Thursday Thinkpiece: Cunningham on Reducing Oral Argument Nervousness With CBT

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Using Principles from Cognitive Behavioral Therapy to Reduce Nervousness in Oral Argument or Moot Court

Larry Cunningham, Associate Academic Dean and Professor of Legal Writing, St. John’s University School of Law
Nevada Law Journal, Vol. 15, No. 586, 2015

Excerpt: Opening anecdote, Introduction, and Section IV
[Footnotes omitted. They can be found in the original via the link above]

Sarah, a new attorney at a public defender’s office, is assigned to the appeals bureau. Ordinarily, Sarah spends her days researching and writing briefs, talking with clients, and brainstorming legal issues with colleagues. Today, however, she opened the mail to find a notice from the court setting a date for her first oral argument. She suffers the first of several anxiety attacks: rapid heart rate, racing thoughts, shortness of breath, sweaty palms, nausea, and feelings of panic and tension. As she reads the form letter, her hands tremble. This is the day she has dreaded. She loves to write and research, but the thought of appearing in front of three robed judges and getting questioned for thirty minutes seems insurmountable. Sarah tells her supervisor that she is not feeling well, takes a sick day, and goes home. There, she crawls into bed, cries, and sleeps the day away. Later, still nervous, she has two glasses of wine “to take the edge off.”

As the days go by, Sarah suffers from similar panic attacks whenever she thinks about the upcoming oral argument. Her mind has thoughts of all the worst-case scenarios. What if she is unable to deliver her oral argument? What if she stumbles? What if she embarrasses herself? What if she says something that causes her client to lose the case? What if the judges ask questions that she doesn’t know the answer to? She confides in a coworker that she is “a little nervous.” Her colleague doesn’t help matters. He says, “Yeah, you’ll feel trapped up there and it will be awful. The judges on your panel are real monsters. But you’ll muddle through. Don’t worry.”

Over a glass of wine one night, she thinks of ways she can get out of the oral argument. Perhaps she can ask to observe someone else do the oral argument and volunteer to do the next one? What if she calls in sick that day? Ultimately, she remembers that the rules of the appellate court allow her to waive oral argument and submit the case “on the papers.” She does so, to the detriment of the client, whose argument would have been stronger had Sarah taken the opportunity to try to persuade the court one last time.

INTRODUCTION

Many lawyers experience trepidation before and during a high-stakes court appearance like an appellate argument. Yet Sarah’s fear may be beyond normal nervousness; she may be experiencing an abnormal level of anxiety, since hers is causing “considerable distress and interference in daily living.” If that is the case, she would not be alone; anxiety disorders are common with in the general population and even more so in the legal profession.

In this article, I propose using principles of Cognitive Behavioral Therapy (“CBT”) to help law students and attorneys overcome their fear, anxiety, or nervousness about moot court or oral argument. CBT is a recognized form of therapy for treating anxiety disorders. It focuses on identifying the feelings, thoughts, and behaviors that are components of anxiety; recognizing and self-correcting the exaggerated thoughts that are triggering the body’s anxiety response; and exploring the underlying feelings that are contributing to unhealthy ideas. It is, at bottom, an educational tool. Indeed, there are at-home workbooks that can teach CBT’s principles and techniques without the assistance of a therapist.

This article will describe how CBT’s core teachings can be applied by an attorney like Sarah, who is nervous about delivering an oral argument and who may even be showing signs of an anxiety disorder. Legal writing professors and continuing legal education providers should address head-on the nervousness many lawyers and law students experience around oral argument by introducing CBT principles as part of their teaching.

This is not to suggest that we, as educators, should provide unlicensed therapy by diagnosing and delivering treatment. Without appropriate training and experience, we could do more harm than good. However, what I do suggest is that nervousness—regardless of whether it has reached the level of clinical anxiety—is something that can and should be addressed through education. Just as we teach students how to respond to judges’ questions, so too should we provide students with suggestions for reducing their nervousness. CBT gives us the framework for doing so. Addressing anxiety and fear may not only make students happier and calmer, but it may also improve their effectiveness as advocates.

In addition, as educators, we should be on the lookout for sign s that a student’s nervousness is beyond mere “butterflies in the stomach,” but may be something more severe, like an anxiety disorder, that warrants a discussion with the student about seeking counseling. By educating ourselves about anxiety, we can become better teachers and advisors to our students.

