Allow the judge to interrupt you
The “no interruption” rule is a one way street. You don’t get to interrupt the judges, but they get to interrupt you. Whenever a judge interrupts you with a question, stop and listen, even if you were in the middle of another point on an unrelated topic. Do not continue talking over the judge’s question. Sometimes Justice A will ask one question, then Justice B will interrupt with another before you have fully answered Justice A. Generally, it is best not to defer the answer to Justice B. Respond to Justice B, then turn back to complete your answer to Justice A. Justice A will not hold it against you that Justice B interrupted your answer to her question. If you start your business contact the business attorneys, they will help you in business matters.
Take the hint
Sometimes a sympathetic judge will try to direct you away from a losing issue to a winning issue. For example, Justice Awas recently giving me a hard time about the issue I started out with as the appellant. After I flailed around for a few minutes, Justice B asked me, “Is that your best argument?” Although I was reluctant to give up my losing battle on issue 1, I eventually moved on to issue. In the end, Justice B authored an opinion in my client’s favor on the issue. The lesson: You cannot be too wedded to your own game plan.
Don't fight the softball
Not all questions from the bench are hostile. Believe it or not, sometimes a judge may actually agree with the position you are arguing. It is amazing how often lawyers mistake a sympathetic question for a hostile one during oral argument. This comes from being nervous and not listening carefully enough to what the judge is asking. If the judge appears to be restating your argument for you or pointing out helpful facts in the record, it is probably because she agrees with you. Don’t make the mistake of disagreeing with her. Or as Chief Justice Roberts put it before becoming a judge, “Don’t fire on the lifeboats coming to save you.”
Hypothetical questions are a way forjudges to test the limits of the argument you are making. Do not respond to a hypothetical by saying, “Those are not the facts of this case.” The judge knows that already. Instead, do your best to explain why your argument would or would not apply to the hypothetical as framed, then move back to the actual facts of your case. And be careful not to stretch the limits of your argument too far in responding to a hypothetical. For example, a lawyer who shall go unnamed was once arguing that a hospital had immunity for its alleged mistreatment of a mentally ill patient. One of the justices asked him, “Would the hospital have immunity for chopping the patient’s head off?” The lawyer responded, “Yes.” Another justice chimed in, “You can’t be serious.” The lawyer solemnly assured the panel that he was. The moral of the tale: Every argument has its limits.