How Much Should You Sleep During Trial?
I had my first trial within a year of being admitted to the bar. It was a business dispute in Delaware Chancery Court and I was the junior attorney on a team of about six. Joining at the very last minute, I never really got the full story about what had happened with pre-trial preparation. But when I showed up in Delaware two days before trial, there was still a mountain of work to do. For example, we did not even have complete set of exhibits when I arrived.
The next ten days were, without question, the least that I have ever slept in my life. It included two nights with zero or essentially zero (less than an hour) sleep and averaged out to about three hours a night for the entire trial. The paralegal was on a similar schedule and one of my key responsibilities was to subtlety nudge her when she nodded off, which happened repeatedly throughout the proceedings. After the entire thing was over, I slept from 7 pm one night until 4 pm the next day and continued to sleep for 12-15 hours stretches for days until my body managed to repair whatever I had done to it. While there can be a lot of long-term sleep deprivation involved in raising young children, [1] the acute sleeplessness involved in trying a case in that fashion really hit me on another level.
We don’t try cases that way here and wouldn’t recommend that you do either. While you will retain the capacity to walk, talk, and even perform some useful work when suffering from extreme sleep deprivation, your ability to think clearly, make good decisions, and speak in a manner that is remotely coherent or persuasive is markedly impaired. Having done it myself, I can subjectively say that everything takes longer, feels harder, and needs to be checked for error much more closely.
But how much should you sleep during trial? And if you get too tired, can you safely nod off in the courtroom?
Most doctors will tell you that an adult should get 7-9 hours of sleep per night and that less sleep risks impairment. But how much less and how impaired?
A systematic review of sleep research published in 2023 attempted to answer this question by examining 61 prior studies of sleep deprivation as a factor in automobile accidents. [2] The review began from the intuition that fatigued drivers, like drunk drivers, are medically impaired. Assuming that, the authors sought to come up with an evidence-based threshold, akin to a blood alcohol level, for saying that a driver is too tired to safely drive.
The authors observed that at a blood alcohol level of 0.05 (legally impaired in most states, including NY), a driver’s chances of being in a crash roughly double. [3] So, they attempted to determine how little sleep resulted in a similar doubling of crash risk.
The authors concluded that in the aggregate, crash risk at least doubled when drivers had roughly 4-5 hours of sleep the previous night. [4] The authors noted that at least some data showed measurable impairment even for drivers who had 6-7 hours of sleep, but that the data was “lower in severity and less consistence in… occurrence.” But as a policy recommendation, the authors suggested, as a minimum, mandating that drivers have slept at least four hours the previous night before getting behind the wheel. [5]
Most attorneys would understand that they cannot try a case while legally intoxicated. Though not all. But staying up late into the night “preparing” for trial the next day, while more understandable, may be just as bad. Preparation is of no value if you stumble though your presentation like a zombie or fumble a key argument because of fatigue. And it certainly doesn’t look good to the judge or jury if you fall asleep in the courtroom.
But all joking aside, can an attorney sleep in court? You’d think that the answer would be obvious (“no”), but the law is a lot less settled than that. The Federal Courts of Appeals are divided about how to best assess whether an attorney has provided “ineffective assistance” to a criminal defendant in circumstances where everyone agrees that the attorney was asleep for at least some of the trial. Indeed, no circuit has adopted a per-se rule that any sleeping constitutes ineffective assistance.
So, instead the courts routinely grapple with what would seem to be an insane question: “How much can an attorney sleep during trial without it being a problem for his or her client?” And the answer they all come back with is “Well, at least a little.”
Consider United States v. Massimino, [6] where the Third Circuit addressed a federal habeas petition brought by a defendant claiming that his lawyer had slept “every day’ during trial and that either him or his codefendant “would kick [the attorney’s] chair to wake him.” At an evidentiary hearing, three witnesses testified that they observed the attorney nod off for at least part of the trial, though they disagreed about how much of it. A fourth claimed not to have seen the attorney sleep but acknowledged that he sat at the table in front of the attorney and was not able to see him. On review, the Third Circuit concluded that the defendant had not proven that his attorney had slept for a “substantial portion” of his trial and thereby was not denied the effective assistance of counsel.
