Fly-Fishing Lessons

Compiling “Fly-Fishing Lessons” has required scrutinizing my own aptitudes and how they equate when angling versus litigating. It’s gratifying that many of the talents and proficiencies that I’ve spent my adult life cultivating contribute to my success in both pursuits. For example, I apply a similar analytical “issue spotting” process to selecting flies and legal arguments that are most likely to interest a fish or a court. Presenting those flies and arguments to a target audience effectively requires analogous strategies for casting and legal writing.

Master the Fundamentals

To truly appreciate and excel at fly-fishing or the practice of law you must master the fundamentals. There are very few immutable rules in either fly-fishing or appellate practice—I’m not a professional angler, so don’t take any of this as piscine gospel. But like every talented angler I know, skilled litigators will supplement and enhance core proficiencies with their own personal style, which in turn is informed by their own unique experiences. I’m confident these lessons can be adapted to pretty much any litigation practice or fishing experience.

Start by familiarizing yourself with the equipment. The basic fly-fishing “outfit” includes the rod, reel, line, and, of course, the flies. Think of these tools like core first-year law school classes, e.g., contracts, torts, criminal law, civil procedure—broad categories that each contain a wide variety of subjects and nuances requiring study and practice to appreciate how they come together as an integrated system. Picking up a fly rod at a sporting goods store and reading the assembly instructions won’t teach you how to fly-fish successfully any more than reading the Constitution will teach you what you need to know to try a defamation case.

Knowing how to assemble an outfit on your own isn’t necessarily a requirement for fly-fishing on occasion—that can be outsourced to a guide (your “local counsel”)—but I highly recommend it. For example, learn to identify the different parts of a fly line and the purpose of each (backing, fly line, leader, and tippet), and practice a few key knots required to connect them to each other and to the fly at the end of the line (blood, clinch, nail, and surgeon’s, to name a few). Learning to do it yourself teaches a great deal about angling, even if you have the luxury of hiring a guide to manage it for you. A professional corollary: As a young lawyer (before the days of electronic filing), I was instructed on a few occasions to physically walk a pleading or brief over to the courthouse and get it on file with the clerk. It wasn’t necessary, but I discovered a great deal about the court system (in particular, the tremendous power wielded by court staff) in the process.

Learning the fundamentals of casting is much like studying legal writing in law school—you need to master the basics before you get creative. In law school, you may have been taught methods for organizing legal argument like IRAC. These tools help control the flow of legal argument, but they go only so far in drafting a sophisticated and persuasive legal brief. In fly-fishing, you can start catching fish once you can perform a few basic casts—e.g., overhead, false, roll—and you can safely “loop” your line in the air. But those casts won’t be effective for all fishing—you may eventually want to learn the double haul to reach distant targets in windy conditions, or the bow-and-arrow cast for precision in tight quarters. I use a variety of other casts I’ve naturally cultivated over the years that may or may not have a name (and they aren’t always pretty), but I’ve learned from experience how they can be effective for me. In short, whether in legal writing or fishing, the more experience you have, the more personalized your style becomes.

Finally, before you fish any waters (or practice law in any jurisdiction), buy a license from the proper authority and read the local regulations pertaining to your outing. Learn the local rules, as well as the “local” local rules that are easily missed by those who don’t regularly appear in that venue. Many fisheries have catch limits or are catch-and-release only, and they may require barbless hooks to prevent unnecessary harm to the fish. Read up on public access points and boundaries—don’t ever trespass on private property, but you may be able to access some private waters by hiring a local guide. Failing to abide by these rules will invariably get you in legal trouble. These rules and ethical obligations in angling are much like a lawyer’s duties under the rules of professional responsibility, which can vary among jurisdictions and types of practice. Get to know them. Hiring “local counsel” (i.e., a guide who knows the river) always helps.

Respect and Respond to Your Audience

A critical skill for all litigators is understanding the target audience—whether it’s the client, a jury, a trial judge, or an appellate court—and being able to respect and respond to their needs and priorities. The same is true of fly-fishing.

Encompassed in the notion of “respect” is the willingness to educate yourself about your target species—you will never excel at fly-fishing if you don’t get to know the fish. Innumerable resources are available online and through local outfitters from which you can quickly glean everything you need to know about sport fishing species. You may encounter native or protected species that are subject to special rules. For example, Colorado’s state fish—the stunning greenback cutthroat trout—was once thought extinct but, after successful conservation efforts, is now listed as threatened under the Endangered Species Act. You may also come across invasive species that anglers are directed to immediately kill and report to state and federal wildlife agencies. Consider the fearsome northern snakehead—designated as “injurious wildlife” under the federal Lacey Act—that can grow to over 18 pounds and breathes air, so it can survive for days on land.

Just as you should take some time to learn about your finned audience before you arrive at a fishery, you should investigate a client’s business before coming on to a case, review potential jurors’ public social media posts before voir dire, and explore a judge’s biography and court’s jurisprudence before arguing in court. At each stage, you should be asking yourself—what do they need, what are they interested in, what do they have the power to do?

To fly-fish effectively, you need to understand what the fish needs. All fish have the same basic requirements—food, clean oxygenated water, safety, and reproduction. These needs are always present, but how they are prioritized can vary dramatically based on the fish’s species, life cycle, and environment and what’s happening in the water at any particular moment. I think of these requirements like jurisdiction and venue.

First consider food, which is the most important factor in deciding how to approach a fish (unless you’re skilled in the art of trout tickling, which is a real thing). Many fish, including trout, engage in optimum feeding behavior—they will expend the least amount of energy necessary to obtain the most food possible. (One might view the avoidance of advisory opinions or issues that aren’t necessary to resolve a case as comparable “optimum decision-making” principles for judges.) For example, plentiful insect hatches are attractive because trout can gorge on a single food source all at once with relatively minimal effort (like class actions and multidistrict litigation, which can resolve many disputes in one proceeding or venue without the inefficiencies of separate litigation). Optimum feeding behavior also tells you a lot about where trout tend to hang out in a river. It takes more energy to chase drifting insects across open and fast-moving water, so trout will install themselves in eddies behind rocks, where they are protected from the bluntness of direct current, and then hover comfortably while the water curls around the formation, delivering bugs like a conveyor-belt buffet. (Clients love strategies that maximize results while minimizing costs.) Monster brown trout may be looking for more substantial meals—they will often hang in deep pools near riparian vegetation, waiting for the unfortunate mouse or frog or even baby duck that slips off the bank into the water. (Consider appellate lawyers who monitor juicy circuit splits that may interest the Supreme Court.)

Interest in food may cease altogether when another need becomes paramount. Trout, for example, are both predator (to insects, smaller fish, and small terrestrial birds and mammals) and prey (to otters, osprey, eagles, bears, raccoons, and, of course, humans). Whether a trout is inclined to go after a tasty meal or bolt for safety depends on what’s happening in and around the water. A trout that sees your looming shadow may fear a predator and spook for the cover of a deep bank. That doesn’t mean it’s unfishable—you just need to know when to step away and let the fish relax (no one likes to eat when they’re freaked out). A spawning salmon, on the other hand, cares only about moving up the river to spawn. This also doesn’t mean they are unfishable—you just adjust your tactics and flies. Years ago, in Ireland, I learned from my ghillie (Gaelic for “guide”) that while spawning salmon may be uninterested in food, they can be territorial—so presenting a garish fly in its personal space can irritate the fish into a strike. (Beware the taunting litigation opponent who goads you into a rash decision.)

As litigators, we have three primary audiences—the client, the court, and the jury—which you can think of as different species of fish. Like fish, they have different needs and priorities and moods, and you must learn how to read and respond to them according to the circumstances. Litigators are constantly balancing the demands and perceptions of their various audiences at the same time, making this skill set all the more challenging. (Admittedly, there is an aspect of artful deception in fly-fishing—an artificial fly with a hook—that distinguishes it from law practice, but put that aside. For the record, do not deceive your client or the court, artfully or otherwise.)

Steering a client’s case through each stage of litigation requires balancing the client’s specific interests in the matter against other priorities such as costs, business objectives, and concerns about public precedent—and those priorities can shift suddenly. A jury may be alert and attentive early in a trial, bored and indifferent in the middle, and angry and impatient at the end. A trial judge may be equally concerned with getting it right and avoiding reversal. Even in the trial court, your audience may shift to the appellate court when preserving error for an anticipated appeal. An intermediate appellate court with a crushing docket may have little bandwidth for a dozen points of error, even if they are worthy of review. A high court with discretionary review will care about more than just error correction in your case—it wants to know whether your appeal is worth taking because it presents an opportunity to shape the broader jurisprudential landscape or resolve a split. So, while an issue may have been compelling in the trial court, it may be of no interest at all to a high appellate court.

