Study shows that on Oral Arguments, When the Justices Ask You more Questions, Be Prepared to Lose the Case



“A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side will win a case in the U .S. Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice Roberts and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was still a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Chief Justice Roberts had argued 39 cases in the Supreme Court, and he was considered one of the leading appellate advocates of his generation. He sounded both fascinated and a little deflated by the results of his experiment. “The secret to successful advocacy,” he said playfully, “is simply to get the court to ask your opponent more questions.”

-Excerpted from the New York Times  May 25, 2009

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