I will proceed by first discussing oral argument and its importance in appellate advocacy (Part I). Next, I will discuss the widespread nature of the fear of public speaking, which sometimes manifests itself as anxiety. The pervasiveness of this fear is only compounded by the extent to which anxiety disorders exist in not only the general population but also among lawyers and law students in particular (Part II). I will then turn to describing CBT in the abstract and focusing on its role in treating anxiety-related disorders, specifically (Part III). Finally, I will apply CBT principles to the oral argument setting, noting the exaggerated thoughts, core beliefs, and behaviors that are contributing to the body’s fight-or-flight response and how law school professors can introduce CBT principles in their teaching to help students minimize their nervousness.

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IV. APPLYING CBT PRINCIPLES TO THE ORAL ARGUMENT SETTING

A. CBT in the Individual Case

Returning to Sarah, the anxious appellate advocate, it becomes clear that her nervousness is affecting her work and causing her great distress. It is also apparent that she shows many of the classic signs of anxiety. Triggered by an identifiable event (the notice of the oral argument), she shows physical signs of rapid heart rate, racing thoughts, shortness of breath, sweaty palms, and nausea. She experiences thoughts of catastrophe (inability to speak, stumbling, or embarrassing herself) and incompetence (saying something that causes her to lose the case or not knowing the answer to a question). Her coworker exacerbates matters by talking about feeling “trapped,” the experience being “awful,” and the judges being “monsters.” Sarah then employs coping mechanisms that are unhealthy behaviors: going home early from work, sleeping in the daytime, drinking alcohol, and ultimately escaping the harmful stimulus by waiving oral argument, to the detriment of her client.

Working with a psychotherapist, perhaps Sarah would discover some core belief that is impacting the way she looks at high-pressure situations such as oral argument. Arthur Nielsen, a psychiatrist, describes working with a lawyer named “Brian,” who was afraid of public speaking. Like Sarah, Brian avoided speaking where possible. Through talk therapy, Brian recollected incidents in his childhood in which his siblings would attack him for performing well. This notion—fear of praise—was at the root of his fear of public speaking.

Sarah would no doubt benefit from working with a mental health professional. Perhaps employing CBT, a therapist could help Sarah identify her crooked thinking and replace it with more healthy and realistic thoughts, such as:

• I have an important role today, to advocate for my client.
• The judges are not “monsters” but instead have an important job to do and must care about reaching the correct outcome in my case.
• The court’s questions are not a bad thing; they show the judges are engaged with the case and wish to continue the “conversation” started in the briefs.
• I am not being graded, and the judges’ questions of me are not an assessment of me as a person or a lawyer.
• Judges often ask tough questions of both sides. Asking me a lot of questions is not a sign that they do not like or respect me.
• Throat tightness, sweating, and other physical symptoms are just symptoms of anxiety, which I know from prior episodes, will pass in a few minutes.
• I am well prepared. I thoroughly researched and wrote my brief. I know the record and case law. I have been living with this case for months; the court is still trying to discern the issue(s) in the case.
• It is ok if I misspeak; I can always correct myself.
• While at the podium, I am not trapped. In fact, I am not in any physical danger in the courtroom.

As an evidence-based tool, CBT’s principles may appeal to Sarah and other lawyers.

A therapist working with Sarah would likely also try to get Sarah to adjust her behaviors. Instead of avoiding oral argument, the therapist may try small exposures. For example, they could reenact the scenario of receiving the notice of oral argument or may visit the courtroom, while empty, together. Deep breathing and mindfulness exercises may help if Sarah starts to experience anxiety. The therapist may also assign a workbook so that Sarah can learn more about her condition and practice exercises that help her to adjust her thoughts, behaviors, and feelings.

B. CBT as an Educational Tool

While CBT may be of individual help to Sarah and other attorneys or law students suffering from anxiety, I believe that legal educators—particularly those of us who teach legal writing or appellate advocacy—can use the principles of CBT when teaching the skill of oral argument. All too often, we focus on the mechanics and strategy of oral argument without giving due regard to how students may be feeling about the experience. Based on the data about public speaking fear, generally, and anxiety in law students, specifically, we know that a large number of our students are approaching their first-year oral arguments with trepidation and anxiety. The following principles, based on CBT, can be employed to both make students better advocates but also to make the experience less painful—or perhaps even enjoyable.

1. Acknowledge and talk about the issue. An important aspect of CBT is psychoeducation: informing the patient about how anxiety and the fight-or-flight response work. In the classroom, faculty should discuss nervousness and anxiety openly, including the fact that nervousness is perfectly normal. The subject is already on the minds of the students. Learning about how the body reacts under stress and identifying ways to reduce nervousness can only benefit students. It may also spur discussion about wellness in the legal profession.

