Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose.  In the words of the attorney who did some of the first work on this question while she was a still a law student,

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.  

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists.  From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.'” 

The result seems obvious.  It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory.  In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument.  That would be a real secret to successful advocacy.

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Does Justice Souter Make a Difference?

This is my final posting as the Faculty Blogger for the Month of May.  Thanks to everyone who has commented on my posts and a special thanks to my colleague Michael O’Hear.

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence.  The consensus seems to be that the direction of the Court will not change significantly.  Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference.

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The One-Month Anniversary of Arizona v. Gant: A Sign of Things to Come

Although we have not yet seen the flurry of end-of-term opinions sure to emerge from the Supreme Court in June, few are likely to gain as much immediate attention as Arizona v. Gant, in which the Court imposed new Fourth Amendment limitations on the ability of police officers to search vehicles.  The CrimProf listserve has been buzzing about Gant since the opinion came out, and now we are beginning to see the first signs of fallout in the lower courts.  Rising 3L Brent Simerson sent me the following insightful comments about the significance of Gant, for which I am grateful:

As one might expect, the United States Supreme Court’s recent ruling in Arizona v. Gant has triggered changes in the way police officers and attorneys must analyze warrantless searches incident to a lawful arrest in the vehicle context.  Professor Jon Deitrich provided several interesting observations about the opinion itself in a post last week.  The Court held that police officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”  This holding narrowed the Court’s prior holdings in Chimel v. California and New York v. Belton, which were largely interpreted by lower courts as permitting vehicular searches incident to a lawful arrest regardless of how improbable it was that the arrestee could access the automobile.  Gant will undoubtedly constrict law enforcement’s hitherto broad authority to search vehicles incident to lawful arrest, see United States v. Majette, No. 08-4427, 2009 U.S. App. LEXIS 9267 (4th Cir. Apr. 30, 2009) (conviction vacated pursuant to Gant), but it is too soon to describe how courts will answer tough questions presented by Gant‘s requirements: What constitutes a “secured” arrestee?  May police officers circumscribe the spirit of Gant by directing the unsecured arrestee to remain within reaching distance of the passenger compartments?  These fact-sensitive questions will take time to resolve.

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