Posted by Eugene Volokh:
Answering Questions at Oral Argument:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248459505
Today, I'll close my blogging of excerpts from Mayer Brown's
[1]Federal Appellate Practice treatise with two items about oral
argument. First, answering questions:
Because the greatest value of oral argument is the chance to learn
what the judges find important about a case and to respond to their
concerns, treating judges� questions as bullets to be dodged is
self-defeating. Questions from the bench are an opportunity to
assuage a judge�s concerns at the very moment that they seem most
pressing to the judge.
Accordingly, questions should be welcomed and answered, not
resented or evaded. Moreover, it is considerably more likely that
you will retain the judge�s attention when answering his or her
question than when giving your prepared remarks. And when a
question is asked during your adversary�s argument, you will again
have an especially attentive audience when you refer to and comment
upon the implications of the judge�s question and the adversary�s
response.
Although the temptation to postpone answering a question may be
strong, especially if the question relates to a subject the
advocate plans to reach later in the argument, the temptation
should be resisted at all costs. Never, never say: �I shall be
addressing that issue later in the argument.� In the heat of
argument, a belated response to a deferred question often escapes
notice, or is addressed only after the judge who initially asked it
has already tuned you out. In addition, further questioning may use
up your time, so that you never have a chance to reach the answer
to the question at the stage you would have preferred to confront
it.
The time when a judge asks a question represents what educators
call the �teaching moment.� Since you are there to connect with the
judges who will decide your client�s fate, do not squander the
teaching moment. It may be permissible to give a brief but
responsive answer and then to add that you plan to address that
issue at greater length later. Counsel is, however, generally
better served to reorder the oral argument, if necessary, and to
accelerate the full discussion of the point once a judge�s question
manifests current interest in it. Moreover, counsel are likely to
find themselves subject to judicial admonition for not responding
promptly and directly to questions they are asked. [Footnote: One
anecdote from a Supreme Court argument, perhaps apocryphal,
concerns a prominent advocate who was asked by Justice O�Connor
during the course of his argument how he distinguished a certain
case. He first responded that it was covered in the brief, but
Justice O�Connor persisted. He then demurred on the ground that the
explanation would be complicated and time-consuming, to which
Justice O�Connor retorted: �You�re here, we�re here, why don�t we
just go ahead and discuss it?� At this point, the advocate was
compelled to admit that he was unfamiliar with the case.]
([2]Show the rest of the excerpt.)
One possible exception to this advice, however, arises when counsel is
in the midst of answering another judge�s questions; in that case,
counsel should seek to answer both sets of questions as expeditiously
as feasible. In this vein, a question that appears to call for a
yes-or-no answer should, if at all possible, be given such an answer,
following which the advocate is free to elaborate, qualify, or
explain.
At the same time, if the question involves a peripheral point, counsel
need not spend more time on it than a candid and responsive answer
requires. Counsel then should segue back to his or her main points.
All too often, novice advocates who have taken perhaps too much to
heart the importance of the judges� questions finish an answer and
then stare inquiringly at the judge, as if waiting for a nod of
approval. This silence often encourages further questions, sometimes
of little relevance. Counsel would be best served by switching quickly
and smoothly back into the argument after responding to a question. An
effective technique to signal closure is to turn or direct one�s gaze
slightly away from the questioning judge and toward the rest of the
panel.
If counsel does not know the answer to a question about the record or
about a legal point that has not been briefed, it is appropriate to
offer to submit a supplemental memorandum within a short period after
argument -- a few days or a week, for example. In the case of a new
legal point that is potentially adverse to your position, it is
legitimate to point out that your adversary has not raised the point.
On the other hand, one cannot propose supplemental briefing in
response to tough questions on issues that have been briefed. In such
a case, you will just have to do your best -- which you should be
ready to do if you have prepared adequately. At all events, you should
view hard questions as an opportunity to deal with what the court may
see as the crux of the case.
