The Fourth Circuit is notoriously stingy when it comes to granting oral argument. Last year (admittedly an odd year), CA4 terminated 696 private civil cases. It terminated 86 of them, or 12%, after oral argument. It reversed in 36 of them, or just over 5%. Steve Klepper has a nice essay from 2014 about all of this over at the Maryland Appellate Blog. He argues that given modern Fourth-Circuit practice, the statement concerning oral argument under Local Rule 34(a) is the most important part of a brief. Steve urges appellants and appellees alike to include a robust statement about the need for oral argument, drawing on the criteria for publishing opinions under Local Rule 36(a):
Opinions delivered by the Court will be published only if the opinion satisfies one or more of the standards for publication:
i. It establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.
This is great advice! I’ve cribbed it before. But why are we going back to the well now?
Because SB 1261 expanded the jurisdiction of the Court of Appeals of Virginia. We have joined the rest of the civilized world in allowing appeals of right in all cases. And as you may have heard, we are adding some judges to the court in light of the new caseload.
Even so, CAV will have its hands full. The court will face an onslaught of appeals–civil, criminal, and administrative; some will have merit, and some
will be brought by me will not. So it’s important to give the court tools to manage its workload.
The General Assembly has accommodated by changing Code § 17.1-403 to let the CAV dispense with oral argument. The court can now skip oral argument when the panel unanimously agrees that oral argument is unnecessary because “(a) the appeal is wholly without merit or (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.”
§ 17.1-403. Rules of practice, procedure, and internal processes; promulgation by Supreme Court; amendments; summary disposition of appeals.
The Supreme Court shall prescribe and publish the initial rules governing practice, procedure, and internal processes for the Court of Appeals designed to achieve the just, speedy, and inexpensive disposition of all litigation in that court consistent with the ends of justice and to maintain uniformity in the law of the Commonwealth. Before amending the rules thereafter, the Supreme Court shall receive and consider recommendations from the Court of Appeals. The rules shall prescribe procedures
governing the summary disposition of appeals which are determined to be without merit(i) authorizing the Court of Appeals to prescribe truncated record or appendix preparation and (ii) permitting the Court of Appeals to dispense with oral argument if the panel has examined the briefs and record and unanimously agrees that oral argument is unnecessary because (a) the appeal is wholly without merit or (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.
Now, there’s not much we can do with an appeal that is “wholly without merit.” Probably shouldn’t be playing with those in the first place? But it’s certainly possible to argue that your issues have not been authoritatively decided or that the case law should be modified.
And for what it’s worth, Fourth Circuit Local Rule 36(a) gives some pointers about why a given topic may not have been “authoritatively decided” or otherwise merits detailed review.