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?