If a question is unclear, counsel should ask for clarification. This
must be done carefully. Judges do not like to be questioned -- that is
their role. Therefore, it may seem impertinent to respond: �Are you
asking whether ...?� One graceful way to deal with an unclear question
is to preface your answer with a diffident: �If your Honor is asking
whether ..., then ....� This invites the judge to clarify the
question, if the premise of your answer is mistaken, without directly
querying the judge.
Often, when asked to clarify a question, a judge will link it to other
issues in the case, potentially allowing counsel to return to a point
on his or her outline. At all times, credibility is crucial to the
court�s confidence in counsel�s argument. If you do not know the
answer to a question with a reasonable degree of confidence, never
bluff. Admit that you do not know. But be appropriately apologetic: �I
am sorry, your Honor, I do not know the answer to that question.� The
excuse, �But, your honor, I didn�t try the case,� will not be well
received.
You can take some sting out of the concession, if you can smoothly
shift ground into an area where you are more confident. For example,
if asked about some testimony that does not seem familiar, admit that
you are not aware whether there is anything in the record on that
point, but then immediately turn to something relevant that you can
invoke to support your position on the pertinent issue.
If a judge asks about a case that does not ring a bell, admit it. This
may be an instance in which you have no choice but to ask the judge
for some help in identifying the reference. Once again, the response
should be candid but respectful. Something like this may work: �I am
sorry, your Honor, but that reference does not bring anything to mind.
Perhaps if I had a bit more information about the case, I could
respond to your Honor�s question.� While it is awkward to forget or
not know about something that is germane to the issues on appeal -- or
that the judge thinks may be germane -- it is far worse to get caught
bluffing. That will totally destroy your credibility with the court.
As Judge Selya has noted: �Credibility is the advocate�s stock [in]
trade.� Indeed, often it is the advocate�s most powerful asset. Better
to suffer the slight embarrassment of admitting that you do not know
an answer -- and to offer to submit a supplemental memorandum
addressing the point the next day -- than to risk getting caught
faking it.
Just as hard questions should be seen as an opportunity to reassure
the court that your position is really sound, requests for concessions
should be approached with caution. Courts have been known to use
concessions against an advocate in deciding a case. Whether it is wise
to concede a point will, of course, depend on the circumstances.
Counsel may have no choice but to concede unfavorable facts, but with
careful preparation you should be able to proffer a convincing
explanation of why they are not lethal to the position being espoused.
When legal concessions are solicited, however, counsel should think
hard about the implications before agreeing. Does the proposed
concession go to the heart of your case, or does it instead seek to
test the logical limits of your position? If the former, you cannot
concede the point. If the latter, it may be tactically advantageous to
reassure the judge that you can prevail without your proposed rule
producing the kind of untoward results implicit in the question.
Anticipating questions of this sort is one constructive consequence of
using formal or informal moot courts in preparing for argument. It is
much better to have thought about such questions before you walk into
the appellate courtroom and to be prepared with your answers than to
try to figure out a response while standing at the lectern.
In any event, you should be prepared to stand your ground where you
must, even if it involves disagreeing with the judge�s assumptions or
premises, and you should never concede a point just because a judge is
pushing for a concession. Even if the inquiring judge is disdainful of
your efforts to avoid a damaging concession, remember that there are
other judges on the panel who may take a different view of the matter.
If the bench is a hot one, the questions may come without pause.
Answer each question directly, then try to weave your affirmative
arguments in as further explanation. Needless to say, you should
endeavor to make your most important points during the course of the
argument even if bombarded with questions. At the same time, the
purpose of the argument is more about getting the judges� questions
answered than about providing a forum for the advocate�s speeches. You
should not worry unduly if there is neither time nor opportunity to
cover valuable points that you planned to make; the reality is that
this is almost inevitable in any complex or substantial case.
Moreover, if the undiscussed points are important, they will almost
surely have been covered in the briefs.
