A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument.
I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared. That’s why we don’t waste their time going over background information, and that’s why they have so many questions. So very many questions. But I’ve never really spent much time thinking about the psychology of that dynamic from the judge’s perspective. It’s probably very stressful! All things being equal, any given judge is probably way more concerned about the impression she makes on her colleagues than the impressions she makes on, like . . . me? And so she’s come into the argument armed not just with an understanding of the facts and the law, but actually prepared to vote and defend that vote to her colleagues. She is committed.
And so does that mean when the judge asks a hostile question? First, that she’s thought this through, and could well be committed to this position. Second, if she is, she’s giving you a fair chance to answer the question. Third, this is the last chance that you or anyone else will have to answer the question before she casts her preliminary vote. An appellate judge not a trial judge, who can take the matter under advisement and rule after revisiting the briefs and mulling things over in the fullness of time.* She will have to vote before they let her go home! The other day, I heard a very good lawyer crack a joke along the lines of, “That’s a great question. And like any good appellate lawyer, I’m going to answer not the question you asked but the question I want to answer.” I don’t think that’s the right tack here. I think you engage the hostile question, at least the first 2-3 times that you get it.
The response, I guess, would be that we have limited time, the hostile judge has flagged that she is committed to a hostile position, and there’s still a potential of persuading the other judges by reiterating talking points. All fair. But how is ducking the question going to persuade them? (Again, at least the first 2-3 times you get it. If the judge is just being mean, then by all means, disengage.)
All of which is a roundabout way of reiterating the most basic piece of good advice an appellate lawyer can get: answer the question.
*I mean, sure, if she gets assigned to write the opinion, she will be mulling things over for weeks. But she’ll be doing that after casting her vote and locking herself in before her colleagues. So a reversal at that point would presumably be awkward. There’s just got to a be a lot of psychological inertia there.