July 11, 2007

"The secret to successful advocacy is simply to get the Court to ask your opponent more questions."

That's an old wisecrack from John Roberts, cracked back when he was an appellate judge, based on his observation that the lawyer who gets asks the most questions usually loses -- according to a count of his, 86% of the time.

Tony Mauro applies the theory to the Roberts Court:
A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored....

Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25 -- about half.
Why do you ask more questions of the side you disagree with? Should we think it shows unfairness -- that you're trying to impede the lawyer you want to lose? Mauro quotes Lawrence Wrightsman, author of "The Psychology of the Supreme Court," who is critical, specifically of Roberts, because "he is setting a higher standard for one side than for the other."

I don't think there's any unfairness here. Wrightsman's point doesn't make sense to me. It's natural to keep quiet when someone is making statements you agree with and to stop someone who's saying things that strike you as wrong. A question reveals to the advocate what your sticking point is, and a good advocate picks up on that and solves your problem -- or realizes that you are a lost vote and uses the occasion to persuade those who can be persuaded.

There's no reason why a judge should come to an oral argument with an open mind and offer the lawyers a level playing field. They've read the briefs and ought to know what they think already. The oral argument gives them a chance to probe at remaining tough spots in the argument.

You might say it's not fair to consume the time of the lawyer for the side you think should lose, but presumably all the justices ask more questions of the side they disfavor, both sides have their time consumed according to how many justices are predisposed to decide against them. If you have a disproportionate number of justices against you, maybe you have a weak argument, and if you don't, they think you do, and you'd better have some good answers. It would only be worse if they sat there is stone silence, waiting for you to shut up and leave.

There are some things that really are unfair, but you can't discover these by merely counting the questions. What is unfair is asking overlong questions for the purpose of using up the time and not letting the lawyer answer. It's also unfair to use the time to make the argument for the other side when it's not really a specific question. And it's not fair to take up much time asking questions when your mind is made up if there is another judge puzzling over questions that his decision actually depends upon.

17 comments:

Gahrie said...

So Justice Thomas gets attacked because he doesn't ask enough questions, and Chief Justice Roberts and Justice Scalia get attacked because they ask too many.

You just can't win with some people.

DrewC said...

I saw an ABA CLE program in the early 1990s on U.S. Supreme Court advocacy. Then Judge Stephen Breyer was on the panel. I recall that he said that he went into oral argument with a strong idea of how he was going to rule but that oral argument changed his mind about 10% of the time.

vet66 said...

Note to lawyers: avoid asking questions you don't know the answer to, anticipate questions from judges that go directly to the weak aspects of your position, acknowlege the opposing point of view and it's logical impact on your position, address the conflict and adjust/admit accordingly.

I call it the rule of A's.

Paul Snively said...

I'm trying to imagine in what domains of discourse the greater number of questions don't arise out of finding oneself at some point on the spectrum between lack of understanding and disagreement. I can say from personal experience that this is how it works in, at the very least, marriage and software development, for example.

Paul S. said...

A federal judge once told me he asked more questions of the losing side to make sure he wasn't missing something before he made up his mind, proving once again the value of Occam's Razor. Especially when you are dealing with intellectually honest people, which Roberts clearly is.

Zeb Quinn said...

There's no reason why a judge should come to an oral argument with an open mind and offer the lawyers a level playing field. They've read the briefs and ought to know what they think already. The oral argument gives them a chance to probe at remaining tough spots in the argument.

Since I've never done any appellate work I've never argued to SCOTUS or to any other appellate court, but in 25 years of trial work I've argued more summary judgment motions to trial court judges than I care to count, in both federal and state courts. Like appellate briefs, SJ motions are briefed well in advance, but in my own experience I discerned many occasions wherein I am certain that judges changed their minds during the course of oral argument. I don't know why SCOTUS would be any different.

Yes, judges ask more questions to the side that they disfavor, but the nature of the questions are a window into their thinking and well-prepared counsel should regard it as an opportunity.

Fen said...

I've always thought it was a type of hazing from the Justices. They see 3 moves ahead, they already know your logic is faulty, but they are bored & want to play with their food.

Fen said...

...okay, that may not be representative. I was thinking of Starr's argument re flag desecration. They really raked him over the coals.

Eric said...

It's not like a judge shows up at oral argument without any inclination of what the case is about. Even if all they've done is read the clerk's bench memo, a judge will have an initial inclination as to the result in the case. It is therefore completely understandable that they would ask more questions of the position they are less comfortable with.

But to go further, the side asked more questions should welcome the opportunity to present their side. This is their last chance to change a judge's inclination. They may not change the judge's (s') inclination, or they may confirm it, but it's better than not being asked any questions at all if one assumes a judge already has an idea of the result when they show up at oral argument (except in the case of completely wacko pro se appellants, of which a judge might not ask any questions).

paul a'barge said...

This is a joke, right?

These guys give more time, attention and questions to the side away from which they tilt, and folks are interpreting this as unfair?

What is with you people? Is down now up in your world?

amba said...

Do law professors ever become judges? Would you ever have any interest in becoming one, or is your interest purely "from the stands"?

Just curious, because good judging is something you've given so much thought to.

Troy said...

Riffing off amba -- then you could hold the box of wine guy in contempt and throw him in jail if he sassed you.

Althouse -- she'll throw your butt in jail!

boldface said...

Why should it surprise anyone that judges direct more questions to the attorney whose argument they view with skepticism? When I had my Supreme Court argument it was challenging to field and answer the questions, and satisfying that I could do it, but it was also clear to me when I was done that I probably was going to lose.

Ann Althouse said...

Amba: As I've said before, I'm not the judge type. I lack judicial temperament, in my opinion. It's not a life that is to my taste at all.

Seven Machos said...

Oral argument is utterly for show, particularly at the Supreme Court level where -- I hope and pray -- the judges actually have read the briefs.

Mortimer Brezny said...

As I've said before, I'm not the judge type. I lack judicial temperament, in my opinion. It's not a life that is to my taste at all.

But you'd give new meaning to the term "hot bench".

Simon said...

Ann said...
"There's no reason why a judge should come to an oral argument with an open mind and offer the lawyers a level playing field. They've read the briefs and ought to know what they think already. The oral argument gives them a chance to probe at remaining tough spots in the argument."

I occaisionally see various criticisms levelled at justices - particularly Thomas - for arriving at oral argument without an open mind to the case. But that seems to conflate arriving at oral argument with one's mind made up with taking the case with one's mind made up. Of course, that's false for precisely the reason you identify: by the time oral argument comes around, the judge will have read at least a petition for cert, the opinion of the court below, a merits brief and a reply brief (to say nothing of amicus briefs, potentially a reply brief at the cert stage, opinions on the same matter from other circuit courts, and so forth). Sometimes oral argument changes minds, but there's no inherent reason why it ought to.

IIRC, I'm pretty sure that there's a note in The Brethren that implies that at least at the time Blackmun joined the court, Brennan and Marshall were already writing opinions before oral argument.

Fen said...
"...[T]hey are bored & want to play with their food."

The best description I've read of Scalia's approach to oral argument is "a big cat batting around a ball of yarn."

In the interests of collegiality, I'll expressly rather than implicitly concur with Mort's 3:22 comment.