J-Law 51 — Judges Must Ask Questions

Judges are required to ask questions during proceedings.

Questions are the visible evidence of thought. A Supreme Court argument is an hour of relentless questioning because the justices treat engagement with the parties' positions as the job itself. Descend through the system and the questions thin out, until at the trial level a litigant can present a complex motion to a silent bench and receive a one-word ruling — with no way to know whether the silence concealed mastery or indifference.

Experience teaches which one it usually conceals. The judge who asks nothing about a matter he is about to decide has, more often than anyone in the system admits, decided it before the hearing began or never engaged it at all. Mandatory questioning imposes a modest discipline with a powerful effect: the judge must demonstrate, in real time and on the record, contact with the actual substance of the dispute. Litigants can answer a wrong assumption only if the judge speaks it aloud.

The expected counterargument: some matters are genuinely simple, and forcing questions about them wastes time and produces theater. Simple matters generate simple questions, answered in seconds — "your position is X for reason Y, correct?" — and even that minimal exchange accomplishes something the silent bench never does: it confirms, on the record, that the judge grasped the position being decided. Theater is a risk in any required practice, and the remedy is the record itself, where perfunctory questions are visible as perfunctory and become evidence under the other laws of this declaration. The cost-benefit runs one direction. A required question costs seconds; an unengaged ruling costs the parties years. No litigant has ever walked out of a hearing wishing the judge had understood the case less, and the objection has never once been raised by the people the silence injures.