The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)

By Steve Klepper (Twitter: @MDAppeal)

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).


6 responses to “The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)”

  1. Daniel says :

    This strikes me as a bit of that tail wagging the dog. I would think the reason the court reverses more often in argued cases is that it selects cases for oral argument largely based on whether there appears to be a strong possibility of reversing, except in the rare case that the need to reverse is obvious and straightforward. And of course an appellant is going to do a much better job persuading the court of that in the argument portion of his brief than in the statement on oral argument. There are obviously important other reasons that would contribute to whether an appeal will be argued (e.g., a split, complex record, etc.) that you’d highlight in the statement on oral argument but not necessarily in the argument section, but I don’t think those have much to do with the higher reversal rate in argued cases.

  2. Michael Wein says :

    I tend to agree with Steve on this, at least from an Appellant’s perspective. In fact, the Fourth Circuit, is the only one that mandates under Local Rule that a published opinion not be issued, absent oral arguments. (Local Rule 36(a)) So for Appellants, getting it is step one. The chances of a reversal without publication is slim, and therefore logically, the need for oral arguments to achieve reversal requires convincing the 4th Cir. that oral arguments is justified and, should be paramount. (Unless the case is one of those rare situations where a 4th Cir. or S.C. decision directly on point comes along, justifying a quick and obvious reversal)

    There was an appeal panel a few years ago in Greenbelt, that Judge Davis attended. The main thing I took from the panel, from a practice perspective, was Judge Davis’ specific recommendation that appeal parties explain and put thought into why they should or should not get oral arguments, and not do the perfunctory request which is the way it’s done in other Circuits.

  3. Michael Lentz says :

    Steve –

    Excellent point. The suggestion regarding using 36(a) as a roadmap of sorts is a particularly helpful pointer,

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