But first, a few ground rules to govern our inquiry. Data is always assigned to the year in which the case was decided, not the date of its argument. Therefore, the data for 2008 will always be incomplete, since eighteen civil cases decided during 2008 were argued in 2007. What constitutes a single question is defined by the Justice, not by counsel. Therefore, if counsel interrupts the Justice in mid-sentence to agree with a preliminary assertion, what follows is counted as the same question. On the other hand, several members of the Court often ask questions in multiple steps, stopping to ask counsel whether he or she agrees with a preliminary assertion before leading counsel to an ultimate point. In such instances, a new question begins every time the Justice invites counsel to comment. Since the data is derived from reviewing the videotapes rather than printed transcripts, this enables us to avoid what might be a slight tendency to overcount, depending on the habits of a particular Justice or counsel.
We begin with the broadest question of all – which side tends to get the most questions?
Several things are noteworthy about this table. First, there is some suggestion that activity levels during oral argument may be declining. With the exception of an interesting one-year spike in the data in 2012, the Court’s total number of questions asked during oral argument has declined each year since 2009. Although we have no data for the 2007 arguments, if the 2008 data is extrapolated to cover all forty-two 2008 decisions, that year would have seen the heaviest questioning of all.
Also, with the exception of the years 2010-2011 for appellants and 2011-2012 for appellees, the total number of questions asked the first two speakers in oral argument has decreased each year. Curiously, questions during rebuttal have remained fairly steady until 2013.
Finally, with the exception of the incomplete data in 2008 and cases decided during 2012, when one adds the appellant’s opening remarks to rebuttals, appellants have received more questions than appellees in every year. This suggests an interesting twist on the research we discussed yesterday. Previous researchers have concluded that the U.S. Supreme Court tends to ask more questions of the side which will eventually lose. Does this preliminary result suggest that the Illinois Supreme Court asks more questions of the side which lost below? One can certainly imagine a judicial approach which would lead to such a result, where the Court tends to examine the position of the party which lost below more searchingly than the Appellate Court winner in order to determine whether reversal is justified.
But these are aggregate statistics, dependent on the varying numbers of cases each year. Let’s look at the average questions per case in each segment of argument:
Average questions to the appellant have outpaced average questions to the appellee every year aside from 2008 and 2012, although the difference separating the two sides may be drifting downwards. For example, in 2011, appellants averages 6.41 questions more than appellees in opening remarks and rebuttal, while the margin was only 3.88 questions in 2014. Total questions asked to the appellant has decreased every year of our study, aside from a slight uptick in 2014. On the other hand, average questions asked of both sides hasn’t changed much during our period, dropping slightly from 2009 to 2011 before drifting upwards again in 2014 at 30.12. As with total questions, the average number of questions asked during rebuttal has remained relatively constant.
Next week we’ll turn our attention to a related question: is the number of questions affected by whether the Court is divided on the merits of the case?