By Andrea L. Moseley

Have you ever wondered why so many seasoned trial lawyers excel at Tennis? In my view, as a former Division III collegiate tennis player and a White Collar litigator, it is not a coincidence. Especially in the midst of this unusual pandemic Tennis season, I have been thinking more and more about how the singles tennis player must deal with many of the same struggles that most trial lawyers encounter.

In late August, the U.S. Open kicked off nearly two consecutive months of Grand Slam entertainment. In a historically crowd-less stadium, Naomi Osaka and Dominic Thiem captured U.S. Open titles in the women’s and men’s singles events. Now we eagerly await the French Open, which is usually held in late May-early June.

I feel a strong bond with the solitary singles player who faces immense pressure during a key match. In the courtroom, personal responsibility, high-risk judgment calls and costly strategic decisions are all on you. Law and Tennis have plenty in common. On a high level, tennis requires excellence and attention to detail. Litigators “as a breed” are inevitably competitive. One notable commonality between the singles tennis player and the litigator is the need to make tough decisions and execute those decisions with confidence in the blink of an eye.

how do you make tough litigation decisions?

The first step is to try to understand why tough decisions are so difficult to make. Harvard Business Review author, David Maxwell, summarized the work of, Alexander George, who studied presidential decision-making. In analyzing presidential decision-making, George focused on two relevant observations:

  • Uncertainty: Presidents never have the time or resources to fully understand all of the implications their decisions will have.
  • “Value Complexity”: This is George’s term to explain that even the “best” decisions will harm some people and undermine values leaders would prefer to support.

Litigators are constantly faced with decisions involving both uncertainty and value complexity. The topic of “uncertainty” is the one that definitively applies to both tennis players and litigators. When faced with uncertainty, we may retreat, delay or procrastinate when we would be better off acting. Likewise, tennis players can get behind in the score, and find themselves on the wrong side of a break point, a tie break or even worse, a match point. As a professional, you must be able to pivot and be willing to re-evaluate strategy when you get behind the ball.

what can litigators do to overcome uncertainty?

As David Maxwell wrote in relation to executive decision-making, there are at least four behaviors to actively ward off:

  • Do not engage in Avoidance, the head-in-the-sand pitfall. Try to anticipate emerging issues instead of putting off dealing with problems.
    • On the court, this means that, if you keep running up to the net and getting passed because your opponent consistently finds a way to get by you, you must acknowledge that and stop treating this winner as if it were a fluke.
    • In the courtroom, this means if you see that the judge or jury clearly do not accept the defense theme you prepared, see it early, and do not keep plowing ahead (out of fear) with the same strategy, while ignoring the fact that this particular path is failing.
  • Fixation. If you encounter a problem, fight or flight mode may kick in and impair your strategic thinking. Know this and teach yourself to identify the fact that your adrenaline is overflowing, which might mean you will be fixed on a short term problem and miss the broader context.
    • For the tennis player, this can be dealing with a bad call. You know the ball was in, you challenged the call and you lost. You are seeing red, but you have to win this mental challenge and move on. (Note, not everyone gets to play in tournaments with those nifty, nearly perfect replay cameras.)
    • For the litigator, you got a bad ruling during trial. Same advice: you are seeing red, but you have to win this mental challenge and never let them see you sweat.
  • Over-simplification. A fight-or-flight instinct could also cause you to oversimplify a more complex understanding of a difficult situation. Wisdom demands that we not divide the universe of options into potentially vacuous dichotomies. Not every decision is all or nothing, win or lose, or option A vs. option B. Making a successful decision often requires transcending simplifications and discovering new ways to solve the problem.
    • Imagine that you lost the first set of your tennis match and you are convinced it was because your baseline game has been off this season and your only option is to win at the net. Be careful, though. It may not be your baseline game writ large. Instead, maybe you became predictable in this match and you just need to mix up the speed on your serve before you take to the baseline, or perhaps you need to run around your backhand and create new angles.
    • As a litigator, you must listen to the witness, really listen. You thought they were going to be adverse to you at every turn. Instead, consider trying to read between the lines and maybe there is a fact or two that the witness is not eager to contest or perhaps you can just establish a rapport instead of trying to beat out a particular yes or no answer. Think outside the box you put yourself in.
  • Isolation.  No need to explain this much.
    • Tennis players get injured and heal all the time. Naomi Osaka, after her big 2020 U.S. Open win, withdrew from the upcoming French Open because of injury. Don’t hide the injury or the unusual soreness out of fear. If you do not alert your coach and your training staff about your potential physical vulnerabilities, you are doing yourself a major disservice.
    • This is where litigators and (all) lawyers get into real trouble, including ethical hot water. They see a real problem and they tell no one. At first, some people may think that, if you contain the problem, it’ll be easier to solve. No doubt, it may seem safer to hide the problem, whatever it is, from the court, your colleagues or your client while you panic and decide what to do. Unfortunately, if you wait too long to sound the alarm, you may be in too deep to recover unscathed.

how do you avoid these pitfalls and reduce uncertainty?

Taking a page out of David Maxwell’s Harvard Business Review article:

  • Assess the situation. First, fairly consider and add up the risks of not acting. Seeing these costs will push you out of avoidance. Second, consider the pluses and minuses of your options. Walk through different scenarios to uncover hidden risks and discover new options. Make lists of the costs and benefits of moving and not moving.
  • Don’t get stuck. Challenge any either/or assumptions you’ve made. Ask, “Can we do both?” and “What other options are available?”
  • Add others’ perspectives. Grab a lifeline. Don’t stew alone about the choices in front of you. Instead, talk to people you trust about the decision and your assessment. As a litigator, learn to staff a case going to trial. You are overwhelmed and can’t do it alone, but you are paralyzed because you can’t hire new staff now. Well, hire one new law student on an hourly basis or a budding paralegal who needs on the job training hours. Let this small step help you, the small solo practitioner, get ready for your big trial. Or, at a minimum, ask colleagues to moot you or buy dinner for a couple of colleagues with the caveat that they must critique your trial strategy.
  • Try a test run. Find a low-risk, small-scale way to test your options. For example, talk to different tennis coaches or veteran players. Or, as a litigator going to trial, use a mock jury for the first time in your career to see if your theory of defense has traction.
  • Take a step, one step. Break a complex decision into simple steps. Determine the very next step you need to take and then take it. For example, the next step is not: “Stop hitting a two-handed back hand.” Instead, it might be: “spend two weeks practicing a one-handed backhand.” As a litigator, do extensive pre-trial motions on complex evidentiary matters. File a motion in limine for the evidence that you fear won’t be admissible. Get those answers well before trial so you can build your strategy around the admission, or absence, of game-changing pieces of evidence. With that knowledge, you can ultimately build a solid and coherent defense.

Now, we all wait for a generous bounce on the clay courts of Stade Roland-Garros during this atypical 2020 Grand Slam year.