Understanding the stages of brief

Like so many, we spent a significant portion of the covid pandemic working remotely from our one-and-a-half-story home in south Minneapolis, utilizing whatever space we had available as an office. Although we are grateful for that time, we grew far too familiar with each other’s work idiosyncrasies (read: bad habits). 

Cassie learned that Finn is likely to save his physical to-do list before his family in a house fire (only marginally kidding), while Cassie relies on an electronic calendar to organize her schedule. Finn learned that Cassie needs music to write, while he needs complete silence (good luck getting that with three kids and two dogs). We also learned that we undergo the “stages of brief” whenever we tackle any substantial writing project. The stages, derived from the five stages of grief (denial, anger, bargaining, depression, and acceptance), can be applied to nearly any significant project that a young attorney may encounter.

The first two stages, denial and anger, hit hard and fast. The moment you get the e-service notification, the feelings of inadequacy set in. What did I do wrong? Did I miss a dispositive fact? A case? Should I even be a lawyer? These feelings quickly shift to anger when you realize that in fact it’s opposing counsel that has it wrong. How could they even bring this motion? It’s procedurally deficient. It ignores a key issue. Is this sanctionable? How dare they. 

Once you start your research, you begin to bargain. With yourself, with precedent, with your facts and opposing counsel’s position. Unless you are lucky and find that case that is directly on point (you know, that one your partner told you exists and demands that you find), you find two dozen cases that any good lawyer could either argue in your favor or distinguish. You can’t see the forest for the trees. 

After conducting extensive research and thoroughly reviewing and coming back to the relevant cases at least four times, you may start to feel overwhelmed, disheartened, lost in the weeds. Depression sets in. Clearly, since not every fact is in your favor, you’re going to lose. 

Finally, there comes a point of acceptance. If you have done your job correctly, your level of understanding and knowledge of the issue (and likely the case) surpasses that of anyone else, including your client, opposing counsel, and certainly someone who is picking up your brief for the first time. The running joke in our household is we no longer ask if the other has finished drafting their brief; we ask if they will win. When the answer is an unequivocal and immediate “Yes,” preceded by an explanation as to why, then we know they have completed the task. In fact, the number of seconds it takes to respond is often a good indicator of how much longer the process will take. 

This is also the phase where it is crucial to acknowledge that, as lawyers, we tend to be very hard on ourselves—and to remember that our job is to make the best out of the facts and the law as they exist in this current moment. Sometimes that means you’ve done the best with what you have. That is when you are finished.

Obviously each individual’s approach may vary, but the gist is that it is common to experience self-doubt at some point during the writing process. So what measures can new lawyers adopt to ease the writing process? Here are some practical pointers:

  • Do not procrastinate, just start writing. Getting started is half the battle, and it’s less daunting to revise imperfect writing than to have nothing at all. You’ll thank yourself later on. 
  • Don’t let the perfect be the enemy of the good. Once you start writing, avoid spending an excessive amount of time perfecting one sentence. Just go ahead with your ideas. You can always go back with fresh eyes and make necessary revisions later.
  • Don’t reinvent the wheel. Ask your colleagues for sample documents or find ones online. This saves you and the client time and money and gives you a solid starting point.
  • Know when you are done. After seeing a case four times, you’re likely done researching that issue. It is too easy to vanish down a research rabbit hole. 
  • Tailor your writing to suit your intended audience. Even when drafting legal documents for the court, avoid incorporating unnecessary legal jargon or complex terminology.

So when the next assignment crosses your desk, don’t fret. Open up your favorite research tool, your Word document, and start chipping away. 

Cassandra (Cassie) Jacobsen is an associate at Cozen O’Connor, focusing on complex commercial litigation and advising employers on a variety of employment issues.

Finn Jacobsen is a partner at Smith Jadin Johnson PLLC, providing guidance to his clients on all issues involving homeowners associations.