There are endless types of questions judges might ask. The following
are some of the major forms, as well as examples and the occasional
strategy for answering them:
(1) Pure factual questions: �Does the record show how far the witness
was from the place where the collision occurred?� To these questions,
counsel should give concise, straightforward answers and move on, if
the question involves only a minor or peripheral point. But if the
question invites focus on a crucial fact, the significance of that
fact should be stressed in the answer. Make a judgment whether the
question provides the �teaching moment� for driving home a major theme
of your case, even if it comes at a point in your argument earlier
than you had anticipated. If so, expand upon the answer and explain
why it is important to the ultimate resolution of the case. If,
unfortunately, you do not know or cannot recall the correct
information, consider whether the answer may be important enough to
turn to co-counsel at counsel table to see whether one of them can
supply the answer.
(2) Threshold jurisdictional and waiver questions: These are questions
such as: �Do you have a final judgment as to all parties and issues?�
�Is your appeal timely?� �Is there diversity of citizenship?� �Why
isn�t the case moot?� �Does the plaintiff have standing?� �What is our
standard of review?� �Where was the issue raised below?� �Did you make
the necessary pretrial motions or offer a curative instruction?� These
are all questions that counsel must be prepared to answer, even if
one�s opponent has not raised them in the briefs. The oral argument is
the last place that you wish to discover a potential defect in your
case that you have not considered how to address. Questions like this
must be taken seriously, because they may reflect a desire on the part
of at least the questioning judge to try to duck the main substantive
issues on the appeal. Your answer will depend, of course, on whether
you are appellant or appellee and whether you would be happy to have
the court sidestep an issue or whether you need to get it decided in
order to prevail in the case.
(3) Hypothetical questions: These question are tricky, and they are
often the most important questions the advocate will receive. Counsel
should not reflexively respond, as too many lawyers do: �That is not
this case.� Most judges find such a response intensely irritating and
an insult to their intelligence; they are perfectly aware that the
question is not the precise one presented by the case. That is why
they preface it with �if� or something like it. Instead, you should
try to respond with a �yes� or �no� and then explain why the
hypothetical demonstrates the soundness of your position or why,
although the hypothetical might lead to a different result, the
factual differences in the premises of the hypothetical are key to the
difference in outcome. Generally, hypothetical questions are designed
to test the principles underlying one�s argument. Counsel should avoid
a radical argument that overextends the principle in a manner the
judges are likely to find absurd or unacceptable. Where the
hypothetical raises the possibility of a distasteful result, you
should also explain why adopting the principle you are propounding
would not compel the court also to reach an untoward result suggested
by the hypothetical.
(4) Tennis-match questions: These are questions in which one judge is
trying to counter or influence another judge, and counsel is simply
the foil. An appellate oral argument is not merely a conversation
between judges and the advocate, but also one among the judges
themselves. Often, the judges will not have had occasion to discuss
the case among themselves before the argument. Those judges with
strong feelings about the proper outcome will often use their
questions to attempt to persuade fellow judges. But from the
standpoint of arguing counsel, these questions simply call for giving
the best possible response. Where they are friendly, they should be
seized upon as a means of advancing the advocate�s argument. Where
they are implacably hostile, counsel should not become flustered but
should keep in mind that the other judges hearing the case do not
necessarily share the questioning judge�s viewpoint. And remember, you
cannot participate in the conference at which your case will be
discussed and voted on, so this is your best opportunity to be a party
to the judges� interchanges with one another.
(5) Attack questions: �Didn�t we hold in Smith v. Jones that ...?�
Although these questions may present an uphill battle, they offer an
important opportunity for counsel to explain why seemingly adverse
precedent, or another dangerous point lurking in the question, is not
controlling. These questions should not come as a complete surprise to
the well-prepared advocate who has studied the briefs and applicable
case law from the point of view of a skeptical judge. Chief Justice
Roberts has recommended that counsel admit when his or her case is a
complicated or hard one in order to attract sympathy from the bench,
as insisting implausibly that the case is a �no-brainer� merely
invites judges to find holes in your argument. Even though the
question may be propounded in a forceful manner, counsel should
respond in a calm and reasoned fashion and should not be bullied into
making potentially fatal concessions. Counsel should also bear in mind
that a hostile question does not necessarily signify a hostile
questioner. Some of the toughest questions come from judges who are
persuaded by your argument but need certain remaining questions
answered in order to write what they wish to be an effective opinion.
