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Effective Advocacy And The Questions Posed At Oral Argument

Posted in News and Analysis

Oral argument is important:  recent scholarship shows that a strong performance at oral argument can influence the result of an appeal.  In a recent post, we reported that we observed oral argument at the Sixth Circuit and generally found the court to be a “hot” bench. The panels we watched asked the attorneys an average of more than 30 questions per case. But we were also interested in what we could learn from the types of questions asked by the judges during oral argument.  When judges ask questions, is it usually to advance an attorney’s argument, to disagree with the argument, or to clarify a factual point of the argument?

In “The Illusion of Devil’s Advocacy:  How the Justices of the Supreme Court Foreshadow their Decisions during Oral Argument,” 6 J. App. Prac. & Process 271, 278 (2004), Sarah Shullman proposes that the frequency, substance, and tone of voice of the Supreme Court Justices’ questions can reveal the outcome of the case before a written opinion is issued. We decided to apply Shullman’s methodology to oral argument at the Sixth Circuit. Even though we will have to wait for opinions to be issued in order to fully evaluate this question, there is a lot to be learned from the questions themselves.

The questions posed by judges in our sample of 18 cases were usually either neutral or slightly aggressive. Neutral questions were directed to clear up the facts, or to review issues that had been presented before the district court. If a judge seemed to disagree strongly with an attorney’s argument, he or she would pose aggressive questions. Oftentimes, aggressive questions were presented as a string of multiple questions, with the judge interrupting the attorney to ask another question before the attorney could fully responded to the previous one. In one case, a judge became so irritated with an attorney’s argument that a second judge on the panel asked him to stop firing questions and to just listen to the attorney.  The judges also sometimes played “devil’s advocate” and asked more questions of the party whose argument they did not support.

Less frequently, judges used questions to advance their own positions before their fellow judges.  On these occasions, they would usually direct attorneys to respond to opposing counsel’s argument or begin questions by rephrasing the attorney’s argument in an attempt to better state the position. But most questions were aimed at scrutinizing bad arguments or to help the panel fully understand a particular factual issue.

Unfortunately, many attorneys stick to a pre-written script and fail to craft their arguments to the judges’ concerns.  An effective oral advocate can discern a judge’s position by paying close attention to her questions, tone of voice, and body language.  As Judge Hatchett of the Eleventh Circuit wrote:  “By looking at a judge’s body language, and listening to the questions he or she asks, an effective appellate oral advocate should be able to conform his or her argument to the judge’s viewpoint.”  Judge Hatchett notes that this skill is especially relevant for the appellee, who should be closely watching the judges’ reactions to the appellant’s argument.

Once the cases we watched are decided, we will follow up with any links between the judges’ questions, their perceived positions during oral argument, and the result of the appeal.  Thanks again to Lauren Henderson, a law clerk at Squire Sanders, for her work on this series on posts on oral argument.