FIELDING DIFFICULT QUESTIONS FROM THE BENCH

Appellate Advocacy Advice from Justice Paul Anderson

Concrete advice on how to field tough questions from the appellate bench is provided by Justice Paul Anderson of the Minnesota Supreme Court in Chapter 16 of The Appellate Prosecutor book. Justice Anderson states:

“Appellate judges enjoy asking questions. It is our lifeblood. It is how we seek to understand a case, eliminate ambiguity, and test a proposed rule of law. We do not purposely think up difficult questions to put appellate advocates on the spot. Nevertheless, many of our questions are difficult to answer because we are testing or probing in an effort to solve complex legal problems.
“Most good appellate advocates welcome difficult questions because they know that this is how they can engage in a dialogue with the court. They know that it is only through such a dialogue that they and the court can act together to explore the nuances of complex legal issues. But not all appellate advocates appreciate difficult questions; many view them as a necessary burden. Why is there this difference? Generally speaking, it can be characterized as a difference in attitude, anticipation, expectation and preparation. By using the foregoing attributes properly, an advocate is able to significantly change the dynamics of oral argument so that even the most difficult questions are welcome or at least palatable. Fortunately, some principles and practices enable an advocate to successfully field the difficult questions. What follows are a few of these principles.”

Justice Anderson’s principles, insights and points include:

• Entering the Dialogue: The Gift; Listen and Respond to the Question Asked and The Courteous Conversationalist


• Preparation and Anticipation: How the Court Prepares and How the Court Views Your Case - The Three Categories


• Answering Particular Types of Questions: The Premature Question; The Softball Question; The Stupid Question; The Nasty Hypothetical Questionn and Opposing Counsel's Questions


• A Final Word About Preparation
  
  Read the entire chapter at this Advocacy website .