Wednesday, November 07, 2012

The Pitfalls of Oral Argument

by Sherry F. Colb

The second of my two-part series of columns about the Fourth Amendment dog-sniff cases in the Supreme Court appears today on Justia's Verdict.  Rather than further discuss the dog sniff cases here however, I want to use this post to voice a critique of oral argument in the U.S. Supreme Court.  I think that it sometimes turns what could be a useful exchange between the advocates and the Justices into an opportunity for Justices to test and for attorneys to showcase (or fail to showcase) skill at thinking on their feet.  On the assumption that we ought to be resolving cases on the merits, this theater does a disservice to the needs of the litigants and "the people" more generally.

What brought this issue to my mind was reading the transcript of oral arguments in Florida v. Jardines (the case asking whether a dog sniff for narcotics at the front door of a suspect's home represents a Fourth Amendment "search") as well as Florida v. Harris (asking whether a court must closely scrutinze a dog's track record in determining whether his alert to drugs provides the police with probable cause) .  I will not quote from the oral argument, but some of the oralists were more highly skilled than others at responding to Justices' hypothetical questions and to possibly-unanticipated directions in which the Justices took the respective cases.  This skill disparity may or may not affect the outcome in the case, but even if it does not, it may still inappropriately affect the Justices' thinking about the issues in ways that we cannot always determine.

"Why is that inappropriate?," readers may be wondering.  After all, when Justices pose difficult questions, and an advocate has no response (or has a response that seems to concede more than is warranted), the advocate has essentially failed his client and should, perhaps, have never argued the case in the first place.  It is up to oral advocates to prepare extremely well so that such unanticipated exchanges do not occur (and, if they do occur, do not fluster the advocates).

Though preparation is crucial, however, I would say that Justices should be looking for fully-thought-out answers to their questions, even and perhaps especially when  advocates might not have even thought to address and consider some matter in their respective briefs.

Some people believe that oral argument is altogether a waste of time.  Justice Thomas has expressed this view.  I would not go so far, however, because questions-and-answers help the Court zero in on issues that might not have been fully (or at all) developed in the written briefs as submitted.  The briefs, to some degree, answer imagined questions without full information about what will most concern the Justices.  In my view, however, an oral argument would work better if Justices told the advocates in advance what they expected to ask during oral argument and there were accordingly fewer opportunities for surprises and "gotcha" moments, in which other lawyers are in a position to say "if only I had argued the case, it would have come out differently."

As it stands, Supreme Court advocates frequently call on their friends and colleagues to "moot" them before oral argument.  Friends and colleagues play the roles of the Justices and ask questions that either they or the advocate himself or herself expects the real Justices to ask.  This gives the advocate practice at articulating responses to questions that she expects as well as thinking on her feet about how to respond to questions that she does not expect.

But why have so much guessing?  Justices could instead each write down a list of questions about the case that occur to them as they review the briefs and consider how best to rule.  Advocates could then think specifically about the questions that the Justices have actually posed and return responses to those questions to the entire Court.  There could then be an additional round (or two) of exchanged questions, as Justices are able to digest and react to other Justices' questions and the advocates' responses.  Oral argument, if it does occur, would then allow the public to watch the question-and-answer exchange that Justices had already developed, in cooperation with the parties, before the argument itself.

A practice of this sort would bring two separate benefits to the resolution of cases in the Supreme Court (and in other appellate courts as well).  First, as described above, it would avoid the problem of advocates who were unable to anticipate a question or a hypothetical scenario and therefore gave incorrect (or ill-considered) responses to questions posed.  And second, to return to the theme of introverts and extroverts I discussed in an earlier post, it would give an opportunity to the quieter Justices to ask their questions, notwithstanding their unwillingness to interrupt the flow of argument as comfortably as Justices Scalia and some of the other Justices currently do.

