Thursday, May 12, 2005
In a new study entitled "The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow their Decisions During Oral Argument," Sarah Shullman came up with a surprisingly simple and accurate way of predicting outcomes based on the number and tenor of oral argument questions by justices.If only trial courts allowed jurors to ask questions...
After seven of the 10 cases she studied were decided, Shullman looked for correlations -- and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case.
Shullman acknowledges that her sample was small, but the methodology has already been tested since she did her study. John Roberts Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases -- an 86 percent rate of accuracy. "The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions."