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Judges’ questions portend trouble for your appeal

Studies show what your gut already knows – when the appeals court judges are hammering you with questions, it’s a good bet they’re leaning toward ruling for your opponent.

The New York Times reports on the validation of the question-count theory: the side that gets the most questions from the bench is most likely to lose.   The numbers for the U.S. Supreme Court are persuasive:

If the two sides receive the same number of questions, the likelihood of reversal is 64 percent, which is in line with the usual probabilities; the court reverses more often than it affirms.

But if the side seeking reversal gets 50 more questions than its adversary, the likelihood of a victory drops to 39 percent. And if that side manages to get the maximum number of extra questions in the study, which was 94, the likelihood of winning drops to 18 percent.

Which suggests a new strategy for oral argument: disappear.  Wear bland clothing, expressionless face.  Try to blend into the background.  Whenever possible, suggest that your adversary probably is the best one to ask …

By Peter Vieth

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