By Paul Mark Sandler

[The following interview appeared in the March 23, April 6, and April 20 issues of The Daily Record.]

In recent months, this column has featured conversations with several distinguished jurists, including Chief Judge Robert M. Bell of the Court of Appeals of Maryland and Chief Judge Joseph F. Murphy, Jr., of the Maryland Court of Special Appeals. Now we turn our attention to another appellate court of critical importance to attorneys in our region, the 4th U.S. Circuit Court of Appeals. I was fortunate to sit down earlier this year with Judge Paul V. Niemeyer. Below, Judge Niemeyer elaborates on his background, the Court’s decision-making process, common appellate practice mistakes, the Booker/Apprendi decisions, and his views of “legislating” from the bench, among other topics.

Q. Judge Niemeyer, thank you very much for inviting me to your chambers. Many people think of the U.S. Court of Appeals for the Fourth Circuit as a mystery court veiled in secrecy, yet powerful in setting policy and standards of interpretation of law that govern our lives. Therefore, I’d like to ask you some questions to help enlighten our readers about the court. How long have you been a judge on the court?

A. First of all, thank you for coming. It’s good to see you. I also agree with you that we are the unknown court. We are usually the court of last resort in most cases that come before us. I’ve been on the court since 1990. Before that I was a judge for the United States District Court for the District of Maryland for two years, starting in 1988.

Q. For a number of years before taking the bench, you were an active trial lawyer in Baltimore, is that correct?

A. Right.

Q. Do you find that your experience as a trial lawyer helps you in deciding cases, or at least establishing a dialogue with the advocates that come before you?

A. Yes. Those of us who tried cases or sat as a trial judge know that there is some sixth sense that operates in the courtroom, by which one can decide credibility questions. Appreciating this, as an appellate judge I don’t usually try to second-guess the record below on issues of credibility.

Although those particular issues do not show on the record, you know that the people in the courtroom know when someone is lying. The lawyers know, the judge knows and the jury knows, but the record doesn’t necessarily reflect that reality. A good appellate judge is sensitive to that issue.

Q. Your father was a highly respected, influential political philosopher, and I am wondering how his views may have influenced your judicial philosophy, if at all?

A. That is a very complex question; I just wrote a book about my father. My father was an interesting figure. He fled Nazi Germany, fled socialism, and fled atheism. He was sort of a somewhat arrogant socialist, atheist when he was in his twenties. Reading a lot of Marxist materials, and so forth. He came to the United States and after a period of time converted to Christianity, and became a conservative philosopher. The rise of conservatism in the 1950s is attributed to six or seven academics, one of which was my dad. I don’t know how that influenced me ultimately, maybe it did.

Before we actually started the interview today, I was sharing with you the notion that one never quite knows how deep to go when making a decision as a judge; some of one’s makeup as a child may be in there… I’m never quite sure… I have to figure that out. Ultimately, we are who we are, and we are the product of a lot of history.

Q. Let’s start focusing now on some specifics that might be helpful to our readers. How do you describe the United States Court of Appeals for the Fourth Circuit, and where is the court located?

A. Well, the court is the intermediate court between the trial court and the Supreme Court of the United States, governing five states: Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

While we will hear oral argument anywhere within that geographical region, our main location is Richmond, Va. Recently, the court has made a concerted effort to work with law schools, to conduct oral argument at least one day during the week at a particular law school. The court has heard oral argument at almost all of the law schools within the circuit.

Q. Are the cases heard at the law schools conducted with the same style, vigor, and seriousness as in the traditional courthouse setting?

A. Yes. We try to conduct court in the same manner, and I believe that we are successful. As we sit here, in Baltimore, Md., the University of Maryland School of Law has hosted oral argument several times, and Dean Karen Rothenberg is probably one of the best at making use of this facility. She’ll have the attorneys actually come into the classroom after the oral arguments and subject themselves to questions from the students, as to why they made particular arguments or took a particular posture. While the judges don’t participate in that aspect of it, the students do. I would think that this is an enormously valuable teaching tool, and I do think that the students ultimately benefit from this early exposure to appellate practice.

Q. Does the court also conduct oral argument in courthouses in other jurisdictions?

A. We’ve held oral argument in almost every city within the Fourth Circuit, but the court doesn’t really do that as much anymore. At one point in time, when our docket was particularly heavy we had a summer sitting set up by any given judge who wanted to form a panel, and sit anywhere in the Fourth Circuit, at any courthouse. Our docket is in pretty good shape now so we don’t do that currently.


Decision-making process

Q. What are your particular responsibilities as a judge on the court?

A. Well, I guess really only one… that’s to decide appeals. How we go about doing that is determined by each judge.

Q. How do you go about making a decision?

A. Well, it’s very complex. It’s unlike a district court where judges have to make a lot of decisions on the spot. Our decisions are all evolutionary decisions.

We’ll get the case in the form of briefs about six weeks before oral argument. I’ll have my law clerks read the briefs first and do a bench memo, and then I will read the briefs and the bench memo, and talk about it with the law clerks. As a group we will come up with some tentative idea. Sometimes the idea is firm, sometimes it is very tentative, and sometimes I get to a point where I simply say let’s just toss it up and wait to hear the arguments of counsel because it’s just that close.

We then go to court and hear the lawyers and hear the other judges for the first time on the subject, in the form of their questions to counsel. Once oral argument is over, we retire and each of us votes; the baby judge first, middle judge second, senior judge third, and those are tentative votes. The senior judge then assigns the opinion.

Once the opinion is written, it is circulated by the author to the whole court. The whole court will intervene from time to time. In fact, I’ve seen opinions change at every single stage, including after they have been circulated to the whole court.

