In Monday’s paper, Adam Liptak of the New York Times wrote about some recent studies about predicting the outcome of a U.S. Supreme Court case based on oral argument.
The lesson? The side asked the most questions tends to lose.
Ongoing studies hope to learn whether the tone of the questions helps to predict with even more accuracy.
Those studies have been limited to the U.S. Supreme Court, which may have an argument dynamic different than other courts. But the conclusion is really though-provoking.
Some of the people quoted in the article give advice such as “keep your head down” and to sit down earlier, just to avoid getting questions. I think that confuses cause and effect. (( This study will not settle the eternal debate about how much oral argument matters. Believing that the written briefs almost always determine the outcome of a case is perfectly consistent with this study, since the briefs are what will inform and motivate the questions prepared for argument. )) The sheer volume of questions does not cause the Court to rule against a side — and, if it did, I suspect the answers would be to blame, not the questions.
Rather, the questions asked by the Court reveal some of the Justices’ concerns and thinking about a case. If one side’s position elicits far more poking and prodding, then it was probably the weaker side on the briefs, too. An advocate sitting down earlier, or avoiding the questions already on the Justices’ minds, won’t help.