The “fourth wall” is the invisible wall between the audience and a performance. Normally, performers perform without acknowledging the audience or that they are performing. Characters breaking the fourth wall, however, talk directly to the audience or otherwise show awareness that they are in a performance.

Lawyers and judges play roles and act, including in costume. Those roles are bound by rules. One unspoken rule is to stay in character. But sometimes judges step out of character, and sometimes advocates should, too. Or at least be prepared to.

When the judge breaks the wall. An umpire always stays in character, and some judges are the same. But more judges are stepping out of character or the usual script. Some even advocate for it, like Richard Posner. In a case involving whether Title VII covers sexual orientation discrimination, Judge Posner chastised the majority for what he saw as a false performance, though he agreed with the result: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 357 (7th Cir. 2017) (en banc) (Posner, J., concurring).

Judge Posner’s open admission of “what’s really going on” is extreme, but milder examples are common. At the recent Supreme Court argument in Upper Skagit Indian Tribe v. Lundgren, Justice Kagan asked respondent’s counsel about the strategy behind the briefing and what transpired at a meeting with the Solicitor General’s Office. I once had a Ninth Circuit judge order me to leave the courtroom and call a defendant’s probation officer to see how he was doing. U.S. v. Boule, 291 F. App’x 38 (9th Cir. 2008). Those sorts of things are outside the record and shouldn’t be relevant, but that’s probably not the answer you should give. So what should you do?

When judges break the fourth wall, by asking questions outside the record or addressing you as the person behind the actor playing the part, they are trying to have an honest conversation. Take them up on it. The best advocacy is usually conversational and candid.

When the advocate might break the wall. Sometimes judges stay in role but falsely assume things that can be cleared up by going outside the record. For example, in an employment case a judge may falsely assume a terminated employee only had the misconduct mentioned in the record and was otherwise good. Judges also make assumptions about motives. A judge may assume that a manufacturer didn’t include some purported safety measure to save money. In fact, the measure may be counterproductive (outside the record); oh, and by the way, the manufacturer’s employees and I personally use the product (personal, outside the performance).

Sometimes I step out of character and explain researching and writing the brief, emphasizing that I genuinely thought I had provided the court with the right answer. So I’m not just acting like my position is right. I sincerely believe it. And I’ve just told you something of my process for figuring it out, which you should trust.

In arguments that have gone poorly along conventional lines, I frequently wish I had stepped out of character more, perhaps to reset the assumptions or to get the judges themselves to stop going down a misguided path in the conventional script. Or to gently suggest that they are giving a false or poor performance.

Advocates and judges will play roles and act, and the eventual opinions will usually follow the accepted scripts. But informality is on the rise, and along with it an acknowledgment of the acting that goes on versus “what’s really going on.” Breaking the fourth wall can, at times, lead to a more honest and effective conversation. At the very least, when preparing for an argument, be sure to get answers to questions outside the record that a curious non-judge might want to know, in case a judge decides to step out character and ask them.