Post by Jim on May 25, 2009 18:17:23 GMT -5
When in front of a judge, "keep quiet, shut up, and don't talk". The more you say, the more trouble you get yourself into. Especially when 5th Amendment right to remain silent issues need to be addressed.
May 26, 2009
When the Justices Ask Questions, Be Prepared to Lose the Case
By ADAM LIPTAK
WASHINGTON
A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side will win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., 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."
The two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In form, they are efforts by the justices to elicit information, clarifications and concessions from the lawyers. In reality, though, these arguments are for the most part attempts by the justices to persuade their colleagues.
"Quite often the judges are debating among themselves and just using the lawyers as a backboard," Chief Justice Roberts explained in remarks at Columbia Law School last year.
The two studies were suggestive, but they were the work of amateur empiricists. Ms. Shullman looked at only 10 cases, and Chief Justice Roberts about three times as many.
A new study by four political scientists to be published the Washington University Journal of Law and Policy follows up on the earlier ones and applies some real muscle to the question. It looks at some 2,000 arguments and more than 200,000 questions from the justices.
You might quibble with the methodology. For starters, not every question is created equal. Consider, for instance, this one from Justice Stephen G. Breyer, who was battling laryngitis in 2006. "Can you hear me all right?" he asked.
But the studies "authors" say this sort of thing is "random noise" that washes out over thousands of cases.
It turns out that Ms. Shullman was right: The relative number of questions asked is a powerful predictor of who will win. 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.
"The more attention justices pay to a side," said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study's authors, "the more likely that side is to lose."
Professor Johnson and two colleagues are finishing up an even more comprehensive study, one that takes account of more than 2,500 arguments and "more than 340,000 unique justice utterances."
It also considers the tenor of the questions, using a list of words in something called "The Dictionary of Affect in Language." The dictionary codes words for how pleasant and vivid they are. Some pleasant words are "approve," "confidence" and "guidance." Some unpleasant ones: "abusing," "failed" and "hostile."
These days, the study found, the justices collectively utter about 4,000 words in each hour-long argument, which is roughly double the loquaciousness rate in the mid-1980s. The number of pleasant words has climbed, too, but not as fast as the number of unpleasant words.
Only the unpleasant words, the study found, have predictive power. The lawyer who hears more pleasant words is not more likely to win. But the lawyer who hears more unpleasant words is more likely to lose.
"Justices focus more of their attention on words that are more likely to tear down an argument with which they disagree," the study concluded, "than to help the side they hope will win."
There is more work to be done, Professor Johnson said. The predictive power of questioning can be examined for each justice, for instance. "We cannot wait to run those analyses," he said.
But you have to wonder whether the obsessive study of everything to do with the Supreme Court has practical value to, say, the lawyers who argue before the court.
Professor Johnson said those lawyers would be wise to avoid questions.
"The old adage that you should keep your head down may be the way to go," he said. "The advocate who tried to throw in the kitchen sink and try every argument in the world may be heading for trouble."
Ms. Shullman, the young lawyer who started this enterprise, said she applied her study's conclusions successfully not long ago in a bankruptcy hearing.
"The judge was really hammering the other side," she said. "You know what? I'm going to shut up. I'm going to let this play out. And sure enough, he ruled for us."
www.nytimes.com/2009/05/26/us/26bar.html?hp
May 26, 2009
When the Justices Ask Questions, Be Prepared to Lose the Case
By ADAM LIPTAK
WASHINGTON
A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side will win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., 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."
The two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In form, they are efforts by the justices to elicit information, clarifications and concessions from the lawyers. In reality, though, these arguments are for the most part attempts by the justices to persuade their colleagues.
"Quite often the judges are debating among themselves and just using the lawyers as a backboard," Chief Justice Roberts explained in remarks at Columbia Law School last year.
The two studies were suggestive, but they were the work of amateur empiricists. Ms. Shullman looked at only 10 cases, and Chief Justice Roberts about three times as many.
A new study by four political scientists to be published the Washington University Journal of Law and Policy follows up on the earlier ones and applies some real muscle to the question. It looks at some 2,000 arguments and more than 200,000 questions from the justices.
You might quibble with the methodology. For starters, not every question is created equal. Consider, for instance, this one from Justice Stephen G. Breyer, who was battling laryngitis in 2006. "Can you hear me all right?" he asked.
But the studies "authors" say this sort of thing is "random noise" that washes out over thousands of cases.
It turns out that Ms. Shullman was right: The relative number of questions asked is a powerful predictor of who will win. 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.
"The more attention justices pay to a side," said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study's authors, "the more likely that side is to lose."
Professor Johnson and two colleagues are finishing up an even more comprehensive study, one that takes account of more than 2,500 arguments and "more than 340,000 unique justice utterances."
It also considers the tenor of the questions, using a list of words in something called "The Dictionary of Affect in Language." The dictionary codes words for how pleasant and vivid they are. Some pleasant words are "approve," "confidence" and "guidance." Some unpleasant ones: "abusing," "failed" and "hostile."
These days, the study found, the justices collectively utter about 4,000 words in each hour-long argument, which is roughly double the loquaciousness rate in the mid-1980s. The number of pleasant words has climbed, too, but not as fast as the number of unpleasant words.
Only the unpleasant words, the study found, have predictive power. The lawyer who hears more pleasant words is not more likely to win. But the lawyer who hears more unpleasant words is more likely to lose.
"Justices focus more of their attention on words that are more likely to tear down an argument with which they disagree," the study concluded, "than to help the side they hope will win."
There is more work to be done, Professor Johnson said. The predictive power of questioning can be examined for each justice, for instance. "We cannot wait to run those analyses," he said.
But you have to wonder whether the obsessive study of everything to do with the Supreme Court has practical value to, say, the lawyers who argue before the court.
Professor Johnson said those lawyers would be wise to avoid questions.
"The old adage that you should keep your head down may be the way to go," he said. "The advocate who tried to throw in the kitchen sink and try every argument in the world may be heading for trouble."
Ms. Shullman, the young lawyer who started this enterprise, said she applied her study's conclusions successfully not long ago in a bankruptcy hearing.
"The judge was really hammering the other side," she said. "You know what? I'm going to shut up. I'm going to let this play out. And sure enough, he ruled for us."
www.nytimes.com/2009/05/26/us/26bar.html?hp
