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There is a large literature on the art of asking questions. This is not surprising. In the eyes of the popular culture and much of the legal profession itself, it is with the rapier thrust of one carefully orchestrated question that the adversary can be obliterated and the case can be won. Through devastating cross-examinations, Perry Mason managed to force the real killer to confess, right on the witness stand and before the hour was up. Having sat as a trial judge for 13 years, however, I have come to the firm conviction that the focus on cross-examination has obscured the importance of another critical, less sexy advocacy skill: the art of answering questions from a judge or other decision-maker. Day in and day out, it is the advocate’s ability to answer questions effectively and persuasively, not ask them, that is likely to have a major impact on trials, appellate arguments, administrative proceedings, negotiations, pretrial conferences and the like. This skill cuts across all areas of practice and deserves more attention than it has received. Too often, I have observed lawyers damage their case by dodging the question asked or bobbing and weaving like a boxer when a straight answer would suffice. Moreover, the approach a lawyer uses when responding to a question sends subtle-or not so subtle-messages to the decision-maker about the lawyer’s integrity, competence, professionalism and degree of preparation, and can serve to greatly enhance or diminish a lawyer’s most precious asset: credibility. This column will address a critical skill that often goes unnoticed and unappreciated: the skill of succinctly and persuasively responding to questions from a decision-maker. More specifically, I will be discussing four common, recurring errors that I have observed over the years when lawyers are asked questions, and how to avoid them. Before doing that, however, I want to briefly discuss the need to view questions for what they are: precious opportunities to understand the decision-maker’s concerns and to persuade. Reframing questions as an opportunity Many lawyers, particularly inexperienced ones, view questions as an annoyance, a distraction, and an interruption from their carefully prepared presentation. It is understandable that lawyers want to discuss each and every point they believe to be important in a methodical, scripted way. But this attitude represents a fundamental misunderstanding of the opportunity that a question presents. As John W. Davis, a solicitor general and one of our nation’s great appellate advocates, put it: “Rejoice when the court asks questions. And again I say unto you, rejoice! . . . [A] question affords you your only chance to penetrate the mind of the court, unless you are an expert in face reading, and to dispel a doubt as soon as it arises.” Justice Robert Jackson’s tongue-in-cheek observation is also worth keeping in mind. “I always feel that there should be some comfort derived from any question from the bench,” he stated. “It is clear proof that the inquiring justice is not asleep.” Every person brings to the decision-making process his or her own unique perspective and life experience. Every person has developed his or her own set of attitudes, opinions and beliefs. From these simple realities, the following critical observation about advocacy can be made: To be effective, an argument must, to the extent possible, be specifically tailored to the needs and experiences of the decision-maker. “One size fits all” arguments are rarely successful. In other words, people are persuaded to make decisions for their own reasons, stemming from their own life experiences, not for your reasons. Understanding this human dimension of advocacy leads to the following realization: Good advocates welcome questions because they understand that they provide a rare opportunity to understand and address the decision-maker’s particular concerns, and to actively engage the decision-maker in a dialogue. It is during such active engagements, with an exchange of ideas and the clash of viewpoints, that the sparks fly. Rather than viewing questions as a distraction, try to view them as a window into the decision-maker’s mind. They should be welcomed, not feared. Now, let me be more concrete and turn to some common problem areas. The failure to answer the question asked directly and succinctly. In random and entirely unscientific discussions I have had with judicial colleagues over the years, there is near unanimity when they are asked to identify the biggest recurring failure of lawyers who are asked questions: the unwillingness or inability to directly and succinctly respond to the question asked. The hemming and hawing, the statement that they’ll “get back to that later on,” the sometimes disingenuous attempts to change the subject or respond to a question that wasn’t asked-these and other manifestations of non-responsive answers are viewed, hands down, as the biggest problem. Lawyers who play an evasive cat-and-mouse game when asked a simple, direct question may think they are engaging in artful advocacy, and may believe they are impressing their clients, but I can guarantee that they are not scoring points with the only person who really matters: the decision-maker who asked the question and wants a straight answer. Again, I quote Davis: “If you value your argumentative life, do not evade or shuffle or postpone no matter how embarrassing the question may be or how much it interrupts the thread of your argument.” Nothing I should think would be more irritating to an inquiring court than to have refuge taken in the familiar evasion ‘I am coming to that’ and then to have the argument end with the promise unfulfilled. If you are really coming to it, indicate what your answer will be when it is reached and never, never sit down until it is made.” Let there be no mistake about it. Whatever marginal gain you think you are obtaining when you dodge a question is substantially outweighed by the cumulative losses you sustain to your case, and your credibility. Why? Because when you refuse to directly answer the question asked, you are undermining your case in the following ways. First, you are annoying the questioner who, like most people in nonlegal or legal settings, wants his or her question answered. Rather than opening him or her up to persuasion, you are closing him or her down. Second, you are diminishing your credibility, which is always the unpardonable sin. Next, you have forfeited a valuable opportunity to understand the questioner’s concerns, address them, institute a dialogue and persuade. My advice is this. When asked a question: 1. Listen carefully to the question asked. 2. If you don’t understand the question, ask that it be repeated or clarified. 3. Directly and succinctly answer the question asked. Of course, every situation is different. But in most instances, an effective way to begin your response is with a simple “yes” or “no.” Often, an effective response will be “Yes, Your Honor, that is so, but that really has no impact on this case due to factual and legal distinctions.” Or: “No, Your Honor, I don’t agree, but even if I did, I would argue that this case is distinguishable on its facts.” Beginning your answer with a “yes” or “no,” and then embellishing or redirecting the thrust of the question is a useful technique because once the questioner hears the word “yes” or “no,” he or she believes his or her concerns are being addressed. Best lawyers are candid, direct and plain speaking Misstating the facts or law. Aaron Burr once famously stated that “Law is whatever is boldly asserted and plausibly maintained.” Unfortunately, many laypeople-and even some lawyers-tend to accept our second vice president’s cynical formulation. Lawyers are often portrayed as “hired guns” who are paid to be “mouthpieces” and to shade the truth as far as they can without actually lying. In reality, this portrayal is way off base. In my experience, the best lawyers are almost always candid, direct and plain speaking. I believe that stating immutable rules or principles is fraught with danger because every situation is different and calls for a somewhat different approach. But there is one rule that is irrevocable, written in stone, and has no exceptions. The advocate must never, ever knowingly misstate the facts or the law. From a professional and ethical perspective, the reasons are too obvious to require detailed discussion, but the need for candor is also essential as a way of protecting one’s credibility. When a lawyer loses his or her reputation for honesty, when his word cannot be trusted, he loses his most precious asset. Once lost, credibility is often impossible to regain, particularly in the eyes of a judge or other decision-maker before whom you may be appearing for years to come. Why do some lawyers make factual or legal misstatements? It is not always because they seek an unfair advantage. Often, it is simply due to inadvertence or lack of preparation. Sometimes, it is due to a fear of looking unprepared or ignorant. It is always better, however, to simply state “I don’t know the answer, Your Honor,” or “I don’t have the answer now, judge, but I will try to get it for you” than to speculate. And if you learn that you have misstated something to a court after the argument, always take immediate steps to inform the court, and your adversary, of the error. Douglas S. Lavine, a judge on Connecticut’s Appellate Court, is the author of Cardinal Rules of Advocacy (NITA 2002), and Questions from the Bench (ABA Section of Litigation 2004).

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