The Questioner Versus The Answerer

The associate sends a draft brief to the partner, then swings by the partner's office to get comments; who has the upper hand?

dartboard pen on target inside straightThe associate sends a draft brief to the partner.

The associate then swings by the partner’s office to get comments.

Who has the upper hand?

In one sense, of course, the associate has the upper hand: He’s read all the cases, and thought about them, and sweated over the brief for endless hours. He knows everything about this particular legal issue, and the partner is likely to know far less.

In the important sense, however, the partner has the upper hand, for two reasons: First, the associate’s draft presents all of the associate’s ideas to the partner. Suppose the associate came up with six arguments; five were routine, and any clown would have noticed them, but the sixth is pure brilliance, which almost no one (and surely not this partner) would have ginned up. This associate is great!

The partner reads the draft. Having been presented with all six arguments on a plate, the partner naturally thinks that, unaided, the partner would have crafted all the same arguments. The partner thus naturally discounts the value of the associate’s contribution to the case. The partner then gins up a seventh — not particularly convincing — argument, perhaps worthy of a footnote. The partner thinks: “Why did that foolish associate miss the seventh argument? Anyone should have noticed that!”

The person who thinks about an issue last — here, the partner — may thus naturally discount the value of the person who thought about the issue earlier and then shared all of his ideas — the associate.

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The injustice doesn’t stop there. When the partner asks the associate about the brief, the partner can ask about anything remotely related to the brief: What are the specific facts of the case we cite in footnote three? Did this witness make this admission at his deposition? Did you consider this possible analogy, which might shed light on our issue? And so on.

The associate must thus be ready to defend not just his work, but also anything remotely related to the work. The partner may not naturally realize the (1) difficulty and (2) tremendous amount of preparation time needed for a person in the “answerer’s” — the associate’s — role.

Other examples illustrate the same point: What’s easier — arguing to the appellate panel, or sitting on the appellate panel?

The lawyer knows the case cold and has studied everything in the neighborhood. But the judges can ask about anything — whether contraception is a mortal sin or a venial sin, to take just one example from a recent appellate argument. The questioner — the judge — has the upper hand, because the judge can ask about anything, and it’s awfully hard for the lawyer to know absolutely everything.

Here’s one last example: Is it easier to report to the board of directors or to serve on the board? Board service can be challenging, of course, and a diligent board member might spend hours poring through background materials distributed before meetings. But the person presenting to the board must be ready to answer any question on any issue; knowing everything about everything is a tough job.

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You could make a presentation about data privacy, for example, describing when personal information can be transferred out of the European Union. And the board member can note that many large companies have recently been hacked. Has the company properly guarded against hacking?

Data privacy is one thing and data security is another; a lawyer who understands data privacy is unlikely also to serve in the IT function of data security. But, if the questioner asks, the “answerer” is supposed to respond. The questioner is unlikely even to realize just how unfair the question is.

What’s the point?

Questioners — be sensible! Recognize that asking questions is often much easier than answering them. It’s hard to be ready to answer every conceivable question, and pinning down the answer to a question may take hours — or days, or weeks — of effort. Don’t lightly criticize a person who can’t answer a question.

Answerers — take heed! It’s your job to anticipate every question — even the off-the-wall ones — that your questioners may ask, and to be ready to respond intelligently. Don’t go into the partner’s office, or the appellate courtroom, or the boardroom, or the like, without having prepared completely and anticipated the tangents that your presentation might suggest. The mismatch in power, and the relative difficulty of the roles of questioner and answerer, doesn’t let you off the hook.


Mark Herrmann is Vice President and Deputy General Counsel – Litigation and Employment at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.