THE DELICATE ART OF ANSWERING QUESTIONS
(Posted January 5, 2024) I can’t read minds – my wife will confirm this, as I’m terrible at reading hers – but my best guess is that non-appellate lawyers envision the process of preparing for an appellate oral argument as primarily writing, polishing, and eventually memorizing a speech. Not so among the appellate guild. For us, the speech is second in importance to the inevitable interruptions with a judicial question or three. That’s what we focus on. As I’ve noted here, we’re silently begging to be interrupted when we get to the lectern.
Let’s explore how appellate advocates prepare for and answer questions from the bench. If you’re just kibitzing here, and you have only a trial practice, keep reading; you’ll likely learn something that will help you at the circuit or district court level.
When do appellate lawyers start answering questions from the bench? The subtext of the introductory passage to this essay is a good clue. We plan carefully, and we do so long before the oral argument date.
For me, and probably for most of my peers in the guild, oral argument preparation is one quantum of time spent in preparing a speech and three or four quanta of anticipating questions. I try to think of the toughest, nastiest, most dangerous questions that a jurist could imagine. I then take my time in working through the best possible answer to each of those questions. I do this in advance so I won’t have to come up with an answer on the fly while standing at the lectern.
If you’re wondering where to mine this prospective lode of questions, the easy place to start is the Bad Guys’ brief. What are their best arguments? (Be fair to the scoundrels.) Imagine that argument, but turned into a judicial question. Now figure out your best response.
Don’t stop there; envision the holding that you’re asking the court to make; the doctrine that you hope they’ll embrace. Now think that through past your case to the next one, and the one after that. Here’s some wisdom I got long ago from Judge Barbara Keenan of the Fourth Circuit: Trial judges take a given set of laws and figure out what the facts are. Appellate jurists take an established set of facts and figure out what law applies to it. Accordingly, those jurists are vitally interested in how the holding should look, and what kind of precedent it sets.
Once you have this list and your prepared answers, take some time to pare the answers down so they occupy just a few seconds (ideally) or no more than three or four sentences (in a pinch). You might get interrupted halfway through a complex answer, so you must focus on using your time with brutal efficiency.
The final step in this process is a matter of personal preference, but one way or the other you have to make a list of your killer questions and your polished answers, plus any key record or caselaw cites that are likely to be helpful. If you put them on a sheet of paper in a binder, that’s fine; if you prefer to argue with a tablet at the lectern, create a page for this purpose. Either way, make sure you can access and scan it immediately, preferably in one to two seconds, tops.
Embrace the first question
You’re at the lectern, and the panel has courteously given you a reasonable but short amount of time to start your argument. Then some busybody on the court butts in without so much as a by-your-leave and asks a question out of left field, on a topic other than the one you were discussing. What do you do?
Believe it or not, the answer is rejoice. (I think I stole that answer from John W. Davis, one of the Twentieth Century’s great appellate advocates.) The fact that you’re getting a question means that you have the court’s attention. It’s also an opportunity for you. It tells you what’s concerning the jurist who asked the question; what bothers her about your position. If she clams up and allows you to speak without interruption, then the first knowledge you’ll have about that judicial concern is when you read the opinion, by which point it’s too late for you to affect the outcome. Rejoice!
I’ll put this bluntly: Don’t be a moron and attempt to talk over the jurist who’s asking the question, in a desperate attempt to finish the killer point you were making. They hate that. The proper protocol is important enough that I can phrase it as a commandment: When thy jurist’s mouth opens, thou shalt immediately close thine own.
Instead of raising your voice in an effort to be heard, stop speaking immediately and look at the jurist who’s asking the question. Listen carefully to the question, and then answer it directly. If it’s on your tough-questions list, it’s entirely appropriate to turn to that page and refresh your memory of your pre-formulated answer.
Answer the question, even if it’s a tough one
There are friendly questions – sometimes called softballs – and then there are questions designed to probe perceived weaknesses in your case. Whichever kind you receive, the first thing you should utter at the end of the question is a direct answer to the substance of the question. If you need to append an explanation, that’s fine; just remember that the order of operations is direct answer first, explanation second. Under no circumstances may you promise to “get to that point in a few minutes.” You got to that point as soon as the question arrived. Answer it now.
My treasured appellate pal George Somerville, now enduring the travails of a rigorous 9-to-5 retirement, always offered this advice to those entering the appellate arena: If the question is one that calls for a yes-or-no answer, the first word out of your mouth must be either yes or no. After that you may quickly add any needed explanations or qualifiers; but the court deserves a direct answer to a direct question.
