South Carolina Lawyer - January 2016

The Road To Richmond: Tips For A First-Timer's Trip To The Fourth Circuit

Beth Burke Richardson 2016-01-08 01:01:24

The road to Richmond is not frequently traveled by lawyers these days, especially by attorneys with civil practices. Fewer than seven percent of all appeals filed in 2014 were set for oral argument.1 Fourth Circuit appeals are generally down an average of six percent from 2010.2 Of the 4,646 appeals filed from June 2014-2015, well over half were criminal or prisoner- related.3 About a quarter of the appeals filed were resolved on procedural grounds, and the vast remainder decided on the briefs.4 With these statistics in mind, it is not surprising that many wellheeled civil, appellate attorneys may have not had the opportunity to argue in Richmond. Getting to Richmond sooner rather than later There are some ways to increase your chances of arguing before the Fourth Circuit. The Fourth Circuit’s Criminal Justice Act (CJA) Capital and Discretionary panels appoint qualifying attorneys who have applied and been accepted to serve as counsel in eligible cases.5 At minimum, attorneys must be admitted to practice before the Fourth Circuit and have some appellate practice experience showing the attorney has the ability to brief and argue cases on appeal.6 The Discretionary Panel appoints appellate attorneys in either ancillary criminal matters such as habeas corpus, where there is no right to counsel, or civil, agency, tax, civil rights or bankruptcy matters, involving an indigent party, when the appointment would serve the interests of justice or aid in the resolution of issues on appeal.7 Although there is no guarantee that oral argument will be permitted in Discretionary Panel cases, the court appoints attorneys in a handful of cases and only after determining that further briefing as well as oral argument would possibly assist the court.8 Ready, set, go! Before filing any appeal, an attorney should consider first whether he or she is prepared to devote a lot of time to the appeal. Fully researching and briefing the issues, plus preparing for oral argument, may take over a hundred hours or more, and there may be other costs to your firm too. Likely, another associate’s and legal assistant’s time may add another 60 hours or more of time to the case. In addition, the median disposition time for cases on appeal in the Fourth Circuit is surprisingly fast. From the time of filing, the Fourth Circuit has the fastest median disposition time of any circuit in the country, deciding appeals on median in about 5.3 months.9 As with any appeal, the Initial Brief and Appendix may be due as soon as a month after filing, with the Response due about a month later, and any Reply within 14 days after that time.10 Extensions are discouraged by rule, but may be obtained when requested well ahead of time and for cause.11 If you are appointed, the case may come with the parties’ informal briefing previously ordered by the court to determine whether appointment of counsel is necessary. However, the briefs only mark the starting line for an otherwise quickly run marathon. Once the appeal is filed, you will be off and running reviewing the designation of matter and the record below, and ordering any transcripts if necessary. If working on an appointed case, it is important to remember to send an engagement letter to your client to formally clarify the scope of your representation on appeal. Both the Federal Rules of Appellate Procedure and the Local Rules for the Fourth Circuit provide critical guidance at each stage of the appellate process. So become familiar with the rules. If, after consulting both the federal and local rules, you remain unsure about the meaning of a rule, there are helpful contacts at the clerk of court’s office.12 Finally, consider engaging an appellate consulting service. Unless you have experienced federal appeals assistants in your firm, you will want to consider using an appellate consulting service to ensure your written briefs and appendix comply with all the formatting and other requirements. In the end, this expense is negligible for the savings in stress, headache and potential mistake. Also, if you are appointed, this fee will likely be covered through reimbursement at the end of your service. Brief writing Well-written briefs require rigorous research and time to edit and refine the analysis underlying the arguments in your client’s favor. So get started early. If you are new to the case, it will take time to read the record below and the case law identified by the parties. Remember also to begin by examining the issues anew and from an appellate court’s perspective. Ask yourself how you can best approach the issues on behalf of your client, knowing the Fourth Circuit will be concerned about how its decision may not only affect your case but other cases within the Fourth Circuit. Sometimes a decision in your client’s favor may apply broadly to benefit many other litigants, and sometimes you will need to emphasize that the result your client seeks is rightly limited to cases involving a specific set of facts. Writing a good brief is a skill and an art that is beyond the scope of this article. One simple step to remember is to have at least one other attorney read your brief and provide feedback as to the analysis. Whether your mind is as sharp as Chief Justice John Roberts’ or you write as well as the likes of Antonin Scalia or Elena Kagan,13 another set of eyes on a brief will undoubtedly improve its persuasiveness. Travel details Once the briefing stage is over, possibly as soon as three months later, your appeal will be set for oral argument. First, decide whether to drive or fly and where to stay in Richmond. From South Carolina, driving may be preferable. It takes almost as long or longer to fly from any major South Carolina city because of the necessity of connecting in Charlotte or Atlanta. Another benefit to driving is that you can practice your arguments out loud as you drive, using the travel time to think about and refine your points. This time would be especially fruitful if you bring another attorney with you, perhaps someone who has never been to Richmond before, who can pepper you with questions about your arguments. The Omni Richmond Hotel is perhaps the most popular hotel for judges and lawyers to stay, because it is two blocks away from the courthouse and has a good gym. Other well-known options nearby include the Berkeley and the Jefferson Hotel, a little more expensive, but smaller venues with historic charm. Preparing for the big day After making your reservations, it is time to prepare for the argument itself. For first-timers, it is nice to begin by listening to some Fourth Circuit oral arguments.14 Since May 2011, the Fourth Circuit has been posting audio recordings of its arguments. You can find appeals argued by attorneys you know or have heard of, and get a feel for the variety of styles in opening, responding and rebutting. In addition, find which courtroom your argument has been assigned, and in what order your argument will be heard on the oral argument calendar.15 The oral argument calendar is posted on the Fourth Circuit’s website at least a month in advance. Each panel typically hears three to four arguments a day, and your argument will be heard in the courtroom and in the order it is listed on the oral argument calendar. Ideally, you should plan to attend arguments in that courtroom the day before to get a sense of the setting and to see some of the judges in action. Also, you may want to consider whether any of the other cases being heard by your panel that day involve similar issues. Then, familiarize yourself with the composition of judges on the court. You can look up their biographies and headshots online.16 Although you will not know who is actually on your panel until the morning you sign in for argument, educating yourself about the judges in advance will help you be more comfortable when the time comes to argue. Do not worry about memorizing the names of the judges. “Your Honor” is a safe and respectful reference. Also, as you face the bench, the most senior judge always sits in the middle, with the next most senior on the right, and the most junior on the left. To prepare for oral argument you must thoroughly test your knowledge of the case. • Read, re-read and outline the briefs and applicable case law. Research whether any new case law discusses important cases in your brief. You should consider what impact these new cases, if any, have on your arguments and the court’s view of your appeal. • Anticipate what questions the judges may ask you at oral argument. What were the alleged weaknesses in your argument emphasized by the other side? What are your best points in response to any alleged weakness? Is there an aspect of your argument that is particularly complex and oral argument could provide an opportunity to explain the matter more simply for the judges? Since the briefs were filed, is there a matter you understand better or differently and want to be sure to explain that view to the judges? • Consider several hypotheticals. Often, judges may ask whether the result you advocate for would be the same under another set of facts. Appellate court judges are always mindful of the manner in which their decisions set precedent for other cases and fact patterns to follow. Think of other fact patterns and how the result in your case would play out. • Practice your argument many times. Practice your argument