orgtheory.net

the art of the ‘show’ question

I took this morning off to hear arguments before the Seventh Circuit Court of Appeals. I found myself thinking about the sociology of the judges’ interaction and about the lessons it implies for us Joe Shmoe academics when we interact with each other in public.

In this instance, the forces shaping their motivations were warped by the fact that one of the judges, Diane Wood, is on Obama’s short list for the Supreme Court nomination.  Judge Wood was not the one making the arguments.  Her role was to ask questions.  But, there’s no doubt about it, asking those questions was a performance; it was a show. It would have been even if the press wasn’t scrutinizing her every word. Judges in a setting like an en banc panel ostensibly ask questions to help them decide a case. Yet, everyone knows that’s not all that’s motivating them. Questions are aimed at their fellow judges either to recruit allies to their side or buttress against the their ideological opponents.  Also, judges, like the rest of us, are conscious of their status and the performance they give in the hearing is a non-trivial part of how they are sized up. There are times when the attorney standing at the bar seems completely peripheral to the agenda of the judges.

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None of this should come as a surprise to anyone who has been in an academic research seminar. The dynamics are not all that different: questions are aimed at multiple audiences and one’s colleagues and students often edge out the author as the intended target.  Done poorly, that generates questions that simultaneously manage to be unhelpful to the author and fail to achieve the intended goal of impressing the others.  But there are ways of squaring the circle.  Judge Wood was a tour de force on the bench and she’s got my vote for SCOTUS.  Her colleagues Frank Easterbrook and, of course, Richard Posner, also made strong impressions.  It leads me to a few off hand thoughts on how to give a good “performance” as a member of the audience in a research seminar based on watching the judicial pros go at it (and more than a few orgtheory pros go at it in my day-to-day life)…

1. Focus on the logic, not the conclusion. In many research workshops I’ve been in, most of the discussion focuses on either the phenomenon or the conclusion the author is trying to advance. But I think the best questions focus on neither of these. That was certainly the case today; the judges don’t want to tip their hand as far as the judgment they are likely to reach.  So rather than say anything about the conclusion, all of the questions are aimed at the logic that delivers the conclusion.  This has a few benefits. First, it allows you to be neutral so even if you disagree with the conclusion, you don’t come across as pedantic. It also allows you have an impact on the discussion even if you know little about the phenomenon.  And, it helps you to link your criticism to an empirical strategy.  In the end, you will also do a better job of pointing the author toward a better conclusion rather than simply tearing down the one they have.

2. Motivate your questions out of a desire to improve the argument. In the hearing today, Judge Wood often started questions with the phrase “I would think you would want to argue…” Whenever someone asks a question that way in a seminar, my ears perk up. Not only does it indicate they are thinking through the logic, typically it also means they are offering advice on how to improve the argument. The result: speakers are grateful; people in the audience understand the paper better; and you come off looking smart as hell. But there’s more to it than that: Judge Wood was also being strategically very savvy. In a few instances, it was clear she was sympathetic to the case, but the lawyers were making their arguments very badly. Because she knew the facts and arguments in the briefs extremely well, she could help direct the attorneys toward arguments that she knew would bolster her position once it came time to go back and decide it.

3.  A good take down starts with a logical puzzle.  There are occasions of course where you don’t really want to improve the argument.  You want to eviscerate it.  There are classier ways to go about this than others.  Judge Posner has it down.  He’s famous for asking hypotheticals in oral arguments.  His goal is to catch the speaker in a logical trap: “if X is true, then Y must also be true.  But if Y is true, then Z cannot be true.  Your argument Z really depends on Y, but you just agreed with me on X.  So how can your argument hold?”  More than one attorney fell into this trap under questioning today.  The key to this was soft selling the X argument; luring the attorney into the logical puzzle and then going in for the kill.  Effective.

4. Keep it short. There is nothing worse than a questioner who gets lost in their own bloviating. Senatorial hearings are famous for questions that end in a question mark, but which go on so long the witness has no opportunity to actually offer an answer. When it comes to asking show questions, don’t be like Joe (Biden).  Judge Wood was fairly succinct in her questions.  But Chief Judge Easterbrook was a master of the short question.  He got directly to the heart of what he was asking.  Pithy questions score major points.

