Who will be sitting in that chair?

Who will be sitting in that chair?

 

There’s a lot to like about practicing in the Fourth Circuit–the case managers are excellent, the local rules and IOPs are intuitive, and the staff is remarkably responsive. It’s probably the most user friendly court I’ve ever seen . . . except in one respect: The Fourth Circuit doesn’t announce panel assignments until the day of argument.

That presents a problem for lawyers, because the Circuit is now home to 15 judges with widely divergent worldviews, judicial philosophies, and life experiences. For a given argument, you could theoretically draw anyone from Justice O’Connor* to a district judge to a former AUSA to a former state legislator to a former law-school professor (and let’s not get into the judges who check multiple boxes.) Including the 2 senior judges, the Court has 1 Reagan appointee, 2 Bush I appointees, 4 Clinton appointees, 3 Bush II appointees,  and 7 Obama appointees.While that diversity is certainly invigorating, it comes with some risk. An argument that might carry the day with one judge could well draw nothing but great vengeance and furious anger from another.

As a result, it’s very hard to craft an optimally effective argument in advance. The Fourth Circuit would likely frame this differently, and argue that not disclosing panel assignments keeps lawyers from tailoring their arguments to any particular judge. (Whether that would actually be a bad thing is an argument for another day.)

Either way, diligent advocates have come up with a few ways to cope with the uncertainty:

  1. The Little Black Book. I keep a 1-inch binder on the Fourth Circuit, which contains bios of all of the current and senior judges. It also includes my personal notes from oral arguments I’ve had before them. Quickly reviewing a judge’s background before oral argument can alert you to potential rabbit holes and missteps (like, hypothetically, criticizing a regulatory agency or office where the judge used to work . . .)
  2. Judicial Battleship. This is a tip that I just  picked up from some friends. Before arguments in the Fourth Circuit, they’ll create an Excel table that has all of the key cases listed on the left, from top to bottom, and all of the judges listed across the top of the page, from right to left. So imagine a grid 15 cases up and down the left margin, and 17 judges across the top. Whenever a judge has written a majority, concurring, or dissenting opinion in a case, the box where that judge and case intersect is filled in with an M, C, or D–kind of like playing Battleship, but with judges. You can also show where a judge has joined an opinion with notations of JM, JC, JD. On the day of argument, you can highlight the three columns for each of the threee judges that you’ve drawn. That will graphically illustrate their involvement in the most relevant cases.
  3. Flexibility. Finally, you just have to be flexible when arguing before the Fourth Circuit–not just with structure and order, as in other courts, but even with points of emphasis and (in extreme cases) themes. This is all about preparation and approaching the argument in the right frame of mind. Moot courts can help, as can careful exploration of opposing arguments.

What do you think? I’d love to hear any thoughts that you have about refining these techniques, or other approaches that you’ve developed to deal with the mystery of who will sit on your panel.

 

*Assuming that she’s still sitting by designation; I know that she heard argument last year, but I don’t know how frequently (if at all) Justice O’Connor shows up in the Fourth Circuit rotation these days.