Fish with Your Senses, Not Just Your Rod

Anyone who has fly-fished before has probably heard the phrases “reading the water,” “matching the hatch,” or “stalking the fish.” These are mindfulness exercises that require you to set aside your expectations and assumptions and focus on what’s happening in front of you in that moment.

I learned a lot about these practices from a legendary Catskills fly-fishing guide named Ben Rinker who, with his wife Cindy, runs a bed-and-breakfast on the East Branch of the Delaware River, home to notoriously difficult-to-catch wild rainbows and browns. Still tense from frenetic Manhattan living, I was always anxious to get started in the morning. But Ben—who has an advanced degree in aquatic ecology in addition to his work as a guide and conservationist—would put our rods aside and we would sit at the river’s edge and just observe.

The first time we did this, I was laser-focused on whether the fish were noticeably feeding and disappointed when I spied none. Ben steered me away from that “point-and-shoot” way of thinking and educated me about “reading the water.” In a hushed voice (to avoid spooking the fish), he noted how a light wind periodically disturbed the water surface and how the rising sun was warming the shallows. We observed the shadows cast by passing clouds, leaning American beech trees, and a hovering bald eagle with a nest close by. We talked about how the water clarity and volume was affected by discharges from the reservoir that supplies drinking water to New York City. We mapped out promising riparian vegetation and rock formations, and estimated the best cast for presenting a fly to each.

Sometimes we would creep into the river and soak in the shallow edge of the current, picking up stones to inspect for clinging nymphs (young or larval aquatic insects), trailing our hands or a seine net in the water to catch bugs that might be emerging, and closely watching the water’s surface for clusters of adult dry flies suggesting a hatch. We would select a few flies from our tackle box that most closely resembled the observed insects in size, coloring, and life cycle (Ben ties his own flies to suit the river, and there’s none better). This is “matching the hatch.”

Even after selecting a few promising patterns, we would often sit, silent and motionless, watching for trout movement in the vegetated banks, eddies, and foam lines where currents converge and collect insects and debris. The way a fish “rises” may tell you something useful about what it’s eating. Is it a classic rise that breaches the water’s surface? Would you describe the action as jumping, slapping, sipping, slurping, gulping, swirling, bulging, bending, or flashing? Do you see fins? These things provide information about what the fish is eating and where. (I love these descriptions because, as in appellate briefing, word choice matters but it’s always subject to interpretation based on context.)

Then we “stalk the fish.” Walking slowly and softly—preferably without casting a shadow on the water—we maneuver to the best possible casting position. Trout have great senses and are always on the alert for danger (you don’t want to spook a trout from the riverbank any more than you want to offend a judge before you make your case). You may only get one or two shots at a fish—so carefully mind your actions, choose your fly, and execute your cast.

All of these are mindfulness skills that can be translated into effective litigation strategies. Shift your thinking away from a linear win-loss strategy and focus on the environment in which your case arose and is being litigated. Appellate lawyers are frequently brought into a case long after it started—and often after the trial is done. The first introduction will be from the client or trial counsel, but it’s equally important to separate from that perspective and evaluate the case anew based on the current moment—what may have been critical to the trial team may have no bearing on appeal. Accomplished appellate lawyers also don’t “chum” the waters in an appeal—they study the case’s environment (internal and external) before selecting the issues and arguments that are most likely to attract the target audience. That analysis changes at each stage of litigation—what matters to the jury, the trial court, the court of appeals, and the Supreme Court will vary. Understanding those differences is critical to making good choices about what issues to raise and how to present them.

Learn How to Present the Fly

There is one lesson in particular I contemplate often in my law practice: the commonalities among effective casting, legal writing, and oral advocacy. Fly-fishing requires you learn how to “present” the fly: propel a virtually weightless feathered hook tethered to the end of a line dozens of feet long to alight on a specific spot on moving water (often in wind), and then know what to do with your line once you manage to get the fly there. Successful appellate strategy can be described the same way.

