What’s With All These Questions?

Making Sense of Judicial Behavior at Oral Argument

Last week attorneys for all-time great NFL quarterback Tom Brady Go Pats!faced a blind-side blitz by a panel of judges on the United States Circuit Court of Appeals for the Second Circuit hearing oral arguments in connection with the ongoing Deflategate legal saga. Sports media outlets quickly seized upon the harsh tone of some of the questions put to Brady’s lawyers to predict the ultimate outcome of the case. As a die-hard fan of the Pats, these reports got me pretty fired up. As an appellate attorney, they put me into blog mode! So, this week’s topic: what can we make of the questions we get at oral argument?

Legal scholars at the University of Chicago conducted a statistical analysis in 2009 of Supreme Court oral arguments to determine whether there were any patterns that emerged to empirically connect questions asked with the court’s ultimate ruling on a case. The authors of the paper reached a conclusion that won’t surprise many lawyers: the sides that were asked more questions were statistically more likely to be on the losing end of the court’s ultimate ruling.

Further analyzing the data, the authors presented two explanations. The first is a “legalistic” explanation – that judges ask questions when they perceive a weakness and want to explore whether or not the concern is valid. More questions equate to more concerns, which in turn equate to a greater likelihood of an adverse ruling. The second proposed explanation is “realistic”, that most often judges have already made up their mind and are asking questions to persuade other judges on the panel by demonstrating weaknesses in a case.

It’s not hard to speculate what frame of mind Judge Chin was in when he asked a “question” to Brady’s attorneys that began by noting that evidence against Brady was “compelling, if not overwhelming.” By all accounts, Judge Chin is a plain-spoken, well-prepared, and highly intelligent jurist. His question indicates he’s read the briefs and the substantial record and he’s got a pretty good idea which way he’s leaning. A canny appellate attorney will realize that a fifteen-minute oral argument is not likely to change Judge Chin’s mind at this point.

However, if we accept that Judge Chin has likely made up his mind, it’s worth considering that his motivations for asking the question in this manner might be more “realistic” than “legalistic.” If that’s the case, it behooves an oral advocate to resist the urge to engage Judge Chin in an extended dialogue that emphasizes weaknesses in the case to other potentially-undecided judges. Instead, it may be better to answer the judge’s question as directly and succinctly as possible, and to immediately try to transition the conversation towards the case’s stronger points. If there is a sympathetic judge on the panel, it is frequently at this point that they may chime in with a question of their own, seeking to steer the dialogue in a direction that bolsters their own position.

We’ll find out in the coming months which way Judge Chin and the rest of the panel rule in the Brady case and it will be interesting to review the oral argument transcript to see how Brady’s lawyers responded to these tough questions. However, they rule, one thing is certain – Tom Brady is the greatest quarterback of all time, and this ridiculous case against him is a bunch of trumped up nonsense. Go Pats!