Chief Justice Roberts' secret to successful appellate advocacy.

Tony Mauro has an interesting column up at Law.com in which he looks at statistics from recent terms of the Supreme Court and analyzes the number of questions from each justice against the their ultimate decision in each case. His purpose was to test an observation made by Chief Justice John Robert's that as a practitioner, "The secret to successful advocacy is simply to get the Court to ask your opponent more questions." In other words, the lawyer who is asked the most questions in oral argument is the lawyer most likely to lose.

Mauro's analysis seems to bear out the Chief's theory and when I thought about it, I realized that my own experience confirmed the theory as well and after pondering it for a bit, I think I know why that is.

I won't presume to speak for other judges or courts but, in my case, I take the briefs to the bench annotated with my notes reflecting points I want to clarify from the briefs about the issue or the position of the parties in each case. Upon reflection, I generally have fewer questions for the attorney who made their legal position crystal clear in their brief and where they cite precedent that supports their position. By contrast, I tend to ask more questions to clarify the argument where the existing precedent did not seem to support their position (e.g. "Why doesn't Smith v. Jones control the outcome of this case?") or to clarify the legal position of a lawyer whose brief confused me (e.g. "Let me make sure I understand counsel, is it really your position that the First Amendment protects human sacrifice?"). Put another way, I suppose the lawyers who tend to get the questions are those who are either the lawyers who are pushing the legal envelope on behalf of their clients (a good thing) or those who were less than clear in presenting their client's case (a bad thing). That doesn't mean that these lawyers never win, on the contrary, they sometimes do. It's just that, overall, they are on the wrong side of the law of averages.

Mauro ends his piece with a conclusion from Professor Lawrence Wrightsman, a psychology professor at the University of Kansas, that Chief Justice Roberts (and presumably his colleagues on the court) comes to oral argument with a "predisposition" asserting "I don't want to say he has already decided the case, but he is setting a higher standard for one side than for the other."

The Chief Justice hardly needs me to defend him but that quote illustrates why psychology professors probably shouldn't write books about courts and judging. As I have said before, whether you want to call it a predisposition (I wouldn't call it that) or a preliminary conclusion, every appellate judge I know of is usually leaning one way or the other after reading the briefs, record and the applicable law. But forming a tentative conclusion is not the same as pre-deciding the case, setting a higher standard for one side or that our ultimate vote is "carved in stone." I and other judges keep an open mind and we refine our conclusions and often change our mind completely about the case after we get our questions answered at oral argument and nothing is ever final until we bat it all around with our colleagues in the decision conference and positions can and do change right up to when we ultimately sign the opinion.