Searching for perfection

Looking out my Financial District office window, I notice a tiny mayfly clinging to the glass. At 26 floors up, I wonder how it got there. So far from any freshwater stream; so unlikely to find its way back. Its wings flutter, but something imperceptible works against flight. Perhaps fatigue from astounding travel. Perhaps wind shear on the face of the building. Perhaps it is waiting for the right moment to resume the journey.

Fly fishers know a little bit about mayflies because of what wild trout teach us. What wild trout teach us, though, is not always clear. Most often it's some sort of complex mystery, a lesson in humility replete with hatch-matching puzzles. What is clear is that the search for deeper understanding and better results is never-ending. We often leave the river feeling like there were clues unseen, opportunities untaken, alternative approaches unexplored. We make mental notes for next time, but as Heraclitus said centuries ago, next time it won't be the same river and we won't be the same either.

Solving puzzles is a state of mind familiar to appellate lawyers. Blessed with a luxury of time many of our colleagues lack, we are tasked with spotting the best issues and finding the most definitive answers. But our goal -- short, crisp, persuasive writing anchored in fidelity to the record and conventions of the craft -- is often as challenging as the wary trout that fly fishers try to trick. We know why we should win. But putting it on paper is trickier than words can describe. Yet words must describe it.

On the river, we search for a way to present the artificial fly so that it appears natural, not contrived. But when it's time for a money cast, drag on the surface of the water can alert the trout and the gambit will be lost. And so we cast again and again, searching for the moment when there is no perception of line and leader and the trout engulfs the fly.

So it is with good appellate briefing. To achieve any kind of harmony requires tireless effort and multiple revisions; the constant casting and recasting of words, phrases, sentences and paragraphs. Like fly fishing, appellate work is best performed in a state of quiet contemplation. And like the best approaches to a wary rising trout, appellate puzzles are more likely to be solved when attention to detail and subtlety is keenest. If we're honest about our writing (and our casting), we know there is always room for improvement. Drag is the enemy: between angler and trout; between printed page and brief reader. Even our best briefs could be better, free of distraction, leading fluidly, inexorably downstream to one result -- seamless persuasion.

Of course, it's easier to describe it than do it. The iconic figures of fly fishing could have been speaking of appellate writing when they described the realities of river time. As Theodore Gordon put it, "The great charm of fly-fishing is that we are always learning." As Izaak Walton said when hooks were called angle-wires and leader was made from horse hair, "Angling may be said to be so like the mathematics that it can never be fully learnt." Great writing doesn't just happen either -- it's the result of a continual process of seeing things in a different light, breaking through to another level, and editing the work yet again.

There is of course, tension in all the time spent nurturing briefs to filing readiness. Some clients wonder why so much needs to be done. The late Justice David Sills answered that question perfectly when he stated that "Appellate work is most assuredly not the recycling of trial level points and authorities." In re Marriage of Shaban, 88 Cal. App. 4th 398, 408-09 (2001). He also noted the greater level of scrutiny such briefs receive. And there is the inverse relationship between time spent on a brief and brief length. As the court stated in King v. Gildersleeve, 79 Cal. 504, 507-08 (1889), "learned counsel may not have had time to prepare a short brief, and for that reason have cast upon us the unnecessary labor of reading and extracting therefrom the points made." When it comes to appeals, multiple drafts and edits mean better (and usually shorter) briefs, and better briefs mean better advocacy.

Fly fishing has been described as "the pursuit of what is elusive but attainable, a perpetual series of occasions for hope." While elusive, better appellate briefing is also attainable, but only by a dedication to writing (and especially rewriting) too often found wanting in the legal profession. Excuses are legion, many of them easy to rationalize, but hope -- like the mayfly on my office window -- can take wing. As Norman Maclean put it in his lovely novella, A River Runs Through It, "All good things -- trout as well as eternal salvation -- come by grace, and grace comes by art, and art does not come easy." He could have been speaking of good legal writing too.