Legal Writing Tip - Answering Questions at Oral Argument
Last week my class discussed oral arguments. One student raised a question that many others doubtless have before their first oral argument. What do I do if I don't know the answer to a judge's question?
In response, we discussed tips for answering a judge's question. These tips are not only helpful for first-time advocates but also might be a nice refresher for those with more experience.
1. Listen closely to the judge's question. As many of use have found when engaging in public speaking for the first time, it is difficult to listen to and understand someone's question when you are nervous. Because of this, a new advocate should concentrate solely on listening to the judge's question and should not worry about a response until after the question is completed.
2. Pause and think after the judge has finished the question. After listening to the question, it is appropriate to take a few seconds to collect your thoughts and think about your response. The seconds may feel endless when you are "shaking in your boots." But to the judge and any other onlookers, a few seconds pause before you answer is expected and barely noticeable.
3. Answer the judge's question directly. For instance, if the question calls for a "yes" or "no" answer, start with a "yes" or a "no." After a direct response, explain the underlying reasons for the answer.
4. Concede when appropriate. If there is a bad fact, bad law, or other point you rightfully should concede, do so. Then explain why the concession does not harm your client's case. For a discussion of why recognizing the strengths of the opposing case and conceding when necessary enhances your persuasiveness, see Bryan Garner's interview of Judge Zagel. (That said, do not be pressured into conceding points that you do not rightfully concede.)
5. If you do not know the answer to the question, simply state that you do not know the answer. Then offer to provide an answer via supplementary brief within a short time frame. Do not make the mistake of claiming to know something you do not. For such an embarrassing encounter see this clip of Marcia Clark . Also, practice enough that there will only be one question, at most, to which you do not know the answer.
6. After answering the question, transition back to a point you wish to emphasize to the judges. This may sound easy but requires practice before the argument to do well. If you are interested in some tips for preparing for transitions, see Bryan Garner's interview of Justice Roberts in which his Honor discusses practicing the points you wish to make in your argument in different orders.
For further discussion, and additional tips, about answering judges' questions see Linda H. Edwards, Legal Writing: Process, Analysis and Organization 358-61 (4th ed. 2006). I would like to thank Jean Rosenbluth for introducing me to the clips of Judge Zagel and Marcia Clarke.