Today, I’ll close my blogging of excerpts from Mayer Brown’s 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.]
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.