Unlike spin casting—which relies on the blunt weight of a lure to heave the line on a linear path to its target—fly casting requires managing a weighted, airborne line on multiple planes while mostly ignoring the fly. Fly casting is not about speed or power. It’s a surprisingly relaxed movement that integrates rhythm, momentum, and timing and depends on one’s peripheral awareness of the line’s weight and direction as it (one hopes) glides through the air and ultimately toward your target. In fact, speed and power are often enemies of effective casting, and can leave you with tangled lines, lost flies, and spooked fish. Controlled, deliberate movements undertaken with a specific target in mind are always preferable to rapid or random exploratory casting. The same is true in appellate litigation: Efficient, deliberate, and targeted argument with a specific goal in mind is always better than the “shotgun” approach that hopes blindly to hit a target (or, as in discovery—forgive me—a fishing expedition).

In fly-fishing, casting is how you present the fly to the fish in the hope it will rise. A cast is effective if it delivers your artificial fly to the target in a way that convincingly mimics a real insect or other live food source. You can have the ideal fly for the moment, but if you don’t cast or present properly, it’s unlikely to earn a strike. (Conversely, you can lay down an ideal cast to a sighted trout, but if the fly is wrong for the river or season, the fish is likely to scoff at it.) Carefully select the most viable targets within your casting reach—that may be a sighted trout or a promising (“fishy”) hole—and take them one at a time, starting with the nearest and most promising. Make a few precise casts at slightly different angles that deliver the fly just far enough upstream that it can settle without startling the fish, and then drift or sink with the current into the fish’s field of vision. The cast doesn’t need to be visually perfect—it just needs to reach the target in a way that presents the fly naturally. If you backcast into the weeds or trees behind you, you’re unlikely to make it to the water at all. If your cast lands immediately on top of your fish, or it’s overly forceful and the line slaps the water’s surface, the fish may spook and bolt for safe cover. If you cast too short or downstream of your target, the fish might not see it at all (although you could get lucky if there’s an interested neighbor). If you cast too far, you may cast right over perfectly viable targets and end up snared in the opposite bank. If the fish ignores or doesn’t see the drift, wait until the fly naturally passes the trout’s field of vision and pick up the line as gently as possible to avoid drag in the water, and try again. You’ll often get one or two solid opportunities at a fish or a promising hole—but unless the water has multiple feeding fish, repeated casting to the same spot can be counterproductive, and you should consider moving on to the next promising target. Persuading a fish to take interest in a fly is a study in and of itself—but it’s a long way from hooking, much less landing, a fish.

In litigation, written and oral advocacy is how you “present” your legal argument to the court (or jury) in the hope it will rule in your favor. A court will reject an otherwise compelling legal argument if it’s not communicated promptly, effectively, and persuasively, just as a persuadable fish will often refuse an otherwise ideal fly that isn’t presented naturally. (Conversely, you can write a breathtaking brief, but if the legal issue is wrong for the case or the court, you’re unlikely to prevail.) Carefully select the most viable legal issues you can argue with confidence—it may be a jurisdictional issue, a dispositive failure of a claim, or a waiver problem—and take them one at a time. Make clear and precise arguments that account for different perspectives and alternatives, and yet still logically lead the court to the conclusion that your position is correct and should prevail. Your brief or argument doesn’t need to be perfect—it just needs to connect with the court in a way that communicates your argument clearly and persuasively. If you get sidetracked by unimportant procedural history or irrelevant squabbles, your most viable arguments will suffer from the distraction. If your argument is too aggressive or the relief you request is an overreach, the court may spook like your wary trout and look for ways to narrow or avoid your issue. If your argument falls short by failing to guide the court to a justiciable result, the court might not address it at all. If you go too far and engage a debate that is unnecessary to win the case, you may end up tangled in a Pyrrhic legal battle and lose. If the court ignores or doesn’t pick up on a viable issue, consider a different procedural motion in the trial court or, on appeal, a motion for rehearing and appeal to a higher court. If your court can’t be enticed and your legal issue is important to the client beyond one case, explore other venues or jurisdictions where the issue might be raised again and consider an amicus. But just like casting the same fly over and over to an unresponsive fish, repeatedly raising the same legal argument to a court that has squarely rejected it is counterproductive, and you should move on. And, of course, winning a verdict or persuading a court to take interest in your appeal is one thing—but it’s often a long way to winning the case.

