The hardest brief I’ve ever written

Last Friday, I was sitting in the waiting room of a fertility clinic with Regina when my phone buzzed. It was spam.

“You know, the last few days, every time my phone buzzes, I have a small heart attack. I keep thinking it’s going to be the Yahoo decision.”

Regina nodded. It was a case that had dominated a substantial part of our lives, especially after I left Cohen Milstein and began working on it by myself.

It had been a challenging case from the beginning, for many reasons, some of which I might write about in the future. Suffice it to say we got dismissed by the lower court twice, and the case was now on appeal.

But it was also challenging for more personal reasons, which I touched on briefly in an unpublished essay called “Proof of Life.” What I didn’t reveal in that essay, however, is just how trying an experience it was getting the opening brief in the appeal done, for both me and Regina.

Any federal appellate merits brief is a serious document that takes time, effort, and care to put together. This one would be arguing that the lower court judge had been wrong to dismiss my clients’ case–never an easy argument to win. The lower court judge here was highly respected, which added to the difficulty. The issues were novel and complicated, and involved an arcane area of law stretching back hundreds of years. I didn’t have so much as a paralegal to help me. I didn’t even have Westlaw or Lexis, which made the experience like writing a paper on why someone’s interpretation of a novel is wrong without having the novel in front of you. I had to go to the courthouse to do legal research, the equivalent of having to go to the library to access the novel–one that didn’t let you bring your computer inside, no less.

Still, I was looking forward to writing the brief. Eager, even. The case involved millions of dollars benefiting a cause and a group of people I cared about deeply, and I was highly motivated. The pressure was intense, but pressure focuses the mind, and I welcomed it. Nor was I overly worried about my ability; I’d written appellate briefs that had gotten reversals in high-stakes cases before. The main difference now was that I’d be doing this one by myself.

The brief was progressing nicely when we found out we were pregnant. Two weeks later, we went for an ultrasound that detected a fetal heartbeat, and we cried tears of joy. We put a picture of the ultrasound on the fridge in our apartment, and looked forward to putting it on the fridge in the house we’d just bought and would soon be moving into. Then we gazed at it and cooed.

Two weeks later we had another appointment with the OB-GYN. This one didn’t go as well. For two days, Regina and I wept nearly without pause. The brief got put on hold.

Then we moved but didn’t unpack. For our first two weeks in the house, there were boxes everywhere. We didn’t even have proper utensils for the frozen dinners we were eating. The brief suffered. I was way behind.

Then, late one Sunday, I was settling in for an all-nighter on the brief when Aunt Linda called, sobbing, to tell me she’d been told that my father had died. I stopped working on the brief for a few hours to investigate. I called the prison. I called my other family members. I wrote emails. Then, unsure if my father was dead or alive, I went back to the brief. It was due in a week.

Meanwhile, Regina had an unusually crushing amount of call. One night, while we were both still in mourning, she had to respond to a heart attack. Not wanting her to be alone, I went with her and worked on the brief in the passenger seat as she drove. Then I worked on it in the hospital waiting room as she performed a cardiac catheterization. We got home at 4 a.m. A few hours later, she went back work, and I went back to the brief.

A few days later, Regina’s parents came from Toronto. They arrived when Regina was at work. I let them in, we hugged, and then I went back upstairs to work on the brief. By the time they called me down for dinner, Regina had gotten home. When I went into the kitchen, I saw that they’d been crying, though they’d stopped, presumably for my benefit. Then, when I sat down and felt the steam from the first home-cooked meal we’d had in weeks hit my face, I broke down and wept. Everyone started crying again. Regina’s dad held me and stroked my hair. Then, after dinner, I went back to the brief. It was due in a few days.

The day it was due, Regina had a procedure to clear out fetal tissue. I went to the hospital with her and her parents, where I worked on the brief on my phone.

When we got home, I printed the brief and re-read it as carefully as I possibly could. Finally–finally–I emailed the vendor I’d hired to handle the filing to let them know it was done. Ten minutes after they got it on file, I read the submitted version, and immediately saw several typos. I kicked myself. Then I forgave myself.

The rest of the appeal, and the rest of the year, went more smoothly.

A week after filing, I went to China to get proof that my father was alive (he was).

Then, when my opponents filed a brief responding to mine, I wrote a second brief in response that wasn’t only less stressful to write, but fun–my mother and sister were visiting, and we hunkered down together a few days before it was due to make it more readable.

The oral argument too had gone well, and I’d combined it with a highly enjoyable visit with friends and Regina’s family in DC and New York.

But then months passed without a decision in the case, and I grew anxious. Was it a mistake to have written and filed the opening brief, which laid the foundation for the appeal, in those circumstances? It hadn’t occurred to me until much later that I might’ve been able to get an extension–should I have?

That brings us to last Friday, when we were sitting in the fertility clinic, in an echo of those harrowing few weeks less than a year ago.

In a profoundly eerie sequence of events, not five minutes after I told Regina that I’d been getting anxious over my buzzing phone, my phone buzzed again.

“It’s the decision.”

“And??”

I scrolled through the PDF.

“I won.”

We jumped up from our chairs and embraced with huge smiles on our faces. It felt incredible.

There are a ton of other reasons the decision is important to me, and important generally, most of which people who know me already know. But this is the first time I’ve written about the circumstances in which I wrote the opening brief in detail. Now that the decision is out, I feel more comfortable sharing the story. Hopefully it gives people going through their own difficulties strength.