Reflecting on Secrecy in 4th Circuit Panel Composition

By Steve Klepper

I am currently en route to Richmond for an argument before the Fourth Circuit. (Don’t worry, I’m on a train, not driving while  blogging.)  I know my record.  I know my cases. I know my argument. But I don’t know which three judges will be hearing argument tomorrow. The Fourth Circuit jealously guards the identity of a panel until 8:30 on the morning of argument. I understand the arguments for maintaining secrecy. Attorneys might otherwise try to make unseemly (and often misguided) prepared pitches for certain judges’ votes. But I do wonder if such secrecy, which few Circuits employ these days, adds unnecessary anxiety for advocates.

I can see an argument, for instance, that secrecy gives an undue advantage to practitioners who regularly argue before the Court, and who therefore can adjust on the fly to the news of their panels’ identities. (This is the third case I’ve argued there, meaning that I’m neither green nor grizzled.) I also suspect that practitioners with anxious personalities — a category that includes many great attorneys — might perform less well than they otherwise might, simply from the effects of entering the day with such a big question mark. And then I think of the May 2013 sitting, when a few lucky advocates learned at 8:30 a.m. that Retired Justice Sandra Day O’Connor was on their panel. That’s a lot to process in one hour.

Given that briefs, not argument, decide most appeals, it is unlikely that the secrecy makes a concrete difference in how the Court decides cases. But I’m curious what effect secrecy has on settlement patterns — specifically, whether civil cases settle post-argument at a higher rate than in Circuits that disclose panel compositions in advance. If so, it may be that secrecy makes extra work for the Court.  (I don’t mean to suggest anything about my particular case. I’ve wondered this point for a while.)

Overall, I’m torn on the policy of secrecy, just like I’m torn on whether the Supreme Court should allow television cameras. The uncertainty of panel composition likely leads to broader arguments of more wide-ranging appeal, with a lower chance that an advocate will just be gunning for two particular Judges’ votes. That’s consistent with the Fourth Circuit’s collegial argument atmosphere, with the Judges shaking each advocate’s hand at the end of each argument. I like arguing in the Fourth Circuit, and perhaps the calculus boils down to not messing with a good thing.

Follow Steve on Twitter @MDAppeal.