Monday, May 25, 2009


Adam Liptak reports in today's Times (here) on a series of studies each of which demonstrates that the way to win your case in the U.S. Supreme Court is to not get asked questions. The first study was by a law student at Georgetown, the second by then Judge, now Chief Justice Roberts. Now, Liptak reports, a far larger and more comprehensive study by several academics (abstract here) reaches the same conclusion.

The moral? Liptak quotes Timothy A. Johnson, one of the new study's authors, who suggests that it might be good advice 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.”
Perhaps the better part of advocacy really is learning to shut up.

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