2. Correct unrealistic thoughts about oral argument. Particularly if they have seen an oral argument, students may have inaccurate thoughts about the experience. Like Sarah, they may see judges as “monsters” who are “grilling” the attorneys just for the sake of pleasure. Faculty should discuss why judges ask questions and provide students with techniques for answering them effectively. If students focus on unpleasant thoughts, the professor should redirect them to positive aspects of the experience such as the honor and privilege of advocating for a client in an appellate court and assisting the court with deciding the case. They can identify ways that the experience can be rewarding and enjoyable.

3. Educate students about deep breathing exercises. Anxious individuals often engage in shallow, chest-centered breathing. CBT workbooks, mindfulness meditation, and other resources teach deep breathing exercises, which help to relax the individual.

4. Prepare. If nervousness is stemming from worry about being unprepared, one antidote is to prepare thoroughly so that the advocate will be confident and ready for any questions that come up. smartly-prepared binder or cheat sheet can also serve as a source of comfort while at the podium.

5. Provide opportunities for low-risk exposure to stimuli. Before the graded oral argument, I invite students to join me in our school’s moot courtroom—either alone or in small groups—sometimes just to take a tour of the empty courtroom, to practice standing at the podium, and to sit on the bench and see the courtroom from the judges’ perspective. I also invite students who are nervous to practice their argument in my office or a conference room before moving on to the moot courtroom. Small group presentation exercises throughout the semester can also be helpful.

6. Lower the stakes. To the extent an aspect of student nervousness is about being graded, faculty can remove this stimulus by making the oral argument exercise pass/fail or a component of class participation. Likewise, a “no spectator” rule should be enforced. Parents and friends may unwittingly raise students’ anxiety levels. As I tell my students, there will be plenty of opportunities—through moot court and mock trial, for example—for their family and friends to see them playing the role of lawyer.

7. Invite individual discussion and inform students about resources available to help them cope with anxiety. After a class session on oral argument, I invite students to visit my office if they are particularly nervous about oral argument and wish to talk. Discussion about nervousness can also be a catalyst to talk about the value of counseling and mental health services, generally. Many universities have free or low-cost counseling centers that provide a full range of mental health services, including CBT. Students may not be aware of those resources or have misconceptions about them. They may also have questions about whether going to counseling will be a reportable event on bar admission forms. Faculty should receive training from a mental health professional about appropriate ways to inquire and then make a referral to a counseling center. Many universities provide this training as a matter of course for new faculty.

8. Orient judges. If a professor has “judges” on the bench with him or her, they should be oriented accordingly. I often invite alumni to serve as co-judges with me. Beforehand, I go over basic “ground rules” with them, one of which is to inform them about how nervous the students are and the importance of making this first exercise a positive one. I discourage them from interrupting a student’s introduction (even thought that may occur in real life) and to throw “softball questions” if a student appears to be getting flustered.

9. Set clear and realistic expectations. Sometimes, as faculty, we unwittingly set unrealistic expectations of students. For example, by showing a video of an actual oral argument by an experienced litigator, we may also be communicating that we expect an equally effective argument from our novice students. To counteract this, we can clarify that the video is being shown as a model—an aspirational goal—not as a minimum floor of competence. Faculty can also communicate what is expected of students to earn a passing grade.

10. Reinforce their qualifications. Law school is a competitive environment, and sometimes students feel insecure about their own abilities. This insecurity may be a “schema” through which they view the world, including how they approach oral argument. If students are nervous about oral argument, the professor can ask them to think about how qualified they are to deliver the presentation. They know the record, the arguments, and the authorities backing them up.

11. Encourage students to acknowledge nervousness but not dwell on it. Judge Michael Ponsor advises, “If you are nervous, just be nervous. Do not make it worse by getting upset about it.” Indeed, he points out that some degree of nervousness is a good thing, as it mitigates against appearing arrogant or defensive. “Very frequently an older attorney who saunters into the courtroom with an ‘I’ve-done-this-a-million-times’ demeanor gets his clock cleaned by an associate who appears to argue for the first time, whose anxiety is barely under control who is twice as well prepared.” Mindfulness suggests noting the feeling, but not reacting to it, and allowing it to pass. Students can be encouraged to acknowledge their nervousness about oral argument and then dismiss it.

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