It seems to me that there is no place for one or two Justices dominating the oral argument, as happens on occasion, particularly when -- as is often the case -- the dominating Justice may be taking a position that deviates substantially from the views of most of the other Justices.  Such domination puts an inappropriate premium not only on extroversion but on the willingness and ability to bully others -- whether advocates or colleagues -- during an argument, and it leaves the quieter Justices' (potentially better) questions both unasked and unanswered.

In thinking about oral arguments, it occurs to me that we have something like this institution in deciding whom to hire as faculty at law schools.  People give a short presentation (usually about a written paper that has been previously distributed), and faculty then raise their hands and ask questions of the speaker.  We often judge the speaker based on the quality of his or her answers to difficult questions (just as judges of moot court competitions do).  Is this practice sensible?

To some degree, it makes sense, because professors do need to be able to lecture to students who may ask difficult or unanticipated questions.  It also makes some sense because, for better or for worse, other law schools will invite professors to give such presentations and judge them (and the quality of their home institutions) on the basis of their performance.  To say this differently, doing "talks" is part of the job.

What distinguishes job  talks (and moot courts) from oral arguments, however, is that the point of the former is for the audience to assess the skill and talent of the speaker, regardless of whether the position she takes is actually right or wrong, in some objective sense.  It may even be more impressive when a faculty candidate ably defends a position, under fire, that no one in the audience finds remotely compelling.

At oral arguments, by contrast, the objective of the judges is to arrive at the correct (or at least at the best) outcome in the case, even if a gifted oralist has argued against that outcome and the advocate for that outcome becomes flustered and unable to respond intelligently to a series of difficult hypothetical questions.  At oral arguments, then, we want to do whatever we can to reduce the importance of an advocate's skill under pressure and to emphasize the merits instead.

Having said this, I enjoy oral arguments, in part because the contest between skilled advocates is fun to watch (or listen to or read about), much as a gymnastics competition is fun to watch.  Despite its entertainment value, however, I think oral argument would bring us closer to just outcomes than it currently does if it changed in the ways that I propose above.


Howard Wasserman said...


Interestingly, your position here seems directly contrary to the positin Mike took last month in a post titled "Against Debate," in which he criticized the artificiality of evaluating someone's presentation without regard to evaluating the content.

More importantly: Your argument that justices should present the questions/issues to the advocates in advance would fit well with arguments that Dan Meador made many years ago in favor of an increased reliance on orality (and decreased reliance on briefs) in the appellate process. If advocates can prepare specific issues, that becomes more workable.

Anonymous said...


I actually really like this idea. If the real purpose of oral argument is not entertainment (for the Justices and the gallery) but information gathering, providing the questions in advance is an idea worthy of consideration.

Two thoughts: Do you think that the Supreme Court bar would agree or protest? After all, aside from being gifted oralists, part of their skill is in predicting what questions would come up. If the questions are released in advance, would a much larger pool of people be able to argue effectively at the Court? And is that a good thing or a bad thing/

Second, would the questions be released to everyone involved (e.g., the other chambers)? Because, if so, it seems like the dynamic among the Justices on the bench would change a lot. They wouldn't have to talk to each other as much.

Thanks for a really thought-provoking post.

Unknown said...

As a litigation attorney, I'd love advance warning of what's on the judge's (or Justice's) mind - but I see a couple of problems with your concept. It's the equivalent of asking for pocket briefs, which the Court can already do, only without the briefing, so the Justices will have less opportunity to see the flaws in the advocate's well-crafted oratory. In his or her prepared oral remarks, an advocate tries to gloss over and lead the discussion away from the weakest points of his case. Your proposal would tend to deprive the Justices of the time & opportunity they need to shove him back to the point he's trying to avoid answering. The ability to push the advocate to confront the hole in his case is a lot of what the Court uses oral argument for, and I have the uneasy suspicion that the only way to do it, is by a sneak attack. Or to put it more nicely, by having an active discussion with counsel - which is harder if he's supposed to be answering (dodging) a long list of pre-prepared questions.

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