Several years ago, Georgetown University law student, and now fellow GULC alum, Sarah Levien Shullman analyzed Supreme Court arguments and found that you could predict the winner based on the Court’s questions. The party that was asked more questions almost always lost. According to Adam Liptak’s recent New York Times story* — click here to read it — Chief Justice Roberts, as an appellate judge, reproduced the study with a sample of cases since 1980 and confirmed the results, explaining to the Supreme Court Historical Society:
The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate
The study made me think about predicting district court outcomes. A study of district court outcomes based on questioning would be much hard to perform accurately because the data set is much larger and the decision making body is much larger and less interrelated. My experience says that, at the district court level, you can learn more from the tone and substance of a court’s questions than from the number of those questions. But I am curious to hear what you think.
* Tip of the hat to the Legal Writing Prof Blog for identifying the story.