All appellate specialists, without exception, prefer a “hot bench” at oral argument. The sole reason for you to be there is to find out what, if anything, is troubling the Court about your case, and try to answer their concerns. But the paradox of a hot bench is this: as I told an interviewer a few weeks ago, getting more questions than your opponent means you’re probably losing. That’s been the unanimous conclusion of the academic research done on oral argument, and that’s what our research on the Illinois Supreme Court shows too.
In Table 423, we report the data for arguments in civil cases from 2008 through 2015. We divide winning and losing appellants, and winning and losing appellees, year by year. In that eight year period, winning appellants averaged more questions than losing appellants exactly once. Winning appellees have never averaged more questions than losing appellees.
For 2008, winning appellants averaged 19.3 questions at argument to 18.89 for losing appellants. Winning appellees averaged only 12.22 questions, while losing appellees got 22.27. For 2009, appellants averaged 19.75 (winning) and 20.64 (losing), and appellees averaged 11 (winning) and 17.71 (losing). For 2010 and 2011, the difference for appellants grew a bit, with winners averaging five fewer questions (17.26 to 22.21 in 2010, 15.24 to 20.56 in 2011). Winning appellees were only slightly less busy in 2010 – 12.36 to 14.32, but much less so the next year (7.89 questions for winners, 18 for losing appellees). In 2012, winning appellants averaged 15 questions to 17.11 for losing appellants. The difference on the appellees’ side was much bigger – 9.44 for winners, 18.07 for losing appellees. In 2013, winning appellants averaged 13.63 questions to 17.67 for losing appellants. Winning appellees averaged 7.87 questions to 10.42 for losing appellees. In 2014, winning appellants averaged 15.25 questions to 23.4 for losing appellants. Winning appellees averaged only 10.10 questions to 14.75 for losing appellees. Last year, questioning was somewhat down across the board. Winning appellants had 7.96 questions on average to 12.08 for losing appellants. Winning appellees averaged 6.05 questions to 12.48 for losing appellees.
So what’s the bottom line – how long are the odds facing someone who gets more questions at oral argument?
Pretty long, as we show in Table 424 – especially for appellees. An appellant who gets fewer questions than his or her opponent is likely in pretty good shape. Appellants who received between one and nine questions fewer than his or her opponent won 84.51% of the time in civil cases. When the appellant got ten fewer questions or above, the appellant prevailed 92.31% of the time. An appellee getting fewer questions is a bit less of a lock. Appellees getting 10+ fewer questions won 68.83% of their cases, and appellees getting 1-9 fewer questions won only 43.04% of the time. Of course, the data when each side got more questions is the inverse of this. Appellants who got 1-9 more questions won 56.96% of the time, and appellants who got 10+ more questions won 31.17% of the time. Appellees who got 1-9 more questions won only 15.49% of the time, and 10+ more questions resulted in an appellee’s win only 7.69% of the time. What about when questioning was evenly split? Well, it’s only happened nine times on the civil side in eight years, but to date, appellants have won 77.78% of those cases.
Join us back here tomorrow as we’ll take a look at the same measurements for the criminal docket.