Understand the Importance of Diversity and Conservation

As a woman lawyer and angler, I cannot write on this topic without touching on diversity and inclusion, which is a challenge in the fly-fishing world just as in the legal profession. They both tend to be disproportionately older, white, and male—and that’s a problem for the health and sustainability of both industries.

Growing up, I knew one woman who fly-fished—my mother, who was raised in a family with deep Idaho roots and a love for the sport. When I took a year off from college in 1995 to fly-fish in Ketchum, Idaho, I don’t recall meeting any women guides—although I’m sure there were a few back then, and I’ve met a fair number in recent years. And in my over 30 years as an angler, I recall meeting only a couple guides of color. Most of my learning experiences have been with men, and more than a few of them have involved fishermansplaining—an experience to which I learned to respond by ignoring them and catching more fish. On a couple of occasions, fishing alone on remote river stretches or with only men, I had encounters with male anglers that made me feel distinctly unsafe. There are few women-owned fly-fishing businesses, and fly-fishing gear made for women is still woefully hard to find—even though there’s clearly a market for it. (At least my fishing vest—a man’s extra-small—has lots of pockets.) I’ve been on fishing excursions when I acutely empathized with Sarah Weddington, who, when she argued Roe v. Wade at the U.S. Supreme Court, discovered there was only a men’s restroom in the lawyers’ lounge so she had to go down to the basement.

Although there has been a distinct increase in the number of women anglers in recent decades, just as there has been a rise in the overall number of women lawyers in the legal profession, those demographic shifts alone aren’t enough to overcome inertia. Stakeholders in the fly-fishing world are realizing that affirmative steps are needed to prioritize diversity and inclusion if there’s going to be meaningful change. Chris Wood, the president and chief executive officer of Trout Unlimited, recently called for greater diversity in its membership because the group’s “ability to remain effective in the future will hinge, in part, on our ability to bring more women, people of color and younger members into the organization.” “This is not a nod to political correctness,” he wrote, but a recognition that the more the organization matches broader demographics, the more effective it will be in achieving its conservation goals. Diversity is good for business too. In 2017, Orvis launched its “50/50 on the Water” campaign promoting gender parity in fly-fishing by introducing women to the sport and mentoring up-and-coming women in the angling industry—and, of course, selling gear tailored for women.

Diversity is impossible to achieve without inclusion. The angling corollary is conservation. Take the case of Lonesome Larry. In the late 1800s, tens of thousands of sockeye salmon made the 900-mile journey from the Pacific Ocean to spawn in Idaho’s Sawtooth Basin. Abundant salmon populations were a keystone species that balanced ecosystems throughout the Pacific Northwest. Overfishing, dams blocking migration, irrigation diversion, rising water temperatures, and other water quality issues have decimated salmon populations over the last 200 years. In 1992, a single sockeye—dubbed Lonesome Larry—survived the trek to Redfish Lake, where he hatched.

Lonesome Larry prompted significant conservation efforts to protect the salmon spawn runs. These efforts include removing or minimizing impediments (e.g., dams and hydroelectric turbines), building up attractive habitat in and around the river, and instituting significant stocking programs to increase the population. Government agencies, environmental and conservation groups, and the sport angling community frequently partner in these efforts. We need the same sort of conservation efforts in the legal profession—including partnerships among the government, bar groups, clients, and lawyers—to achieve and maintain health and balance in our professional ecosystem.

Cultivate the Art of Letting Go

In comparing these two endeavors, I recently had a revelation that threw me for a bit of a loop (you may think that’s a boxing reference, but to me it’s an angler idiom). It implicates a proficiency I’ve come to realize is perhaps the most important in angling—mindfulness, complemented by its mirror image meditation, which can be a challenge for litigators, me included.

I’ve always thought myself rather inept at the stillness and quiet contemplation that I assumed mindfulness and meditation require. I have a busy (OK, sometimes anxious) mind that calms when I am problem-solving or crossing items off a task list. Mindfulness I can do passably well when I’m in the “briefing” zone or preparing for an argument—I can focus on what’s immediately before me to the exclusion of extraneous distractions. But I struggled with meditation. When I have an exciting new case or a looming deadline, sitting silently and thinking about nothing but maybe my breath—even for a few minutes—has always made me downright itchy. I do not mean to suggest doubt or criticism for these practices—to the contrary, their benefits are amply established. I just felt I was an abject failure at them.

