Nerve-Wracking Aspects Of Litigation

It's a stressful field, so litigators need to be level-headed and cool under pressure.

I recently had dinner with a friend who focuses exclusively on transactional work. I asked this friend if he would ever consider doing litigation, and he related that he did not think he had the nerves to be a litigator. My friend said that parts of the litigation process are kind of scary for certain transactional lawyers, and he was fine sticking with his line of work. My immediate reaction was to relate that litigation is not all that bad, and I rarely, if ever, get nervous as a litigator. However, after thinking about it a little bit, there are a few parts of the litigation process about which I am willing to bet even the most seasoned litigator breaks a sweat.

Arguing Appeals

Arguing appeals can be an extremely stressful and nerve-wracking process. Perhaps the scariest aspect of appeals is the unpredictable nature of oral arguments. Judges can, and often do, interrupt litigators at any time during the presentation of arguments, and this can break the flow of even the most trained litigator. In addition, judges are extremely unpredictable, and it is hard to tell what a judge will inquire about during oral arguments.

Moreover, during appeals, litigants do not need to merely contend with one judge. Rather, litigants need to contend with three or more judges, and each of these jurists can ask their own series of questions and present different perspectives on an issue. This can amplify the nerve-wracking aspect of arguing appeals. The first time I argued an appeal, the combination of the interruptions by judges and the unpredictable nature of the proceeding, my leg started shaking, and I couldn’t stop it. The second time I argued an appeal, my leg shook a little less, and by the third time, my leg didn’t shake at all, and I was only a little nervous about the whole proceeding. Experience definitely makes you less scared about certain legal tasks, including appeals. However, presenting appellate arguments can be extremely nerve-wracking, especially for those who never had experience with this process before in their lives.

Hostile Witnesses

Questioning hostile witnesses is another nerve-wracking aspect of litigation. There are a variety of situations in which attorneys need to examine witnesses who are not their biggest fans. This often occurs during depositions in contentious cases that have tortured histories. This can also occur at trials, and although I have limited trial experience myself, having a finder of fact observe you question witnesses is always a harrowing ideal.

I have been confronted by witnesses in many contexts throughout the course of my career. One time, a witness made fun of me for looking over my glasses to read an outline (although I should kind of thank this witness since this was the first time I considered buying reading glasses!) I have also had a number of witnesses pretend that the questions I was asking were the stupidest queries on the face of the earth. Despite all of this conflict, I needed to keep a cool head and continue the examination, which is not an easy task. People who are not accustomed to acting under pressure and staying level-headed definitely should avoid this nerve-wracking aspect of litigation.

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Client Attention

Another nerve-wracking aspect of many litigation tasks is that your client is often watching you while you perform your job. In transactional matters, it is less likely that a client will be around a lawyer when the attorney needs to think on their feet and advocate on their behalf. Of course, sometimes clients will participate in conference calls with the transactional lawyers and are able to observe their lawyers in action, but this is far more likely in litigation. It is not uncommon for clients to attend motion hearings, appeals, and trials if they are scheduled in a case. This can put a lot of pressure on lawyers to perform, which can be a nerve-wracking experience.

One time, earlier in my career, my firm was representing a client from flyover country, and we filed a summary judgment motion in the case. The client’s outside counsel decided to fly to New York to attend the summary judgment motion hearing so that he could observe our firm in action. I could tell that my boss was under the gun to perform at the summary judgment hearing since this client gave us a decent amount of work, and the lawyer would definitely report back to the client about our performance and whether we should be used in the future. This can compound the pressure of an already trying situation, which is not for the faint of heart.

All told, many litigation tasks can be nerve-wracking for numerous lawyers since litigators need to think on their feet and react in the moment under intense pressure. As a result, litigators need to be level-headed and be cool under pressure in order to best represent clients.


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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.