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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O’Hear, Twerski, and the Work of the Professoriate

Aaron TwerskiProfessor Jessica E. Slavin recently posted concerning Professor Michael M. O’Hear’s well-deserved receipt of the Eastern District of Wisconsin Bar Association’s Judge Robert W. Warren Public Service Award. Through the resources available to me as dean, I have been able to secure a copy of Michael’s brief and well-stated acceptance remarks. Professor O’Hear describes his basic belief that law schools can act as “bridge builders” — first, “between, on the one hand, the world of legal practice, judging, and lawmaking, and, on the other hand, the world of rich and diverse learning contained in the modern university” and, second, between “the local and the national” (the latter being, Professor O’Hear notes, “a two-way street”).

These remarks bring to mind — but are not identical to — somewhat more pointed comments delivered by a renowned Marquette lawyer, Aaron D. Twerski (pictured above), who is the Irwin and Jill Cohen Professor at Brooklyn Law School (and former dean at Hofstra). Twerski is an extremely well-regarded law professor (as is O’Hear, although they are at different points in their careers) and received the prestigious Robert C. McKay Law Professor Award from the Tort Trial & Insurance Practice Section of the American Bar Association. Professor Twerski used the occasion of his award to lament the seeming lack of interest of many law professors in saying things of interest to judges and practicing lawyers.

Among his milder comments:

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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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