A Good Lawyer Asks Good Questions
Professor Daniel Hemel's Speech at the Entering Students Dinner
One of my father’s favorite jokes involves an adult son and his own father and mother, who are both retired and getting on in years. The mother tells the son that she is concerned about the father’s failing memory; the father tells the son that his mind is in better shape than ever. So the next time the son goes over to his parents’ home for dinner, he decides to ask a couple of questions to test his father’s recall and see which of his two parents is right.
“Dad,” says the son. “Mom tells me that she and you went to see a movie last night. What movie did you see?”
The father furrows his brow, scratches his head, and says to his son: “Oh, what do you call it? It has a long stem with thorns?”
The son stares at his father in puzzlement, and the father goes on:
“It has reddish petals at the top?”
The son still remains silent, while the father continues:
“And it’s often given as a gift on Valentine’s Day?”
At which point the son asks: “A rose?”
The father nods vigorously and shouts: “Yes, that’s it.” And he turns to his wife and says, “Rose, Rose, what’s the name of the movie we saw last night?”
The first time I heard this joke, I chuckled, but on further reflection, I realized I had missed the point. I had assumed that the joke was on the father. Clearly, he is losing his mind if he can’t even remember that his wife’s name is Rose. But now I see that there is more to it. The father appears to be aware of his own limits—he knows what he doesn’t know, which in this case includes both the name of the movie and the name of his wife. Yet he manages to elicit responses from his son that point him in the direction of answers. His memory may be failing him, but his question-asking abilities are not.
If we were to hypothesize as to the father’s profession before he retired, “lawyer” wouldn’t be a bad guess. Lawyering, as I’ll argue tonight, is actually less about the art of arguing and more about the art of asking questions. Some of this you know already. You’ve seen Perry Mason cross-examine witnesses on television—or, if you’re too young for Perry Mason, you’ve seen Alicia Florrick on “The Good Wife” or Patty Hewes on “Damages.” Trials begin and end with opening and closing statements, but trials are won and lost on direct and cross-examination. The best trial lawyers may be good orators but they must be great question-askers.
The centrality of question-asking to the practice of law is not limited to trial work. At the end of this month, the justices of the Supreme Court will meet for something called the “Long Conference.” Why, you might ask, is it called the “Long Conference?” That, it turns out, is not an especially interesting question: It’s because it’s a conference and it tends to take awhile.
During the Long Conference, the nine justices—or perhaps eight this year—will go over the hundreds of petitions for certiorari that came in over the summer from litigants who want the Supreme Court to hear their case. Each petition begins with a question and then explains why it’s a question that the Supreme Court should answer. And if the Supreme Court agrees to take your case—in other words, if it chooses to answer your question—it ultimately rules in your favor approximately 70 percent of the time. It’s no exaggeration to say that the hardest part of winning a case before the Supreme Court is coming up with a winning question.
And it’s not just Supreme Court advocates who must master the art of question-asking—it’s also the justices. The only formal opportunity for the justices to discuss a case before they meet to vote is at oral argument. And at oral argument, the justices are restricted to asking questions. Some say that the outcome in the Citizens United case turned on Justice Samuel Alito’s question to the deputy solicitor general at oral argument, which—to paraphrase—was this: If Congress can ban corporations from funding TV ads advocating the election or defeat of a political candidate, what’s to stop Congress from banning publishers—which tend to be corporations—from printing books on political subjects? Whatever one thinks is the right answer to that question or the right result in that case, it was a good question—and arguably one that altered the outcome.
Now, to be sure, some of you will never enter a courtroom after law school—except perhaps when you are called for jury duty, which, by the way, you can’t escape just because you are a lawyer. For those of you who go into transactional practice—mergers and acquisitions, securities, real estate, and the like—questions are no less central to lawyering, and maybe even more so. The top law firms advise clients on complex transactions across the country, or even around the world. No lawyer knows every relevant rule in every jurisdiction; what the most experienced transactional lawyers do know is what sorts of legal questions are likely to arise in complex deals wherever they take place. It’s generally the partners at these firms who identify the most important questions, which they then assign to associates—or better yet, to summer associates, who are still law students, and whose hourly billing rate is lower. Progression up the ladder as a lawyer entails a gradual shift from answering questions to asking them.
So if the secret to success as a lawyer lies in asking better questions, what makes a great question? In my quest to answer that question, I thought I’d ask some of the very best questioners I know. Professor Fennell, whom many of you will have in Property this winter, responded: “Why do you ask? Are you trying to find out something? . . . To help someone else find out something? To get others to see and share your perplexity?” All, of course, great questions. Indeed, the best answers can be questions themselves.
I also asked Professor Levmore, whom many of you will have in Torts this winter, and whose questions you will come to appreciate and admire. “I don’t know,” he answered. “Imagine there really are people who are good at asking questions. Why would they be good at knowing what makes a good question? Isn’t it better to ask the question receivers? . . . Do we ask the pitcher what the secret is to throwing a baseball—or do we ask a coach? Are law professors coaches?”