Update January 9: We now have a clear illustration of this very principle. A few minutes ago, the following exchange occurred in the hearing of former President Trump’s appeal in the DC Circuit, where he contends that he’s absolutely immune from criminal prosecution for acts taken while he was president. The speakers are Trump’s lawyer John Sauer and Judge Florence Pan:
THE COURT: “Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six.”
MR. SAUER: “He would have to be, and would speedily be impeached and convicted before the criminal prosecution.”
THE COURT: “I asked you a yes or no question.”
MR. SAUER: “If he were impeached and convicted first.”
THE COURT: “So your answer is no.”
MR. SAUER: “My answer is qualified yes. There is a political process that would have to occur.”
Please, I beg you not to follow Mr. Sauer’s example. Answer the question first, and then (and only then) give the qualifier.
If appropriate, take a moment
When you get a tough question, it’s entirely good form to take a very few seconds to think about it. This approach conveys thoughtfulness on your part and respect for the questioner’s concern. It’s far, far better to generate three to five seconds of dead air before giving a considered response, than it is to blurt out the first plausible answer that comes to mind. Just keep it reasonably short. If you get to fifteen seconds, you’ve ruined the mood; the court will assume that you just don’t have an answer, and you’ll turn off the bench.
Everything above this line comprises the easy stuff. Let’s turn next to some difficult situations, and how to deal with them.
To concede or not to concede; that is the question
You will eventually hear a dreaded question that begins, “Counsel, will you concede that ….” What follows may be as innocuous as a butterfly, but it’s more likely to be a live cobra, and you need to treat it with appropriate respect. No matter how forcefully you argue Point X in your well-polished brief, if you concede the opposite in response to a question, the court will take that as a binding admission, and you (and your client) are stuck with the oral answer; you’ll likely see your own words quoted to you in a footnote to the court’s opinion.
Keeping in mind that you can’t avoid requested concessions any more than you can dodge other questions, here are some ideas on how to respond. First, if it’s a matter so obvious that you’ll lose credibility if you don’t concede – “Counsel, will you concede that the sun generally rises in the east and sets in the west?” – then you have to make the concession. Refusing to do so will cost you credibility, and no matter how good you are, you don’t have any of that to spare.
Second, if it’s on your tough-questions list, be happy that you’ve formulated an answer in advance. Turn to that page and respond appropriately.
Third, if you get an unanticipated question that might damage your case if you answer it incorrectly, and you’re not sure about the right answer, you still have a way to respond without losing face (and the appeal). You can cite Rule 1.2 of the Rules of Professional Conduct, telling the court that the decision whether to concede this point requires you to consult with your client. He has a right to be involved in the process of deciding whether to give away a significant legal or factual point, and you can’t consult with him from the lectern. The jurist might not like that response, but it’s consistent with our ethics rules.
Having suggested this approach, I urge you not to abuse it. If it’s obvious that you have to make a damaging concession, then you must do so in good faith and try to explain to the court why you should win anyway.
Fourth Circuit judge Toby Heytens, himself an elite appellate advocate before taking the bench, offers this approach when you get a tricky hypothetical question — really, that’s just a different way to phrase a requested concession — and you aren’t sure if the answer might damage you. At the lectern, his approach in responding to such inquiries was to say, “I think the answer in that situation would be X, though I’d want to evaluate that much more fully before offering a definitive answer.” This simple, elegant approach avoids the possibility of a direct concession.
What you may not do in response to a hypothetical is reply, “Those aren’t the facts of the case, your honor.” She knows that; that’s why she asked a hypothetical question.
Saying “I don’t know” properly
There comes a time in every advocate’s career when a complete stumper arrives. Maybe it’s the meaning of an obscure exhibit that you hadn’t anticipated would be germane; maybe it’s the contours of a prior decision handed down 90 years ago. We need something better than a shrug here.
Many years ago, I was in the Supreme Court of Virginia when a very prominent lawyer, one I respect enormously, was called to the lectern to argue his appeal. To my astonishment, he arrived empty-handed – no notebook, no legal pad, no index cards, no nothin’. He began a beautiful speech, but before long, a member of the court with an impish sense of humor asked him to identify on which page of the record the court would find a certain cited item.
Uh-oh. Perhaps some lawyers are appendix savants who can memorize every page and quote them back to you in a second or two. I’m not one of those, and neither was this day’s hero. His answer was, and I quote, “I don’t know. But I assure you it’s in there.”
You’ll observe that this answer has two components, contained in separate sentences. The first sentence is a correct response; if you really don’t know the answer, you should admit as much. But the second sentence was a big mistake. Phrasing it that way says to the court, “I don’t know; you go figure it out.” We won’t be doing that in our appellate practices, okay?
The proper way to do this is to say something like, “Standing here today, I don’t know. But I can get the correct answer and convey it in a letter to the Clerk that I’ll deliver within 24 hours.” Note that this is an express offer that you’ll do the work yourself, and will submit the answer promptly. To this question, you’re likely to get one of two answers. (1) “No, it’s not that important.” Now you’re off the hook. (2) “Yes, please; I’d like to have this information.” Now you can go back to the cozy confines of your office, find the right answer, and send it to the court as promised. Just keep the letter very short; a simple reference to the question followed by the requested information and then, “Respectfully yours, ….”
When the badger grabs hold
Many, perhaps most, appellate courts have one or more jurists who won’t let go of a point despite your best efforts to disentangle and resume your argument. These questioners will keep you engaged with multiple follow-up queries even after you’ve given your best try at a direct answer. Your precious time is ticking.
This is an exercise in diplomacy. At some point – not too early in the exchange, or it’ll look like you’re surrendering quickly – you need to ask the jurist politely to let you go. Here are a few ways to phrase this; what follows emphatically is not an exhaustive list.
“Your honor, I’ve genuinely given you the best answer that I have on this point. I sense that I haven’t satisfied you, but I don’t know that I can do better than what I’ve said. I request your leave to move to my argument on Assignment 2 while I still have time on the clock.”
“Perhaps your honor and I will ultimately have to disagree on this exact issue. But I’d like to turn to the Johnson case, which I believe addresses your concern from another direction.”
Or in extreme situations:
“I perceive that I’m just not going to get your vote in this aspect of the case. I would, however, like to take a stab at convincing a majority of your brethren on the court. May I return to my argument to do that?”
I repeat, for vitally needed emphasis: This requires diplomacy. You can’t use any of these lines with an air of exasperation, or you’ll lose Judge Badger and some of the other judges, too; you might even get an oral bench-slap from the presiding judge or justice.
The two-front war
You’re zinging along in your reply to Judge Smith when, halfway through – and before you get to the juicy part – Judge Jones pops in with another question. What do you do? You can try to put Jones on hold while you finish making your killer point to Smith; or you can drop Smith like a bad habit and jump immediately onto Jones’s question. Either way, it looks like you’re bound to offend somebody.
As far as I know, there’s no firmly established best practice here. I suggest this: After you follow the easy advice at the top of this essay by remaining silent during Jones’s interruption, you look quickly at Smith and say quickly something like, “I’ll return to your question as soon as I can,” then answer Jones as concisely as possible. Smith will understand your predicament.
This problem worsens if two jurists both want to ask you different questions at the same time, or close enough that it comes out like one long, confusing query. This, too, requires tact.
My advice is to set the table: “Judge Smith would like to know about the contract claim and Judge Jones about the warranty claim.” You then look at the presiding judge on the court or panel and say, “I propose to answer Judge Smith’s question first and then turn to Judge Jones’s topic.” Everyone on the court should understand that you’re tacitly asking the presiding judge to allow you to separate the questions in this way, and most presiding judges will say, “Go ahead.” This legitimizes your approach and carries the fringe benefit of allowing you to answer the questions in the order that you prefer.
Know thy questioner
No, this isn’t going to be an admonition to read every published opinion by each member of your panel. In the Fourth Circuit and the Court of Appeals of Virginia, you don’t know the panelists in advance, so you’d have to undertake an endless task.
Instead, I’m referring to the generic jurist’s task. Going back to John W. Davis, his rule #1 for appellate advocacy is to put yourself, in your mind’s eye, in the position of the court. You’re in oral argument because you want to win the appeal, but the judge is there because she wants to know how to decide the case and how to shape the holding. Face it: Very few appeals come down to a sudden game-winning oral argument. In my opinion, something around 85% of appellate persuasion is on the briefs. Oral argument doesn’t change votes very often.
Instead, the court may want to know how the opinion should read. I’ll allow you to cheat on your tough-questions list by giving you one of them right here, for every appeal you argue: “Counsel, if we rule in your favor on this point, how would we phrase the ruling?” You must have a considered and concise reply to that question. You don’t “leave it up to the wisdom of the Court to shape a proper opinion”; that’s a cop-out and a missed opportunity to get the language that you most want.
More than a century ago, Theodore Roosevelt had sharp words for critics. Here’s the passage, which I dearly love:
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.
If you regard questions from a hot appellate bench with fear, take heart from Roosevelt and from this essay. Know also that while you may begin your presentation with the jitters, your nerves will settle down once you start arguing. Because you’ve prepared for your argument, you need not be a cold and timid soul. Get into the arena and let ‘em have it.