Sleepy Advocacy

Appellate Advocacy is hard work. Crafting an effective, persuasive argument requires preparation so thorough that the advocate can go beyond merely answering questions to actively anticipate the next question that an intelligent layman might pose. It takes research that plumbs the depths of prior precedent to ensure no court has taken a novel approach that could potentially apply to the facts. It calls for advocates to tease out the limits of their position so thoroughly that they know exactly how much ground they can give in defining the rule that ought to lead to a judgment in their favor, all without accidentally conceding defeat.

So it would seem that when a moot court team I coached recently asked me how to best prepare for a competition that was just three days away, I should have responded with a grueling preparation schedule of all-night practices and research sessions. But because I knew how hard this team had been working with the material for weeks, my answer was simpler: get some sleep.

Study after study has shown how poor sleep can affect our ability to learn, think, remember, and react quickly to new stimuli. According to Dr. Clete Kushida, an associate professor in the department of psychiatry and behavioral sciences at Stanford University Medical Center, “sleep loss leads to learning and memory impairment, as well as decreased attention and vigilance.”[1] The proverbial all-nighter is ineffective at improving our learning and memory. According to Dr. David Earnest, a professor with the Texas A&M College of Medicine, sleep allows your brain to convert short-term memories into long-term ones; skipping that process will decrease one’s mental processing efficiency.[2] The best method to improve memory, recall, and mental processing rates is to get consistent sleep over time.

Some readers might be thinking that this advice sounds good for the lowly student, but practiced advocates who speak in courtrooms for a living can cope with the stresses of low sleep better than the average 1L. Frankly, I doubt it. Research on the effects of sleep deprivation, even for experts in a field, suggests otherwise. Take one study of professional basketball players, who often struggle to rest while maintaining a grueling travel schedule between games. The study tracked the performance of NBA players who sent a tweet between 11:00 p.m. and 7:00 a.m., then played a game the following day. According to the study, those players’ shooting percentages dropped 1.7% when compared to games that did not follow late-night tweeting; their averages for rebounds, steals, and blocks also dropped.[3] In another study, college basketball players who extended their sleep routines to include at least ten hours of rest per night saw a greater than 9% increase in their shooting percentages.[4] It seems that coordinated performance that requires quick reactions is closely linked to sleep routines, even for experts.

Preparation is everything in appellate advocacy. The attorney who has done her research thoroughly and considered the issues carefully will find success. But that preparation is most useful when it is part of a long-term process, not a series of focused efforts crammed into a short time frame at the expense of proper sleep. The ability to focus, react, and process information is tightly correlated with scheduling adequate time for shut-eye. When the clock strikes midnight, practitioners and students alike should resist the temptation to press on, instead resolving to have a fresh look at the case after a good night’s sleep.

[1] American Academy of Sleep Medicine, College Students: Getting Enough Sleep Is Vital to Academic Success, Nov. 6, 2017, https://aasm.org/college-students-getting-enough-sleep-is-vital-to-academic-success/.

[2] Science Daily, Studying: Is It Bad for Your Health to Pull an All-Nighter?, Sept. 19, 2016, https://www.sciencedaily.com/releases/2016/09/160919162837.htm.

[3] American Academy of Sleep Medicine, Study Links Late-Night Tweeting by NBA Players to Worse Game Performance, June 5, 2017, https://aasm.org/study-links-late-night-tweeting-by-nba-players-to-worse-game-performance/.

[4] Cheri Mah et al., The Effects of Sleep Extension on the Athletic Performance of Collegiate Basketball Players, 34 SLEEP 943 (2011).