Recently, during an oral argument in the D.C. Circuit, counsel (who shall remain nameless) attempted to do what appellate practitioners call “fighting the hypo.” Chief Judge Srinivasan had posed a difficult hypothetical question, while making clear: “I’m not saying that this has happened. I’m just giving you a hypothetical.”
“I take the point of the hypothetical, and I want to engage with the hypothetical,” counsel began promisingly. “But that is definitely not what is presented in this case.” Immediately Chief Judge Srinivasan responded that he’d already “baked” that very caveat into the question, adding: “I’m just trying to understand the implications of your argument.”
We’ve all been there. We know judges want a straight answer. But the last thing we want to do is admit that our position holds uncomfortable implications. And so we flinch.
Several years ago, I witnessed this exchange in the D.C. Circuit (again, I’ll withhold the name of counsel, a fine appellate attorney):
Judge: “What’s the answer to my hypothetical?”
Counsel: “We think … that hypothetical is not presented by this case.”
Judge: “Counsel, that is the worst answer. That answer is not acceptable in this court ever. Many years ago, when late Justice Scalia was sitting as a judge here, and a lawyer answered [the] hypothetical by saying ‘that’s not this case,’ he threw his briefs at him.”
Counsel: “Then Your Honor, before I get hit with briefs….”
As this exchange shows, the problem with fighting the hypo is not just that you’ll provoke the court (though you will). It’s that you’ll seem unprepared. In a sense, the appellate lawyer’s main job is to answer the hypothetical, just as the main job of the court is to issue a holding that works fairly in future cases. Judges ask hypothetical questions to see if your proposed holding will work in future cases.
The question, then, is how an advocate can be ready for the hard hypothetical. The only way, wrote Justice Scalia (many years after he threw the hypo-fighter’s briefs across the courtroom), is to have “absolute clarity about the theory of your case.” A. Scalia & B. Garner, Making Your Case: The Art of Persuading Judges 155 (2008). Once you know the theory well enough, you’ll immediately know the answer. Id. The easiest example, of course, is when you’re asking for a bright-line rule. If you’re really demanding a bright line (let’s say, for a filing deadline) then even a hypothetical that tugs on the heartstrings (the power went out during the filing!) should not move you from that line.
The best way to ensure that you can defend your theory, Justice Scalia suggested, is to hold moot courts. Moot courts force you to stand on your theory against difficult hypothetical questions. Id. (For guidance on running a good moot court, go here.) If your theory produces uncomfortable results, your moot-court judges can help you explain why the results are not so bad, will occur too rarely to matter, or, in a truly oddball case, call for a unique exception. Id.
But whatever you do, don’t get briefs hurled at you. Be ready for the hypothetical question.