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The Journal of Appellate Practice and Process

Abstract

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or the question’s effect on other judges—and all would be better served by advance notice to advocates that specific issues might come up during oral argument.

This article doggedly pursues this simple but important proposition. It explores contemporary conditions that increase the value of preliminary questions, the empirics of their present (and limited) use, and the most compelling circumstances for employing them, illustrated primarily through missed opportunities in recent Supreme Court cases. Preliminary questions interrogate the traditional view of argument—itself fairly recent, and persisting despite erosion of its preconditions. But the potential for preliminary questions to improve judicial communication and deliberation is too compelling to leave muted. The article concludes with a mooting of the proposal.

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