5.  Hold the speaker to answering your question and ask a good follow-up.  Attorneys are masters at the art of evading difficult questions.  But a skilled questioner will detect the direction the speaker is going and redirect back to the question asked.  This is much easier when the question is asked with intent.  (I’ll admit, I have a tough time with this one sometimes.  I get a little caught up in asking the question and I don’t always listen to the answers as closely as I should.)

6. Draw an empirical implication to your question. One interesting thing about Appeals Courts in the US is that they pass judgment based on the record as it exists; they cannot ask for additional evidence.  So if the lower court which originally heard the case didn’t gather evidence, their hands are tied.  Academics are a little different; in theory at least, we can always go back and get more evidence.  But, particularly if a paper is fairly well advanced, additional data collection isn’t likely.  If you are asking a question that poses an alternative hypothesis, don’t just toss the hypothesis out there: try to extend the thought into a plausible empirical test. Or, at a minimum, use the data they have to show that your interpretation is consistent and suggest a way of distinguishing the two. You will do much better with this if the person can actually do that test with existing data. If not, try to suggest a way of getting data that will not require hiring a legion of undergraduates.

7. Be prepared. Tim Russert rose to the top of the Sunday morning political programs by being far better prepared than any of his competitors. In today’s hearing, it was clear from the get-go: Judges Wood and Easterbrook had read these cases front to back and knew just where they wanted to lead the debate. It’s not necessary to go to quite those lengths. In most cases, just reading the paper will make you better prepared than 90% of the people in the room. By far the best experiences I have had in a research workshop have been when people had read the paper and formulated an opinion before they came into the seminar room. It’s remarkable what a leg up this can give you.  Moreover, as a speaker, it is a real compliment when people take the time to read and consider your work.

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In the end, I came away very impressed by Diane Wood. But I was also impressed by Frank Easterbrook and Richard Posner. They made the most important, incisive, stimulating and politically astute points. You can’t come away from listening to people at that level of sophistication—judges are basically professional question askers—and not come away impressed.

Written by seansafford

May 14, 2009 at 2:50 am

7 Responses

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  1. Don’t be mystified by the performances! Appellate judges employ multiple clerks who write executive summaries and questions for oral arguments for them.

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    njandctzombie

    May 14, 2009 at 4:04 am

  2. Good suggestions Sean. I’ve thought for a while now that most academic departments underprepare Phds in the art of performance. My own presentation training basically came from imitation and trial-and-error. Unfortunately, you can tell from a lot of job talks that this kind of training isn’t atypical.

    Yesterday Bill Barnett gave one of the best talks I’ve seen recently in our colloquium. Most of his talk was him standing in front of a blacked-out screen talking about the logic of his argument. He told great stories to illustrate his points and he invited conversation, which gave us plenty of opportunity to try and poke holes in his logic. He put up just a few slides – one showing the equation and a few other showing tables of results. It was remarkably elegant. I’m not suggesting that everyone should drop their slides and try this presentation form, but it did give me some good ideas.

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    brayden

    May 14, 2009 at 1:44 pm

  3. well, i guess i had this hearing to go to yesterday, but wish i’d been there to see it. of course, the real question i hope the post poses is what kinds of questions did you and your colleagues ask him?

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    seansafford

    May 14, 2009 at 1:53 pm

  4. I guess the same could be said for seminar questioning – there’s just not enough training for this in most departments. I like it that your department at Chicago has post-talk briefings with the grad students in which you talk about what went on during the talk. It’s a great training situation both because it socializes the students and it helps them learn how to theorize, present, make logical arguments, etc.

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    brayden

    May 14, 2009 at 2:53 pm

  5. I, too, was in the courtroom for this, and you have offered a great retelling of the events, with very thoughtful insight.

    Judge Wood is certainly adept at what she does. She is highly regarded in my eyes.

    And, although, I would bet that Easterbrook and I are on opposite political teams, I LOVED how concise, direct and to the point he was. He clearly has a logical mind, and I like that!

    I enjoyed reading the recap of this!

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    Mintie

    May 14, 2009 at 6:20 pm

  6. All the things that you loved about this — those are the things that make lawyers dread a panel of Easterbrook, Posner, and Wood. :-P Any loose thread in your argument, and WHOOF, the whole darn sweaters at your feet in front of your client.

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    Michael F. Martin

    May 15, 2009 at 7:07 pm

  7. Actually, the most amusing in a schadenfreude sort of way, is to listen as they try to put back together an argument for a stunned advocate who didn’t realize he didn’t have one to begin with.

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    Michael F. Martin

    May 15, 2009 at 7:09 pm


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