A recent article in the New York Times entitled, When the Justices Ask Questions, Be Prepared to Lose the Case, discusses a study by a law student who concluded the more questions a party is asked during court the likely the party will lose.

While on the one hand I see great merit in this theory, one that I have often seen myself first hand. Lawyers before a Judge have two options when the other party is getting hammered. Stay quiet and let the Judge do your work, or provide additional ammunition.

However, I can’t see how this theory is entirely correct either. Often in cases where Judges ask questions, as the article states and how I have seen first hand it’s more for clarification or to think aloud.

On numerous occasions I have seen a party peppered with questions even criticism by a Judge only to still come out on top.

What it comes down to is the fact that there is no absolute clear guideline on how a Judge will deliberate. When they feel like it, a Judge will overrule decades of precedent, common sense or simply fail to see a bigger picture.