April 10, 2020

Hillary A. Taylor Publishes New Article About Oral Advocacy In DRI’s The Voice

Hillary A. Taylor, an appellate and trial lawyer published a new article this week, “Improving Oral Advocacy Through Mental Preparation.” Among her many activities, Hillary serves as the DRI Appellate Advocacy Committee The Voice Chair.

Improving Oral Advocacy Through Mental Preparation
What Elite Athletes Can Teach Lawyers About Mastering Oral Argument
By Hillary A. Taylor

The case is called. She rises from her place at counsel table, walking to the podium. Standing tall, hands framing the podium, she opens, “May it please the court.” Oral argument is underway.

What ensues is quick in duration but can be brutal or brilliant. Appellate courts, if they allow it at all, set aside 15, sometimes 30, and rarely, 60 minutes for oral argument. The blink of an eye in the lifetime of a case, these minutes can determine a case’s trajectory or even outcome.

Elite athletes face similar pressures as a matter of routine: inches or seconds can determine victory or defeat, foul ball, or homerun. Many athletes have mastered a skillset that is also uniquely beneficial to lawyers seeking to optimize those precious few minutes when they have the full attention of the court: rigorous mental preparation.

To achieve success, athletes must learn to perform when the pressure is on. The same is true for lawyers: like a pitcher who isn’t hitting his spots, the lawyer who is unable to field questions effectively is painful to watch. Many good lawyers falter when arguing legal issues—even ones they know well. While some are naturally more comfortable talking to juries than to judges, mental preparation is essential to any lawyer who wants to master their game.

Athletes talk about being “on,” or “in the flow.” Baskets drop, pitchers hit their spots, passes are instinctively strung together, creating performances that appear effortless: “Attaining an optimal performance state—when the physical and mental come together seamlessly—is the goal of, and can be the reward for, paying close attention to the power of an aware mind.” Susan Karcz, Competitive Edge, Harvard Med. Lawyers can learn the same skills to ensure that for the few minutes of oral argument, their performance is exceptional.

The first step in mental preparation is to breathe. Breathing, done intentionally, allows the body to calm, and the overworked mind to settle. Alan Jaeger, a teacher of sports philosophy, has been teaching athletes to breathe properly for decades. Alan Jaeger, Getting Focused, Staying Focused: A Far Eastern Approach to Sports and Life (2000) (available in paperback or as an eBook). Jaeger teaches athletes how to use breathing to focus. He explains that breathing through your diaphragm, rather than your chest, as is common, “[s]witches our focus from the top of our anatomy (intellect) to the center of our anatomy (intuition). It allows us to access the source of our unconscious nature and liberates us from the stranglehold of our thoughts.” Id. at 35. Breathing correctly allows you to act unburdened by thoughts or anxieties.

Next, visualize success and failure. Spend time visualizing the oral argument process, from start to finish, using all of your senses. Include everything that you plan to say, every fear that could be realized (e.g., getting asked a question that you cannot answer or that one question that you do not want to answer), your responses and reactions. Just as you review the briefing and case law, exploring legal nuance and distinctions, watch yourself arguing in your mind’s eye.  Like a hitter who sees a success at bat before he steps in the box, envision yourself answering every possible question without stumbling. Take yourself through the argument time and again before your case is called.

Kobe Bryant was once asked how it was that he consistently hit clutch shots, never expressing surprise. He replied that when you shoot 1,000 baskets a day, you know you’re going to make that shot—because you already did.  If you have already seen yourself do it, there is no surprise in your success. Your brain has already experienced it. Execution becomes simple follow-through.

Third, get comfortable with the uncomfortable. Recognize and accept what you can and cannot control. You cannot control the venue, temperature, weather, spectators, or anything else outside of yourself. If you anticipate being in unfamiliar surroundings, spend time there in advance. Hang out, watch other arguments. Once you are comfortable in the courtroom, find other aspects that make you uncomfortable, and tackle them one by one, by physically and mentally putting yourself in those situations and controlling your reaction. The courtroom is your equivalent to the field or diamond, when you are there, it is a haven, the friendly confines.

Fourth, and perhaps most difficult, remove all distractions. Think of a pitcher who takes the mound. He cannot answer email from there either; act accordingly. Think, Billy Chapel in For Love of the Game and “clear the mechanism.” Immediately before an argument, practice deep breathing to clear your head and calm your body. Achieving complete focus can be a real challenge in today’s world. However, it too can be practiced as part of your oral argument routine.

Focus on what you can control. On appeal the facts are set, the law is often established, but you have the opportunity to think creatively within the rules. While you may not be able to win your case at oral argument, by being wholly, including mentally, prepared, you can execute to the best of your ability and continue to elevate your craft. Doing so with flawless delivery, vigor, and integrity is what our clients deserve. Mental preparation is a tool that lawyers can borrow from athletes to sharpen our delivery and increase our opportunity for success.

Hillary A. Taylor is a shareholder with Keating Jones Hughes PC in Portland, Oregon, where her practice focuses on professional liability defense, at trial and on appeal, in Oregon and Washington. She earned her B.A. from Lewis & Clark College and her J.D. from Willamette University College of Law. Ms. Taylor has authored many amicus briefs on issues of importance in cases before the Oregon Supreme Court. She enjoys spending her free time with her husband who owns Portland Baseball Club. Ms. Taylor is a member of DRI. She serves as the DRI Appellate Advocacy Committee The Voice chair