For many law students, the unpredictability of the 1L oral argument experience poses a daunting challenge, even more than an intimidating Socratic classroom exchange. Some well-meaning mentors urge reticent advocates to “fake it till you make it,” “just prepare and practice and you’ll be fine,” or “if you’re nervous, it just means you care.” Unfortunately, these slogans do not help apprehensive students and instead, can exacerbate anxiety. A better strategy for helping our hesitant students succeed, and hopefully thrive, at oral argument includes (1) acknowledging the reality of fear in performance-oriented lawyering events, (2) providing adequate context about the logistics of the scenario, and (3) modeling substantive mental and physical preparation techniques.
A Little Acknowledgment Goes a Long Way
Rather than downplaying the role of nerves, we can acknowledge out loud that certain performance-oriented scenarios are going to be scarier for some individuals than for others. This does not in any way mean that those of us with anxiety are not cut out for lawyering, litigation, or an area of practice that requires public speaking. Just like writing, multiple-choice test-taking, or time management skills, it just means that nervous individuals might need a little extra guidance on how to tackle such tasks in a different, more conscious and self-aware way.
As I wrote in my book The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy, quiet law students—whether introverted, shy, or socially anxious— are tremendous assets in the classroom and legal profession. Their gifts include active listening, deep thinking, thoughtful legal writing, creative problem-solving, and empathy. Quiet individuals do NOT need to change who they are to be impactful advocates. They just might need help amplifying their voices in an authentic manner.
Provide Early Context about the Logistics of Oral Argument
Sometimes teachers forget that some 1Ls have no idea how oral arguments are administered, where they take place, how long they last, or how many people are in the room. Students unfamiliar with this “rite of passage” can inflate this ten or twenty-minute experience in their minds to the equivalent of a Super Bowl halftime performance or the Opening Ceremonies of the Olympic Games. Students hear rumors about audience sizes and combative judges. They envision suffering humiliation in front of the entire 1L class. We can quell a bit of anxiety by very clearly explaining the logistics of the first round of oral argument: which side argues first, how many minutes each advocate speaks, how many judges are present, whether anyone besides the advocates and the judges are in the room, what size room is used, how judges typically interject questions, how time is kept, whether judges provide immediate feedback at the conclusion of the argument, and how long the entire experience lasts.
Clarify That It’s Okay to Use Notes
Nervous students can shut down further when they hear advice like, “Memorize your argument or at least your entire roadmap.” Of course, some orators will be able to command the podium and deliver a captivating introduction from memory while maintaining eye contact with all the judges, never once glancing down at notes or outlines. However, other students’ nerves are going to overtake everything in the first few minutes. They need to know it is okay to have their roadmap written out word-for-word, so if their brain and bodies freeze, they literally can read the first line or two of the roadmap—even their own names—and start talking, breathing, and moving.
Reframe Judges’ Questions As Invitations to Dialogue, Rather Than Challenges
In anticipating judges’ questions, students worry that they will not know the answers, and that the whole argument will derail if they cannot seamlessly transition back to their outlines. During preparation, reassure students that, by researching and drafting their briefs—reviewing the client’s facts, reading the cases, and framing the arguments and counter-arguments—they already know the weaknesses of their client’s position. The judges’ questions inevitably will focus on the cracks in the foundation of the student’s argument. Encourage students to write out answers to anticipated judges’ questions and then bring a bullet-point sheet of those answers into the argument (with one- or two-word prompts like “public policy” or “rule exception” for quick reference). Students also can craft argument “themes” to use as a home-base if they are not sure how to answer a judge’s question. Further, we can help students practice marking their place in their argument outlines as soon as they are interrupted by a judge’s question, so they can fluidly return back to that marker and resume the argument. Teachers may further recommend that students treat each judge’s question like an invitation to dialogue, rather than a perceived critique of the way the argument is going. Even if the tone of the judge’s question feels a bit testy, the student simply can engage in conversation with the particular judge.