many times in front of at least one other person, who will help you refine the articulation of your argument and ask questions, both hypothetical and technical about your argument. The judges will be prepared and you should be prepared too. • Reduce your outline further to even one page and write at the top at least one overarching policy point to return to and emphasize on appeal. For example, in answering a hypothetical question, suggest that the answer supports precedent-setting policy considerations, such as judicial efficiency or a litigant’s interest in bringing a case to finality. Consider the logistics Each side typically has 20 minutes to argue. The appellant can reserve some time for a rebuttal. At the podium, a green light will appear as the argument starts. When the light turns amber you have five minutes left. When the light turns red, if you are in midanswer, you may finish the answer, and then tell the court, “I see my time is up, unless there are other questions, I will take my seat.” If the judges stop asking questions while your time is still running, do not think this circumstance indicates that you have won or lost. The judges come prepared, so often all the time provided for argument is not necessary. In such circumstance, many attorneys respect everyone’s time by poignantly but succinctly raising all their major points and stating: “I have now presented the major points in my argument on appeal and if there are no further questions, I will take my seat.” After argument, the judges on the Fourth Circuit come down from the bench to shake your hand. Logistically, it is a good idea to get to Richmond the day before no later than 4 p.m. First-timers especially should walk the path to the courthouse, find the sign-in area for attorneys in the morning, and visit the courtroom to which the case was assigned before 5 p.m. when the courthouse closes. Arriving early allows time to get some exercise at the gym (or, weather permitting, alongside the beautiful James River), eat at one of the many nearby excellent restaurants and go to bed early. From this point on, adrenaline will take over and you may eat very little again until your argument is over. Also, you should read over other useful information about Fourth Circuit protocols. The Fourth Circuit website has other useful orientation-type information, such as where you can find coffee and tea, whether electronics are permitted, and so forth.17 Finally, remember, final disposition on appeal in the Fourth Circuit averages 5.3 months, so the court’s decision should be issued relatively soon after oral argument. Written, published opinions or orders creating precedent-setting case law are rare these days, however. In 2013, less than 15 percent of all federal appeals decided by a written opinion or order were published.18 In the Fourth Circuit, that percentage is much lower, the lowest in the country in fact. Only seven percent of all appeals decided by a written opinion or order are published.19 Interestingly, although there is no research to support a correlative conclusion, this percentage tracks closely the number of cases in which the Fourth Circuit grants oral argument.20 The road to Richmond and back is a thrill to be sure. Many a tested Fourth Circuit appellate attorney has said, “It never gets old and the adrenaline rush never goes away.” Or, similarly, “It will take a couple of months to come down from this experience.” Truly, the details of the trip will be vividly remembered, and hopefully spring a love for the Fourth Circuit’s oral advocacy traditions. Beth Burke Richardson is Of Counsel to Sowell Gray Stepp & Laffitte in Columbia. Endnotes 1 United States Courts, Federal Judicial Caseload Statistics 2014 Tables, Table B-1-U.S. Court of Appeals..Cases Commenced, Terminated, and Pending By Circuit and Nature of Proceeding During 12 Month Period ending March 31, 2015, available at federal-judicial-caseload-statistics-2014- tables (last visited October 15, 2015). This percentage is slightly lower than the national average at least in 2013, where 11% of appeals were set for oral argument. United States Courts, Judicial Facts and figures 2013, Table 2.2—Appeals Filed, Terminated, and Pending (Details), available at judicial-facts-and-figures-2013 (last visited October 15, 2015). 2 United States Courts, Federal Court management Statistics, U.S. Court of Appeals Summary.. 12 Month Period ending June 30, 2015, available at statistics-reports/federal-courtmanagement- statistics-june-2015 (last visited October 15, 2015). Other circuit court of appeals are also experiencing fewer filings, with some circuits, such as the First, Second, Third, Seventh, and Tenth, experiencing as much as 10% or fewer filings since 2010. Id. Mostly, the drop in filings appears to be related to the filing of fewer criminal and prisoner related appeals with civil appeals on the slight uptick. 3 Id. A detailed breakdown of the number of civil and criminal cases, including the nature of the suit or offense, commenced in the federal circuit courts of appeal both in total and by circuit can be found at federal-judicial-caseload-statistics-2014- tables, United States Courts, Federal Judicial Caseload Statistics 2014 Tables, Table B-7—U.S. Court of Appeals..Civil and Criminal Cases Commenced, by Circuit and Nature of Suit or Offense, During 12 Month Period ending March 31, 2015 (last visited October 15, 2015). 4 United States Courts, Statistical Tables for the Federal Judiciary, U.S. Court of Appeals..Cases Commenced, Terminated, and Pending By Circuit and Nature of Proceeding During 12 Month Period ending June 30, 2014, available at (last visited Oct. 15, 2015). In the Fourth Circuit, of the 4,768 appeals terminated in the twelve-month period preceding March 31, 2015, approximately 23% were decided on pure procedural grounds. Id. Of those remaining, 3,189 appeals were decided after submission on the briefs, and 319 after oral argument, and 174 by consolidation. Id. 5 United States Court of Appeals for the Fourth Circuit, Appointed Counsel, Appointment Panels, (last visited Oct. 15, 2015). 6 Appointments and assignments in capital or criminal appeals also require that attorneys have experience in federal criminal law and Sentencing Guidelines. In capital cases, attorneys applying to serve as first chair for the appeal must also have three years of felony appeal experience. United States Court of Appeals for the Fourth Circuit, Appointed Counsel, Appointment Panels, Capital Appointments, at (last visited Oct. 15, 2015). See also Federal Rules of Appellate Procedure and Local Rules of the Fourth Circuit Rule 46 (governing attorneys eligible to practice before the Fourth Circuit and the appointment of counsel in appeals). 7 The Discretionary Panel may also appoint attorneys from time to time in cases in which the pro se party is not indigent or in which the parties have not presented both sides of an issue, but appointment would serves the ends of justice or aid in resolution of matters on appeal. United States Court of Appeals for the Fourth Circuit, Appointed Counsel, Appointment Panels, Discretionary Panel, at (last visited Oct. 15, 2015). 8 Id. 9 United States Courts, U.S. Court of Appeals..Judicial Caseload Profile, available at federal-court-management-statistics-june- 2015 (last visited October 15, 2015). The Eighth Circuit is similarly quick, deciding appeals on median in 6 months. Id. Some other circuits, such as the First, Ninth, and District of Columbia Circuits, take on median average as long as a year or more. Id. 10 The deadlines may vary from case to case. See Federal Rule of Appellate Procudue 31(a) (Time to Serve and File a Brief) & Local Rule 31(a) (Shortened Time for Service and Filing of Briefs in Criminal Cases) & (b) (Briefing Orders). 11 Local Rules of the Fourth Circuit Rule 31(c). 12 United States Court of Appeals for the Fourth Circuit, Contacts, at (last visited Oct. 15, 2015). 13 Rosen, Jeffrey, Strong Opinions, New Republic, at article/politics/magazine/92773/elenakagan-writings (last visited Oct. 18. 2015). magazine/92773/elena-kagan-writings (last visited Oct. 15, 2015). 14 United States Court of Appeals for the Fourth Circuit, Oral Argument, listen-to-oral-arguments (last visited Oct. 15, 2015). 15 United States Court of Appeals for the Fourth Circuit, Oral Argument Calendar, at oral-argument-calendar (last visited Oct. 15, 2015). 16 Although there is not one place to find both headshots and biographies of the current Fourth Circuit bench, an internet search for each judge will bring up headshots and biographies and you can put together your own portfolio of the judges on the Fourth Circuit. 17 United States Court of Appeals for the Fourth Circuit, Oral Argument, Courtroom Protocol for Counsel, at (last visited Oct. 18, 2015). 18 United States Courts, Judicial Facts and Figures, Table 2.5—Opinions and Orders Filed by Type, in Cases Terminated on the Merits After Oral Argument or Submission on Briefs, available at judicial-facts-and-figures/2013/09/30 (last visited October 15, 2015). 19 United States Courts, Judicial Business 2014 Tables, Table B-12—Types of Opinions or Orders Filed in Cases Terminated on the Merits, By Circuit, During the 12 Month Period Ending September 30, 2014, at statistics-reports/judicial-business-2014- tables (last visited October 15, 2015). This percentage is calculated by considering only cases terminated on the merits, not procedural grounds. Id. 20 See supra n.ii.

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