Talk to yourself: The rhetorical question

I used to think that rhetorical questions in briefs were pompous, if not offensive. I shuddered at the thought of a lawyer penning this rhetorical question from Justice Scalia’s dissent in PGA v. Martin, the case about whether disabled golfer Casey Martin should be allowed to use a golf cart during tournaments:

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would someday have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

I’ve since done an about-face. I still don’t think you should try to be as sarcastic and funny as Justice Scalia, but I’ve seen many advocates use rhetorical questions to great effect.

Many of the most biting questions put the court on the defensive, suggesting that unless the judge can answer the rhetorical question posed, the judge has no choice but to find for the lawyer’s client. Here are two examples to consider:

Kathleen Sullivan, SEC v. Siebel Systems

[T]he Complaint asserts that Mr. Goldman’s “body language was positive” during the meeting on April 30. Would the [SEC] have interpreted negative body language—crossed arms and a furrowed brow perhaps—to constitute a violation as well?

Maureen Mahoney, Arthur Andersen v. U.S.

Under the Government’s interpretation, therefore, § 1515(a)(6) would have to provide a defense for someone who accidentally lies to a witness even if their purpose is to impede agency fact-finding. But telling the truth to impede agency fact-finding would remain criminal. So a defendant who thinks he is telling the truth to impede an official proceeding has committed a crime if he is right, but not if—entirely unbeknownst to him—he happens to be wrong?