Allow Nervous Students to Practice One-on-One or in Small Groups
Some teachers schedule oral argument practice rounds in front of large groups of students. While this might at first glance seem like a prime opportunity for students to “work out their nerves,” this scenario can cause undue strain on an already nervous student. So consider offering anxious students the opportunity to rehearse in small groups of four, with just one partner, or one-on-one with the professor. At Brooklyn Law School, we designed a small, private Oral Argument Practice Room for nervous students to rehearse on their own with technology available to videotape their practice rounds.
Teach Students about Mental and Physical Preparation in Addition to Substance
In addition to teaching students how to pare down a lengthy brief into a shorter substantive oral argument outline and how to anticipate judges’ questions, we can also offer students guidance on how to mentally and physically prepare for a daunting performance event like oral argument. In The Introverted Lawyer, I describe how to engage in: (1) mental reflection; (2) physical reflection; (3) mental action; and (4) physical action. By taking some time to reflect on the mental messages that appear in our minds in anticipating an event like oral argument, we often realize that we have been listening to, and reinforcing, unhelpful messages about our performance capabilities for a long time. These messages—perhaps received from well-meaning childhood coaches, teachers, mentors, or peers years ago—are no longer useful in our legal personas. But we need to actually hear and transcribe them before we can acknowledge and then jettison them. Additionally, for many of us, our bodies launch automatic physical responses when we anticipate a stressful event. We instinctively hunch our shoulders, cross our arms or legs, and make ourselves smaller. In doing so, we are unwittingly closing off essential energy, blood, and oxygen flow.
By first becoming more self-aware about these well-entrenched mental and physical responses, we can adopt new mental and physical action plans (described in The Introverted Lawyer) before the event. We can draft new mental messages to replace the outdated soundtrack: “This argument is ten short minutes of my life, and I know what I am talking about. I have done the hard work, and I can do this in my authentic way.” For physical preparation, professors can encourage nervous students to take a field trip (if possible) to the room where the oral argument will take place, to get to know the room, what the podium looks like, where students should sit before the argument, and where the judges will sit. Students should practice standing at the podium in a balanced Olympic athlete’s stance, opening up, breathing, and projecting eye contact and voices to the furthest point in the room.
Help Students Craft a Game-Day Plan
On oral argument day, students typically are surrounded by other students—confident ones and nervous ones—which can exacerbate anxiety for an anxious advocate. To curb game-day anxiety, professors can help students design an action plan of healthy choices: food, hydration, a quiet place to regroup and get away from the law school chatter, attire, headphones, or even a personal “soundtrack for success.” One fun empowering idea is to talk about the student’s “lawyer uniform.” Dressing “like a lawyer” actually can make some students more nervous. Professors might consider encouraging students to dress professionally, of course, but incorporate some article of personal style that will help them feel unique and powerful: a cool watch, a signature bracelet, an inspiring t-shirt hidden beneath their suit. Owning one’s personal style (in a non-distracting way) helps a nervous individual feel in control.
In the Moment, Help a Struggling Student Complete the Argument
If a professor is serving as a judge in an argument in which a student clearly is struggling due to nerves, the best course of action is to help the student complete the experience. Professors can step in with a question that the student can answer or open ended-questions like “Counselor, tell me why we should rule in favor of your client?” or “Why would ruling in favor of your client be better for society?” Try to keep the student talking until time expires. The student may be upset at the performance but at least will feel the sense of accomplishment at finishing the argument instead of stopping midway through.
I have conducted oral argument anxiety workshops at two law schools in New York over the past seven years. There is nothing more rewarding than seeing a student who absolutely wanted nothing to do with the oral argument experience and who just wanted to get it over, report back that it went “fine” and better than “fine” as with the student who was selected for the moot court team! Our quiet students—introverted, shy, or socially anxious—bring tremendous value to our classrooms and to our profession. Through incremental steps, we can help turn the dial of anxiety down one, two, or three notches to help power them through the experience. Oftentimes, this enables them to shine brighter than they ever thought possible.
For more information, check out The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy.