Just answer the question!

Despite my best intentions, I haven't been able to blog for a few weeks. Not only was I trying to keep up with my work but I suffered an awful attack of bronchitis that left me with a few bruised ribs from coughing. I just didn't have any wisdom to share!

I am almost fully recovered and my powers of observation are sharpening. Just the other day, I attended an oral argument. One justice asked a question and the attorney quickly launched into what he wanted to say. Perhaps he intended to answer the question at some point, but the justice was noticeably irritated when a direct answer was not the first response out of the attorney's mouth. A few minutes passed and another justice reminded the attorney that he still hadn't answered the question. The second justice encouraged him to answer the question. Realizing the importance of this omission, the attorney then said, "Can you repeat your question?"

There is a simple point to all of this: make answering a justice's question your first priority. When we approach oral argument, we all try to plan our presentations. Sometimes we get so wedded to the presentation, we don't want anyone to stop the flow of words. Keep in mind that your presentation consists of information that you want to give.

Asking a question is a direct path to getting information that the justices want to hear. After all, they have briefed the case and may have some idea of how they feel it should be resolved. A question might be an attempt to fill in a missing piece to the puzzle.

Ignoring a question signals that the justice's question is less important than your magnificent speech. Would you ignore a doctor who asked for more information about your symptoms or the waitress who only wanted to clarify if your steak was to be delivered to the table rare and well done? Think of yourself as part of a problem-solving team.

To make it easier: you might try to practice your oral argument in segments. Mix it up and argue out of order. Write a few questions on slips of paper and respond randomly. More importantly, recognize that answering a question is a great opportunity to deliver the information that might make the difference in how the case is decided.

Comments

[Greg May]

The conduct you describe is appellate suicide!

One apppellate practitioner once advised to think of oral argument as a conversation rather than as argument. I think that approach leads one to engage questions fully.

By the way, glad you're feeling better.