargaining – rational or not. Bargaining is a manifestation of helplessness and vulnerability and shows a need to regain control. The silliness and ridiculousness of some of the “bargains” can help me face reality and move forward.

For me, bargaining happens at many different times in the writing process and usually comes out like this:

If only I had started research earlier…. If only I would have found this case sooner, it might have changed the entire way I approached this brief… OR (more often) If only I had not gone to that happy hour….  

Or like this:

Dear Sweet Baby Deity: If you please have that expert fax over the signature page of his declaration right now, I will…. If you please make tech support answer the phone on the weekend, I will …. If you please just help me get through this on three hours of sleep, I swear I will not procrastinate on the next one. 

Or like this:

Dear Sweet Baby Paralegal: If you please format the table of contents and table of authorities and check the citations for me in the next hour, I will buy you lunch.

ANGER – Righteous Indignation, Vanity, Euphoria:

This is my favorite emotional stage of brief, and it is the part of the process that makes experiencing all the other stages worth it. It usually happens while I am in the throes of the actual writing – when I’m trying to think of the best ways to articulate just how wrong defense is about the law. Thinking of that one perfect zinger that will crystalize the issue and show (not tell!) the court why I win, is the dragon I am always chasing.  

There really is nothing to compare with the thrill of righteous indignation. My heart beats faster, I get rosy cheeked, and I cannot sit still. Ask anyone in my office who has seen me in this manic state how much I come to life in this stage. It is one thing to know I am going to win. It is quite another to know I am going to win because I am RIGHT. Justice will prevail!

Sometimes, the anger irrationally turns on the client, and this is not quite so euphoric. Why did the client do that thing? If the client had only done this other thing instead, we would not be in this position, and I would not have to have this fight. Then, of course, I feel guilty for not being loyal to my client, and then I get even angrier. It can become a vicious circle and sometimes it is difficult to exit that merry-go-round.

When my thinking gets circular, I try to re-direct my anger to the appropriate party – defense. I sometimes move to another portion of the brief until I can get some distance and address it again later.

Whatever I do, I always imagine defense as Goliath. Nothing lets me become righteously indignant like the vanity of imagining myself as David with a sling full of sharp words. If I feel the anger and channel it appropriately, my wit is whittled to a sharper point, making it a deadlier weapon. Kill, kill, kill!!  

Then I go back and edit. A lot.

ACCEPTANCE – Reality Check:

Reaching the acceptance stage of brief is a gift not afforded to every writer or every project. It has eluded me on several occasions. Without acceptance, I am still irrational and less likely to see the big picture. Tunnel vision is not a good way to go into to an oral argument. Believe me, I know.

Acceptance is not a period of happiness and satisfaction. It is not even certainty of victory. It is more like calm and a feeling of “I did the best I could.” Acceptance even sometimes turns into another round of denial – a belief that I have learned and grown through this process, and next time around, I will not make the same mistakes.

So why do we, as attorneys, do this to ourselves? Why go through this nightmarish ordeal? The obvious answer is that we have to if we want to keep our jobs. But of course the real answer is that we do it for the same reasons we went to law school and became trial attorneys in the first place. Because we believe in the greater good. Because we believe in justice. Because we believe in writing wrongs. (See what I did there?)

I am an emotional being. Rather than stifle that I have learned to use my emotions. Being in touch with my emotions helps me better empathize and feel what my clients have been through. That translates into my writing, and that is a merry-go-round I will ride all day long.

And honestly, that euphoric high in the middle of the anger stage is enough to fuel anyone’s passion. So I send the brief off with the attorney service, take a deep breath and go out for a nice rewarding lunch. And I secretly hope that I get served with the next big project while I am out. I always want another chance to slay Goliath.