Some law professors here truly are star pitchers—Cy Youngs in the question-asking sport. Perhaps the best question-asker in the history of the law school was Ronald Coase, who was on our faculty for approximately a half century until his death in 2013 at the age of 102. Professor Coase’s most famous article, “The Problem of Social Cost,” asks a simple question: If there is a different allocation of resources and rights that would make everyone better off, why don’t they trade? That question—why don’t they trade?—is what you will come to know in your 1L classes as the Coase theorem, though it is perhaps better described as the Coase question. It’s a question that reshaped the way that scholars analyze property law, tort law, even constitutional law. Coase’s question was so good that it won him the Nobel Prize in Economics.
Not all of us are Nobel Prize-winning question-askers, but law professors are—as Professor Levmore’s question suggests—question-asking coaches. And to continue with the baseball metaphor, we might think of 1L year as spring training in question-asking. Classes are taught according to the Socratic method, with the professor asking almost all of the questions and saying relatively little beyond that. At first, your primary focus will be on making sure you have an answer in case you are cold-called. As time goes on, not only will you be able to anticipate the questions, but you also will find yourself evaluating the questions that your professors ask. Some of our questions will be balls, some will be strikes, and some may be wild pitches—though we too will hopefully improve our questions as the quarter goes on. When your classmates ask questions, you will pay close attention—because it is by observing question-answer interactions that you will improve your own question-asking skills. And at the end of each course, we will test you with an issue-spotter exam, in which we are not looking merely for answers, but looking to see whether you can canvass a fact pattern and identify which legal questions need to be asked.
Question-asking in law school is not limited to the classroom or to exam time. These three years are an opportunity for you to question yourselves and each other. Not to question your abilities: we have deep faith in those; the admissions office wouldn’t have admitted you unless it were supremely confident that you could succeed here; and while your professors might not throw a strike with every question that they ask, the admissions office does not make mistakes. Rather, law school is a time for you to question what it is you want from your career and your life. If at no point in the next three years do you ask yourself “why am I at the University of Chicago Law School and what do I want to do with my degree,” then—and only then—should you question whether you are in the right place.
Questioning is, at its best, a collective enterprise, even when the question is ultimately directed at yourself. Many of the most important questions are the ones you ask with classmates here in the Green Lounge, or over lunch at Cathey Commons, or at Bar Review or wherever else you gather. How do we choose a career path that will engage us intellectually and allow us to achieve work-life balance? Given the enormous economic and professional privileges that we will enjoy upon graduation from the University of Chicago Law School, what obligations do we now have to other members of our society, and how will we hold ourselves accountable for meeting those demands? What about our world do we think we want to change? And, to quote one former University of Chicago Law School lecturer and Nobel prize-winner, how can we be “the change that we seek”?
Indeed, legal change often starts with a question. Mildred and Richard Loving asked: Why should the fact that one of us is black and the other is white prevent us from living together as husband and wife in the State of Virginia? Four decades later, Hillary Goodridge and Julie Goodridge asked: Why does the fact that both of us are women prevent us from getting married in the Commonwealth of Massachusetts? One of the most momentous questions in U.S. legal history was the question that Clarence Earl Gideon, a Florida man who was too poor to hire a lawyer, asked when he petitioned the Supreme Court for certiorari in the case we now know as Gideon v. Wainwright. Gideon wrote: “The question is I did not get a fair trial. The question is very simple.” Of course, Gideon’s question was not a question at all, at least not in the formal sense of the word. And yet the fact that Gideon could not formulate his argument in question form—the fact that he had not learned this important lesson that law school teaches—did more than even the most expertly crafted question to illustrate why he could not have a fair trial without court-appointed counsel. Of course, questions won’t change the world on their own. But nothing changes when no one asks.
Gideon’s question also illustrates something that Professor Fennell said about question-asking. “A great question,” and here again I’m quoting her, “is one usefully directed to a worthy purpose.” That’s certainly true of the questions asked by the Lovings and the Goodridges. It’s also true of the questions that Rose’s husband asks his son in the joke with which we began. They are not Nobel Prize-winning questions. But they are noble questions—questions that ultimately allow him to address his spouse by name.
Like Rose’s husband, you too will forget some of what you learn. Hopefully it will never be the name of a spouse—but if you live long enough, you might forget the names of some of your 1L year professors. You will certainly forget some of the material we teach you. But even if you don’t remember all of the nuances of tort law doctrine—indeed, even if you don’t remember the name of the professor who taught you 1L torts—you will remember to keep on asking questions.
It is customary for the giver of this speech to close by saying “Welcome to the Law School.” But it would be more fitting for me to close with a question. “Do you feel welcome at the Law School? What can we do to make you feel more so? What questions will you ask over the next three years?” I look forward to hearing your answers, and, of course, your questions.