The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)
Inconspicuously placed at the conclusion of Fourth Circuit Local Rule 34(a) is a provision that “parties may include in their briefs at the conclusion of the argument a statement setting forth the reasons why, in their opinion, oral argument should be heard.” Forget the word “may.” The Local Rule 34(a) statement is, I submit, the most important part of an appellant’s brief.
Last year, the Fourth Circuit reversed in 4% of appeals terminated on the merits. It held oral argument only in about 11% of appeals terminated on the merits. Virtually all of the reversals are in cases where the Fourth Circuit hears oral argument. Only a few times per year – usually in the single digits – does the Fourth Circuit reverse on the briefs.[*] The odds of reversal rise dramatically to about 1-in-3 if the Fourth Circuit grants argument.
Step #1 for an appellant, therefore, is to convince the Fourth Circuit that the appeal warrants oral argument. Maryland practitioners, more accustomed to state court procedure, all too frequently conclude their Fourth Circuit briefs with stock requests along the lines of “Appellant requests that the Court hold oral argument.” That’s sufficient in a Maryland Circuit Court (Rule 2-311). The state appellate courts (Rules 8-522 & 8-523) don’t require a party to state anything regarding oral argument. But a stock request for oral argument doesn’t cut it before the Fourth Circuit.
Local Rule 34(a) doesn’t provide guidance on how to draw oral argument. Federal Rule of Appellate Procedure 34(a)(2) lists circumstances where argument is not required, but the factors are pretty broad.
The best place to find guidance is under the rules governing publication of decisions. Under Local Rule 36(a), the Fourth Circuit “will publish opinions only in cases that have been fully briefed and presented at oral argument.” To maximize the chances of oral argument, then, appellants should make their best cases that their appeals raise questions warranting a published opinion. Local Rule 36(a) provides concrete guidance on whether an opinion will be published:
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.
The first, second, and fifth standards are pretty close to the certiorari factors the U.S. Supreme Court considers under its Rule 10. In fact, when I draft an appellant brief in the Fourth Circuit, I treat the Local Rule 34(a) statement like a petition for certiorari. The odds of Fourth Circuit reversal are roughly equivalent to the odds of the Supreme Court granting certiorari on a paid-docket petition (4.2%).
If you read successful certiorari petitions, you’ll see that practitioners often cite divisions of authority as part of the Questions Presented. If you’re representing a Fourth Circuit appellant, it can be useful to cite divisions of authority among the Circuits or among District Courts as part of the statement respecting oral argument.
On the flip side, an appellee also can include a Statement Regarding Oral Argument. Appellee’s counsel can (and likely should) argue that, under the factors outlined in Rule 34(a)(2), argument is not necessary.
Under Rule 32(a)(7)(B)(iii), a “statement with respect to oral argument” does not count toward word limitations. But don’t abuse that privilege. Generally speaking, I try to confine the statement to a single page.
Whether for the appellant or the appellee, the Local Rule 34(a) statement should not be some tacked-on afterthought. The entire brief should build toward the conclusion that argument is or is not warranted. Oral argument does not, of course, guarantee success. But it’s the first step toward a realistic chance of success for a Fourth Circuit appellant.
[*] I found only three such cases from 2013. United States v. Cunningham, No. 12-4546, 2013 WL 5996665 (4th Cir. Nov. 13, 2013); Wells Fargo Advisors, LLC v. Watts, 540 F. App’x 229, 232 (4th Cir. 2013); United States v. Liapina, 532 F. App’x 362, 367 (4th Cir. 2013).