I’ve learned that my conscious resistance to meditation in my professional life reflected a misunderstanding about the practice and a failure to appreciate that I do meditate—and it so happens I’m quite good at it. (Imposter syndrome, anyone?) Many of the “skills” described here are actually great examples of mindfulness and meditation. Here’s the rub: Unlike the many other skills and strategies that I’ve adapted to both my litigation practice and angling, I haven’t fully translated mindfulness and meditation effectively from my avocation to my vocation.

In talking about this with my friend Jeena Cho—lawyer, mindfulness instructor, and coauthor of The Anxious Lawyer—she pointed out that this disconnect may have to do with the fact that my love for angling is not outcome-dependent. She says: “You can still have a good day even if you never catch a fish. However, in litigation, you’re only as good as your last win.” She’s right. Being able to let go of the narrative about my self-worth being completely attached to the outcome of a case, or a paycheck, or a promotion . . . that is just one example of how the meditation and mindfulness I employ so well in angling can and should be applied in my appellate practice.

I won’t lie—catching a big fish on a tiny fly made of feather and fur is uniquely exhilarating. But it’s not what I’m thinking about when I’m on a river. I will spend most of my waking day studying a fishery, exploring the diversity of its waters, absorbing every observable sensation of the landscape around me, and—when the moment is right—casting to fish. I can cast for hours in silence without noticing the time or rain or chilly temperatures. I return from each angling experience feeling centered and invigorated, less anxious and stressed, with renewed energy for tackling the rigors of my appellate practice. I always feel that way regardless of whether I catch a single fish.

This feeling isn’t a coincidence. Effective fly-fishing requires emptying your mind of distractions and focusing integrated mind-body actions and reactions in the moment. That’s basically mindful meditation, and it’s great for the brain. Mindfulness is being “unconditionally present” in the moment without judgment, aware of what you’re doing and what’s happening in the environment around you. Mindful meditation focuses your senses on what’s immediately in front of you and frees you from what has happened in the past and what may happen in the future. Studies show that meditative mindfulness reduces stress, anxiety, depression, and fatigue; that it improves cognitive function, attention, and memory; and that it promotes self-regulation and empathy.

Mindfulness, with its focus on “the now,” intuitively seems to conflict with much of what we do as litigators—fixing or complaining about things that were broken by someone else in the past; evaluating present action based on future risk; mapping out the various scenarios that might come to pass in a jury trial, judgment, or appeal. However, these concerns can unnecessarily cause anxiety. For example, when I am writing an appellate brief, I need to focus on that—fully, rather than worry about the impact that losing the appeal will have. Such fortune-telling only distracts me from doing my best in the moment.

Mindfulness also feels irreconcilable with the never-ending demand for the results by which we judge ourselves as lawyers. Many of us have spent countless hours agonizing over how to bring in more clients, how a court will decide a case, if we will meet our hours, or whether our compensation will reflect the whole of our contributions. But constantly worrying about the “what-ifs” keeps us from doing our best work. Jeena Cho commented, “We know that when you’re in a stressed or fight-or-flight state, you are unable to access higher cognitive functions such as imagination.” So counteracting the constant mantras of winning and profits may sometimes feel impossible—but it’s critical to a healthy, joyful, and successful practice (I think Mr. Frost would agree).

I don’t feel stressed, anxious, or depressed when I’m fly-fishing. I feel present and strong and alive, able to put the stress of the rest of my life out of my mind. I am focused on the here and now. My self-worth isn’t dictated by the catch. What I’m still learning is how to apply the art of letting go of the outcome and focusing on the task at hand to my professional life—and that, dear reader, is a work in progress.

Reclaim Your Art

All lawyers are results oriented—we have to be. But that inclination, when untempered, comes at a real cost to lawyers individually and the profession at large. Fly-fishing teaches that embracing the process, without judgment, is plenty effective in achieving results—but it makes the whole endeavor more enriching. So, reclaim the art of your process—as a first step, I humbly suggest a day on the river.