And in Tippins v. Walker, [7] the Second Circuit struggled with a case where a criminal defense attorney slept “every day” during the trial, including during the testimony of two critical witnesses. The presiding judge had acknowledged that the lawyer was sleeping every day, and specifically woke him up on two occasions. Nevertheless, the trial judge concluded that the defendant had “received a fair trial” and “was effectively represented by counsel.” [8]
While one would think this a straightforward case of ineffective assistance of counsel, the Second Circuit was loathe to so-rule, writing at length that, hey, sometimes trials are boring and maybe you don’t need to be awake the whole time:
[T]here are real dangers in presuming prejudice merely from a lack of alertness. Prolonged inattention during stretches of a long trial (by sleep, preoccupation or otherwise), particularly during periods concerned with other defendants, uncontested issues, or matters peripheral to a particular defendant, may be quantitatively substantial but without consequence. At such times, even alert and resourceful counsel cannot affect the proceedings to a client's advantage. [9]
* * *
We agree with the respondent that the appearance of “sleeping” may cover a range of behavior. Lawyers may sometimes affect a drowsy or bored look to downplay an adversary's presentation of evidence. [10]
* * *
The point is well taken that consciousness and sleep form a continuum, and that there are states of drowsiness that come over everyone from time to time during a working day, or during a trial, for that matter. [11]
Nevertheless, the court ultimately granted the habeas petition, adopting the fairly sleep-friendly rule that a defendant is only per-se deprived of the effective assistance of counsel “if his counsel was repeatedly unconscious at trial for periods of time in which defendant's interests were at stake.” [12] So counsel can sleep through the boring bits, so long as there’s no proof that they repeatedly slept through something that matters.
The Massachusetts Supreme Court, writing last year, came to a somewhat different conclusion in Commonwealth v. Watt. [13] Borrowing from federal law on an issue of first impression, the court noted a disagreement amongst the circuits on the “sleeping attorney” issue, with the Fourth, Fifth, Sixth, and Ninth Circuits focusing on whether counsel slept for a “substantial portion” of the trial, while the Second and Fifth Circuits examined whether counsel was “unconscious at critical times.” [14] Combining these approaches, the Massachusetts Supreme Court adopted a somewhat stricter approach to sleeping during trial, holding that, at least in Massachusetts, an attorney may neither sleep during a “substantial portion” nor during “critical times.” [15]
Some of this openness to sleeping attorneys is probably driven by a general skepticism toward Sixth Amendment challenges to criminal convictions. But even apart from the habeas context, the law is oddly forgiving of folks who fall asleep when they ought to be paying attention. For example, in New York there is a “rebuttable presumption” of negligence where a driver falls asleep at the wheel. [16] Because that presumption is “rebuttable,” a driver is free to argue to the jury that they were not, in fact, negligent when they drove despite being so tired that they ultimately fell asleep. As the Third Department wrote (bizarrely) in Butler v. Albert:
Weariness, as everyone knows who has tasted it, is a matter of degree; and sleep sometimes presses down without warning. Its presence is not always readily predictable, even with reasonable care and foresight. We think merely because defendant said, in a full retrospect of events, that he was “tired” the jury did not have to find he was negligent driving the car feeling that way. [17]
And similarly, you will struggle to find public records of attorneys disciplined for falling asleep during trial. Despite a fairly extensive body of federal habeas cases brought by clients whose lawyers slept during trial, attorneys seldom face any consequences for nodding off. In one exception, the Supreme Court of Nevada suspended an attorney for two years after “he was found asleep in his car with the motor running in the courthouse parking lot, and his failure to appear resulted in his client, who was in custody at the time, staying in custody when he otherwise likely would have been released.” [18] But even there, that case also involved a panoply of non-sleeping misconduct as well and it is not clear that the attorney would have been punished had that been the only problem.
So, what can we take away from this? If you are an attorney, you should ensure that you get at least five hours of sleep before showing up in court for trial, and ideally more. If you would not come to court intoxicated, do not come to court similarly impaired by fatigue. If this means starting your trial preparation earlier, start it earlier.
And if you’re a criminal defendant and your attorney is falling asleep during trial, make a record of it right then and there. Because you cannot count on the courts to take seriously the prejudice of a lawyer sleeping in the courtroom.
[1] Particularly if one of them does not sleep properly for two years, causing you to learn that the neighborhood Starbucks opens at six and you can sit there sipping coffee in the dark for an hour until the grocery store opens at seven.
[2] Madeline Sprajcer et al., How Tired is Too Tired to Drive? A Systematic Review Assessing the Use of Prior Sleep Duration to Detect Driving Impairment, Nature and Science of Sleep (April 2023) available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10082604/
[3] Sprajcer, supra n.2. This risk actually doubles again at 0.08 (legally intoxicated in every state), meaning that a driver with a 0.08 BAC is four times as likely to crash their car as a driver who has not consumed alcohol.
[4] Id.
[5] Id.
[6] 827 F. App'x 176, 178 (3d Cir. 2020)
[7] 77 F.3d 682 (2d Cir. 1996).
[8] Id. at 687.
[9] Id. at 686.
[10] Id. at 688.
[11] Id. at 689.
[12] Id. at 687 (emphasis added).
[13] 493 Mass. 322 (2024)
[14] Id. at 329.
[15] Id. at 331, 332.
[16] Spivak v Heyward, 248 A.D.2d 58 (2d Dep’t 1998).
[17] 1 A.D.2d 43, 45 (3d Dep’t 1955).
[18] Matter of Discipline of Novi, 134 Nev. 956, 422 P.3d 707 (2018).
