When The Court Asks A Question, Answer It
Be ready to take direction from the Court about what it wants answered, not simply the questions you wish to discuss.
Jillian L. McNeil
When preparing for an oral argument, and when actually appearing before the Court, be ready to take direction from the Court about what it wants answered, not simply the questions you wish to discuss.
Recently, my colleagues and I appeared for an argument in the United States Court of Appeals for the Second Circuit. We represented the Defendant-Appellees and were tasked with defending the District Court’s order granting our motion for summary judgment. At the time of the argument, our Firm had represented the Defendant-Appellees for nearly four years in five related actions over multiple jurisdictions. The issues on appeal had been briefed and argued on at least three separate occasions, and had been distilled to the point that we knew—or, more accurately, thought we knew—exactly what the Court of Appeals would want to hear at argument.
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However, just days before the argument was scheduled, we received a letter from the Court of Appeals requesting that the parties review and respond to a subject matter jurisdiction issue clarified in a barely one-month-old Supreme Court case.
While subject matter jurisdiction had generally been an issue in our case, the Supreme Court case in question addressed diversity jurisdiction, which had not. Thus, the Second Circuit’s request was surprising and required our team to think about and prepare for the argument in a very different way than we had anticipated. We now not only had to prepare the issues we knew were the subject of the appeal, but we had to research and prepare to respond to the entirely new question posed by the Court. We did so because that is what the Court of Appeals had identified that it cared about.
When it came time for the argument, the very first question the judges’ asked regarded diversity jurisdiction under the recent Supreme Court decision. Counsel for the Plaintiff-Appellant—who is a very experienced and talented litigator—attempted to avoid the diversity issue and instead weave in the subject matter jurisdiction argument the Plaintiff-Appellant had made for years (and which is ultimately the subject of the appeal). But a member of the panel stopped him, as that is not what the Court had asked. The Court signaled that it saw the diversity issue as a dispositive one and required the parties to answer it before moving on to any of the other issues on appeal.
As a result of this exchange, my colleague who argued the appeal stood up and was able to answer the diversity question immediately and directly. Only after this, when it was clear to the Court that diversity was not an issue, were the parties able to move on to what we thought were the primary issues on the appeal.
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We were fortunate in this instance that the Court of Appeals had notified us ahead of time that the diversity jurisdiction issue mattered. But this is not always the case. On many occasions, I have been before a court where a question seems to come out of nowhere and regards a subject that I did not think was important or relevant to the case before the argument. But, when a court asks a direct question, regardless of the subject, it becomes important and relevant.
Indeed, in that moment it becomes the most important and relevant issue. The Court is telling the lawyers before it that this is what the Court cares about. Thus, in order to advocate for our clients, we must switch our focus and answer the Court’s question directly. Only after the Court’s questions are satisfied can we then move on to the issues we think are important.
Very simply, when a court asks you a question, make sure to answer it.
Jillian L. McNeil was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].
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