You prepared diligently for your oral argument. Now, you’re in the middle of your argument when—BAM!—you get hit with a question you did not expect. What do you do?
Don’t get rattled. After all, you did prepare diligently, and so you know the pertinent facts and law, and you are aware of the legal theories that apply. Most importantly, you know your theme.
Make Sure You Understand the Question
A risk is that, because the question is unexpected, you will incorrectly assume you understand what the judge is asking before processing the nature of the inquiry.
Think before Responding
Think about the precise question, and what may be motivating the judge to ask that question. Does it disclose a judge’s inclination to agree with a contention opposing counsel has raised? Is the judge skeptical about a contention you have made? Is the judge mistaken about something in the record, or the holding of a case you cited?
Answer the Question as Best You Can
Don’t duck the question, and don’t equivocate. If you know the answer, respond by weaving your theme into what you say. Be careful about making any concessions, because you may weaken your case. But do make concessions when necessary, because doing so enhances your credibility. If you just don’t know the answer (for example, if a judge inquires about a reported decision about which you know nothing), be straightforward, saying the words you would prefer never to say: “I don’t know.” Then move on.
What about Hypothetical Questions?
Judges love to ask hypothetical questions, especially in appellate arguments, because they must consider how their ruling may affect analogous cases into the future. After all, they set precedent. No matter how many hypothetical questions you conjure up in preparing for oral argument, you cannot come up with all possibilities. When you get an unexpected hypothetical, follow steps 1–4 above. If you can, distinguish that hypothetical from your case, and explain how, even if the result in the hypothetical is contrary to the position you espouse, it does not apply in your case.
How do you avoid the predicament of the unexpected question? You can’t, altogether, but you can minimize that risk by asking colleagues to put you through a dry run before you appear in court. You should find colleagues willing to devote the time and effort to review the record and briefs to the extent necessary so they can be the “hot bench” you need.