So last Thursday marked the end of my foray since last June into 3 operations, 4 1/2 months of chemo and 6 1/2 weeks of radiation. I have certainly learned a lot (and if anyone wants to tap into that knowledge of breast cancer resources and info, just email me, I am more than happy to share). But since this blog is not about "me" as in Cathy, but ME as in Maine appellate law, I have pondered what, if anything, this episode has taught me that can carry over into appellate practice. Three points in particular come to mind:
1. Simplicity. Nothing concentrates the mind like being told that you must deal with an big aggressive cancerous lump that has spread to your lymph nodes. You prioritize. Lots of things that might have seemed important aren't so much any more, and you strip them away.
So also with a good brief. A recent brief filed in the SJC had 14 separate arguments in it. 14? How you avoid a problem seeing the forest for trees in that context I have no idea. I know that it's always a struggle to abandon an argument, because you never know what might strike an appellate court. But if you are the appellant, it's an uphill battle, period, and the simpler and more straightforward your argument, the stronger it will be.
2. Detail. Simplifying doesn't mean you ignore the little things. For example, at the height of chemo time, you are awash in a sea of drugs that you need to keep track of; if you don't, you will pay. So you write lists and check things off every day. There's lots of unpleasantness, but you need to get ahead of problems, and slog through.
So again with briefs. Key-citing, bluebooking, proofing – what little annoyances. But what your brief looks like counts. There's a 99% chance that if you don't update that key-citing right before the brief is due, nothing will happen – but if there's no need to play the odds, why do it? Appendices – picking out exactly what transcript pages need to be included – can be another chore, especially when you need to do it early on, without fleshing out the brief itself. Every single sentence in a statement of material fact should have a record cite. Yes, these things can be boring, but they count.
3. Inevitability. I had none of the predictors – nothing hereditary, I didn't smoke, I ran 20-25 miles a week, I'm a vegetarian, my mammogram was clear the year before. Sometimes you do everything right, and you still get blindsided.
So also with appellate practice. No matter how prepared, you will not anticipate every question. Any no matter how good you are, sometimes you lose. Chief Justice Roberts was no slouch when he practiced. Once when he lost a case before the Supreme Court his client asked him, "How could we lose 9-0?" He answered, "Because there are only nine Justices." You don't go forward with an appeal unless you think you have a good faith chance, and sometimes you will be astounded by the results, wondering why the court didn't see it your way. But, that's life sometimes. You fix what you can, and keep moving forward.