How to Deal With Questions From the Bench

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How to Deal With Questions From the Bench
Jim Moseley All Articles
Texas Lawyer
September 06, 2011

One of the most stressful moments of a hearing or argument comes when the judge looks up from her papers, clears her throat and says, "Counsel, I have a question." This simple sentence can fluster new and experienced counsel alike, but the strategy for capable answers in the courtroom is simple. To deal effectively with questions from the bench, a lawyer must appreciate the queries for what they are, anticipate what questions may be asked and prepare truthful responses that advance the client's position.

• Question = opportunity. Questions from the bench identify specific issues or problems that have drawn the court's interest. Properly viewed, each question presents an opportunity to make the best argument possible about that issue with the assurance of having the court's undivided attention. To take advantage of the opportunity, the lawyer must understand the question and answer it immediately, directly and with a minimal amount of fumbling.

To answer a question effectively, the lawyer first has to understand it. That means when the court starts talking, the lawyer should stop and listen. Talking over the judge is not just bad form, it's ineffective. She isn't listening to you anyway, and if you're still speaking you can't hear her question. After the court has finished the question, it's fine to ask for a repeat or a clarification (if it's not done every time).

• Respond directly. After counsel has heard the question, he may want to take a few seconds and formulate a response before speaking. But when he talks, the first words out of his mouth should be a direct response to the question. This doesn't mean the lawyer is restricted to answering "yes/no/I don't know." If a question requires something other than an absolute, categorical reply, counsel should say so ("Your honor, it depends" or "I believe it does") and then move to the explanation as quickly as possible. (Example: "I don't think so, and here's why.") However, until the judge has a direct response, her attention is diverted from any explanation the attorney might want to provide. Answer first, then explain.

There's one exception to the direct response rule: "Your honor, to answer your question I have to go outside the record." If counsel doesn't alert the court to that situation, he risks a counterattack from opposing counsel and a possible loss of credibility.

• Answer now. Probably the worst faux pas counsel can make (other than lying) is to respond to a judge's question by saying, "I'll get to that in a minute." Making the court wait for an answer is disrespectful and a waste of the opportunity afforded by the question. The judge's attention is focused on the issue associated with her question. Until she receives an answer, her attention isn't on whatever else the lawyer might say. If the lawyer has planned to address that issue two or three points later, he should recognize the court is ahead of him and this is his opportunity to catch up. If necessary -- and it usually isn't -- counsel can loop back and pick up any intervening arguments.

• Anticipating questions. To take full advantage of questions from the bench, the lawyer should anticipate possible questions and prepare -- in advance -- the strongest answers. This task is easier if the lawyer understands that almost all questions from the bench fall into one of four categories:

1. Record questions. Even diligent judges expect lawyers to be more familiar with the record than they are. The court's caseload is larger than the lawyer's, and while a lawyer rarely has more than one court appearance on any given day, usually the judge is conducting hearings on a number of matters. Thus, as a matter of efficiency, the court expects the attorneys to answer -- quickly and accurately -- questions about what the record says and where it says it. Failure to meet this expectation undercuts the attorney's credibility.

Most record questions should be answered in the brief or motion or in a handout or bench memo. But even if the court has been provided record cites in writing, counsel must be prepared at the hearing to reference critical portions of the record and direct the court to where these portions are. These critical points differ with each argument, but as a rule they will include the most important motions, evidence, objections and rulings.

2. Authority questions. Most hearings and arguments include at least one dispute centering on a judicial opinion or enacted law (meaning constitutional provisions, statutes, regulations and rules). One side argues that Case A stands for X and is dispositive, while the other party says Case A doesn't say that or that Case B or a particular statute is controlling. Authority questions delve into the meaning and applicability of the cases and laws cited in connection with the arguments.

To prepare for authority questions, the lawyer must first identify the issues in dispute and the authorities relied on by both sides. In an appeal this task will have been accomplished by the briefs. At the trial court, however, the motion and any responses and briefs may not identify adequately the authorities in dispute and additional research is needed to anticipate the opponent's authorities. After the principal authorities at issue have been identified, the lawyer can prepare to answer questions about them.

For case authorities, questions that should be anticipated include:

What are the underlying substantive and procedural facts of the cited case?
Do those facts differ meaningfully from the case being argued?
Is the case controlling precedent or merely persuasive?
Is the language of the case dictum?
Has it been overruled, limited or criticized by other opinions?
Can the case be read narrowly or broadly to exclude or include the situation before the court?

As to enacted law, anticipated questions should include:

What situation was the law designed to address?
Is that the situation before the court?
Can/should the law be read broadly/narrowly?
Is there any relevant legislative or regulatory history?
Do other laws govern the overall subject and, if so, how do they interact with each other?
Is there an earlier/subsequent version of the law and, if so, when and why was it changed?
Does the legal framework raise any constitutional issues?

3. Scope-of-argument questions. These questions test the validity of the legal arguments advanced by the parties. Scope-of-argument questions often take the form of hypotheticals, asking how the outcome of the case being argued or a case cited to the court would be affected by posited changes in the relevant facts.

To prepare for scope-of-argument questions counsel should draft -- based on the cases cited -- statements of what each party contends to be the legal principle controlling each contested issue. As to each case (or at least the most important ones), the lawyer should isolate the facts pivotal to the outcome; substitute different facts in their place; ask whether applying the stated legal principle to the new facts would dictate a different outcome; and determine whether that outcome can be defended as proper. Depending on the results, the lawyer can then revise or clarify the legal principle for which the cases are cited.

This process is akin to playing with building blocks. By repeatedly tearing down and reassembling the underlying authorities, the lawyer can identify strengths and weaknesses in the arguments, refine his reasoning and assist the court in clarifying the contours of the legal principle asserted.

Note that during argument, the lawyer should never fight the hypothetical. Do not respond to a "what if" question by stating, "Those aren't our facts in our case." The judge knows that; that's why she started the question with "what if." If counsel wishes, he can phrase his answer in contingent language ("If that were the case" or "In that situation"). However, be aware that the judge may view a lawyer's contingent language as offensive and as an attempt to duck the hypothetical.

4. Policy questions. Policy questions explore how the legal principle being argued would affect others who are not before the court and whose interests differ from those of the parties. For example, how would a particular rule of liability contested between Party A and Party B impact the employers, employees, suppliers, customers or insurers of similarly situated parties? Or how would a procedural holding impact other rules of procedure and the court system as a whole? Anticipating these "big issue" questions is most critical at the appellate level, but they are important in every court.

• Using notes and outlines. For some issues, some arguments and some lawyers, answers to the court's likely questions can be committed to memory. However, counsel should take comfort in knowing that style points aren't given for talking without paper. Relying on notes, outlines or a copy of one or two pages from the record is acceptable, provided the materials are organized in a manner that allows counsel a quick reply to the judge's questions.

A lawyer who responds effectively and appropriately to the judge's queries from the bench projects an image of prepared professionalism and provides stronger representation for his client -- no question about it.

Jim Moseley is a justice on the 5th Court of Appeals in Dallas. His email address is Feedback@JusticeJimMoseley.com.


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