AN APPEAL TO REASON

In the past I have lectured on the importance of answering the questions asked of you by the justices during oral argument. After watching an afternoon of oral argument last week, I thought I might expand on this advice:

Most attorneys come into court with an outline and a presentation in mind. They may be so wedded to the presentation that questions from the bench may seem like a distraction and the attorney rushes to return to his or her script. Stop! Think of a question as a gift because it allows you a glimpse into the justice's thinking so you can answer any concerns the court might have. You have limited time; why not spend it on an issue that you know is pivotal to the case?

Let the justice ask the question. The question might come out as a single sentence or it may be followed by an example or an additional question. Don't jump in without allowing the justice to finish the question. I observed several attorneys who were so anxious to answer a question that they stepped all over the justice's question. Not only is it discourteous but the attorney takes the risk of answering the wrong question.

If you don't understand the question, say so. I have never observed a justice losing patience with an attorney who asked for clarification.

Answer the question. I know it sounds simple, but attorneys often try to give a quick answer, so as to move away from an area that they perceive as weak for their position, and then return to a positive presentation. Some justices speculate as to whether the attorney intentionally fails to answer the question. Listen and answer the question as best you can. Be prepared for a question that probes the weaknesses in your position.

Because answering a question requires you to listen, think and speak without a prepared script, I find that attorneys often become more relaxed and natural when a question is interposed.

Don't try to avoid making any concessions. You will lose your credibility if you try to deny what is obvious to everyone in the courtroom.

Eliminate statements such as "to be perfectly honest," "honestly," or "to tell the truth." It raises an inference that you might have been lying before that statement. If your words are spoken truthfully, then the justices will be able to pick that up.

I would eliminate the frequent use of "I believe," "I think," or "in my opinion." Of course, most of this is your opinion, and when it is not, such as a case holding, you weaken your position by stating this is what you think the case holds.

Listen to the questions asked of your opposition and assume you might get the same or similar questions. Prepare yourself.

If you are asked to prepare a letter brief on a question, either before or after oral argument, consider it another opportunity to shed some light on an issue that is troubling the court. This is your chance to enlighten the court. Don't overlook the importance of these requests.

Avoid asking if the justices have any questions. I have never met a justice who was too shy to ask a question and an invitation has never prompted a question that a justice was too afraid to ask. The invitation is probably made in an attempt to seem polite but it is really unnecessary.