What’s the most important part of a Fourth Circuit brief–the festively colored cover? The elegant binding? The dead cockroach that your printer smooshed between pages 19 and 20?
Steve Klepper has a thought-provoking post over at the Maryland Appellate Blog in which he argues that the most important part of a Fourth Circuit brief is actually the request for oral argument. His argument runs something like this:
- The Fourth Circuit reverses its district courts about as often as Hodor wins a debate;
- But it grants oral argument in a comparatively generous 11% of cases;
- In virtually every case that the Fourth Circuit reverses, it grants oral argument; and
- The odds of reversal rise to about 1 in 3 once the Court has granted oral argument.
Therefore, Steve concludes, an appellant’s first job is securing oral argument.
I very much enjoyed his post, but I quibble slightly with Steve’s conclusion because I suspect that it confuses correlation and causation. The good appeals will tend to garner both oral argument and reversal, but I don’t think that they necessarily result in reversal because the court granted oral argument. Instead, both the grant of the oral argument and the ultimate reversal flow from the merits of the case.
Think about it: Most of the appeals the Fourth Circuit hears are tedious dreck, and the vast majority result in affirmance in unpublished opinions–and rightly so. The Fourth Circuit doesn’t grant oral argument very often simply because most cases don’t warrant it. Every so often, though, an interesting case comes along that warrants oral argument. By their sheer scarcity, cases meriting reversal probably qualify as interesting.
Also, the grant of oral argument is not an unqualified boon. While there’s no question that a solid oral argument can help an appellant’s cause, a poor oral argument can also do tremendous damage. For example, your printer will all but guarantee you oral argument by inserting the aforementioned cockroach into your brief (trust us on this), but he wouldn’t be doing you any favors (again with the trusting).*
For my money, the most important part of a Fourth Circuit brief is either the statement of the case or the summary of the argument, depending on the case. But I hear what Steve is saying, and the rest of his post strikes me as spot on. For example, he points out that, while Local Rule 34(a) offers no guidance about what the statement concerning oral argument should contain, Local Rule 36(a) says that the Fourth Circuit will publish opinions only in cases where it has heard oral argument. Local Rule 36(a) also helpfully identifies the Court’s criteria for publication:
- The opinion establishes, alters, modifies, clarifies, or explains a rule of law within the Circuit;
- It involves a legal issue of continuing public interest;
- It criticizes existing law;
- It contains a historical review of the legal rule that is not duplicative; or
- It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.
An effective statement concerning oral argument will check as many of these boxes as possible. As Steve points out, the first, second, and fifth factors mirror the certiorari factors that the Supreme Court of the United State considers. Thus, it may be helpful to think of the statement concerning oral argument as a miniature cert petition. But however you treat it, the section deserves to be far more than an afterthought.
*The cockroach story is something of a Gentry Locke urban legend; it’s likely apochryphal and supposedly involved a lawyer who no longer works here. I do not know the identity of the guilty printer–the incident predated my time here–but our current printer, Lantagne Legal Printing, is fantastic.