(6) Socratic questions: These are questions that are actually intended
to draw out from counsel the key points that the judge believes
counsel wants to make. They may reflect the judge�s understanding of
your position and a desire to see the arguments laid out in the
sequence and at the time the judge believes is most intelligible. They
may reflect a desire to have you move on quickly through your points,
because the questioner knows where you are going. Try not to
misinterpret these questions as an attack and respond defensively.
Instead, grasp the questions appreciatively and provide prompt and
reassuring answers.
(7) Softballs: These are questions in which the judge is
characterizing your argument or your opponent�s argument or asking
about something in the record or something held in another case. The
purpose of this type of question is to help you underscore a favorable
point. A surprising number of advocates, however, misinterpret
softball questions as hostile, suspecting that the judge is cleverly
laying a trap. Instead of appreciating the question and running with
the answer it invites, too many lawyers respond defensively. This
frustrates the questioning judge and forfeits a golden opportunity to
drive home your point. Instead, you should embrace the question and
seize upon it to delve into the argument. But if the question, though
perhaps proffered with a seeming intent to be helpful, leads to
conclusions you are not prepared to defend, you should not take the
bait. Doing so is likely to produce a barrage of skeptical questions
from the other judges. Best simply to correct the mistake politely and
move on.
(8) Humorous questions: Sometimes judges like to get puckish with
their questions, suggesting some silly comparison or jovial anecdote.
Counsel should enjoy these quips, but should neither get distracted
nor attempt to respond in kind, as such attempts usually fall flat. If
the judges want to be light-hearted, let them, even if it appears that
they are doing so at your expense. Stay on message and preserve a tone
of respectful and serious professional gravitas.
(9) Irrelevant questions: In many oral arguments, a judge will ask a
question that may seem totally beside the point. These questions are
perplexing and may prompt you to scratch your head, figuratively, in
confusion and perhaps mild anxiety. You will wonder whether the judge
sees something that you missed or instead simply misunderstands the
case. You should provide a short, respectful response and return to
the affirmative argument. If the point is in fact relevant in a manner
that counsel has failed to grasp, the judges will probably be quick to
provide enlightenment.
(10) Repetitious (fly-paper) questions: Sometimes a judge will
doggedly pursue a point, even after you have attempted several times
to provide your best response, and you have nothing further to offer.
The judge simply will not let go. If, after several attempts to
explain, the judge will not get off the issue, as a last resort,
counsel can try �I am sorry, your Honor, but I have given the best
answer I have, which I hope the court will find satisfactory.�
(11) Stumpers: If you have no idea what the judge is asking about, or
if you do not know the answer to the question, use one of the
techniques discussed above for handling such questions, trying to
tease out the judge�s thrust without directly questioning the judge.
(12) Questions as to the nature of further proceedings: These are the
�what if� questions that ask the advocate about how the court should
dispose of the case. �If the court disagrees with the result below,
should it reverse outright or remand?� �Should an evidentiary hearing
be held?� �Should the remand be to the same or a different judge?� �Is
the proper remedy judgment for the prevailing party or a new trial?�
�Should any retrial be limited to damages?� �Should an issue be
certified to the state court?� �Should decision be held until the
Supreme Court decides another case?� �Should sanctions be imposed on
counsel?� Counsel should have anticipated any of these questions, like
the threshold questions discussed above, as part of a proper
preparation for the argument. The key here is knowing what remedy you
want the appeals court to provide.
([3]Hide most of the above.)
References
1.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
2. file://localhost/var/www/powerblogs/volokh/posts/1248459505.html
3. file://localhost/var/www/powerblogs/volokh/posts/1248459505.html
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