There was one case — I wish I had a citation to the case — where one judge wrote a majority opinion, was joined by the second judge, and there was a dissent from the third judge. The first judge read the dissent and said that he liked the dissent, and joined the dissent. The second judge then asked permission of the first judge if he could use the majority opinion as the dissenting opinion, and that was how it was ultimately published.

That’s only happened once since I’ve been on the court, but it illustrates the fact that comments and inputs at all levels of the process can affect the decision. But I must say that in a lot of the cases we go in with a pretty good idea as to where we think we are going, and either confirm it, or sometimes we are shaken by the arguments of counsel or the questions of our fellow judges.

Q. What are the toughest types of cases from a decision-making point of view?

A. I don’t know if they fall in a subject-matter classification. The toughest type of case is the one for which there is no precedent, and it doesn’t clearly fall within some provision of the statute, either the issue is not fully addressed or not anticipated.

For example, I remember an ERISA case where we just couldn’t get a handle on how to apportion the premiums for these plans. This was the kind of issue that only actuaries could understand. During oral argument, I asked counsel, couldn’t you just as easily have argued for the other side. Counsel responded, “I guess I could, Your Honor.” In the end, the court deliberated a great deal before reaching a decision, and the oral argument of counsel played a very important role.


Panel Assignments

Q. How are judges assigned to a panel?

A. The judges for each panel are selected at random by a computer. The judges fill out disqualification forms that contain any and all conflicts a particular judge may have, which are then fed into the computer system. In addition, if a particular panel has heard a case before, the court tries to assign the same panel to the case.

Q. Most appellate courts do not disclose to counsel or the parties the identities of the particular judges on the panel for oral argument until the day of argument. The Fourth Circuit is one of those courts. Why does the court not disclose the panel until the day of argument?

A. That’s a great question. Frankly, I’m not really sure why the court has adopted this procedure. I never really saw the value in concealing the identity of the panel. But I am aware of two reasons that many reference in support of concealing the identity of a panel until the day of argument.

The first reason is to discourage forum shopping amongst the attorneys. If the identity of the panel is disclosed well in advance of oral argument or briefing, and an attorney doesn’t like the makeup of the panel he or she has drawn, they may seek to change the argument or briefing date in hopes of securing a new panel. However, I don’t see this as a legitimate basis to conceal the identity of the panel.

The second reason is to discourage the attorneys from making targeted arguments to the panel, the thought being that counsel should argue to the court as a whole, and not to a particular judge or panel. However, I’ve frequently noticed that once the panel listing is posted on the day of argument, many attorneys take a trip to the law library and do some quick research in order to see if any of the judges on the panel wrote on the subject matter they are about to argue. So, again, I’m not sure this reason justifies concealing the identity of the panel.

Q. Would you be for or against changing this policy?

A. I wouldn’t be against changing this policy. A good compromise might be to disclose the identity of the panel a week in advance of oral argument.

Q. Many courts have instituted the practice of issuing tentative decisions in advance of oral argument. What do you think of this practice? Do you think it would be helpful to the bar?

A. I don’t think it is a good practice. I believe that oral argument is extremely important in deciding the appeals and is always helpful to the court. If the court issues a tentative decision, the impression would be that the court is already locked in and there is no point in presenting argument. I think advanced opinions would give the bar the incorrect impression that the court does not value oral argument, which is simply not the case.

Q. How many appeals does the court receive every year?

A. I believe we have approximately 5,000 appeals a year.

Q. What percentage of trial court decisions is affirmed on appeal?

A. About 94 percent, but bear in mind this statistic includes all cases including the many pro se cases that the court reviews.


Common mistakes

Q. What are the biggest mistakes lawyers make during oral argument?

A. I think the single biggest mistake made is the inability to understand that oral argument should be and must be a dialogue between the attorneys and the court, and not the attorney browbeating the court into submission, or vice versa.

One of the more frustrating things for the court, which is usually made by less experienced attorneys, is the failure or refusal to directly answer the questions posed by the judges on the panel. When arguing before the court, if a judge asks you a question, you must try to answer it directly.

There is nothing more frustrating than an attorney who avoids at any and all costs answering simple questions posed by the court. Especially in the less experienced or younger attorneys there seems to be a great deal of trepidation and skepticism in answering questions for fear that the court is leading them down a road that they cannot, or may not be willing to, travel. While it is important to know what points you can and cannot concede, oral argument should always remain a dialogue.

Q. What is the biggest mistake lawyers make in brief writing?

A. I would have to say there are three common mistakes attorneys make, all of which lead to a loss of credibility with the court: (1) they overstate the law; (2) they overstate the facts of the case; and (3) they misstate or omit facts of the case.

Having credibility with the court is essential. The best approach is to present an objective and complete statement of facts. If you can’t present all of the facts to the court, or there are certain facts that you fear, omitting them from your brief will not help. After all, if you can’t face or overcome the facts of your case in the brief, you certainly won’t be able to overcome them when you appear before the court.

Q. What tips do you have for the bar on how more effectively to represent clients before the Fourth Circuit?

A. It is important to understand the strengths and weaknesses of your case — what are your winning issues, and what are your losing issues.

To accomplish this, you must endeavor to make an unbiased assessment of the case, do the research, look at the arguments of opposing counsel, and decide if your arguments are worth presenting to the court, or whether they would compromise your credibility, thus jeopardizing the overall success of the appeal.

Admittedly, this is not an easy task, but nevertheless it is absolutely necessary. The court is certainly not going to be snookered or fooled into reaching a poor decision simply because counsel misstates or omits facts of the case or exaggerates the law on a particular subject. Rest assured that the court will be prepared on the day of oral argument, and so too should be the attorneys.

The best overall strategy is to thoroughly prepare for oral argument, know your case, and know the law. Press your winning points and be willing to concede on those points that you know will not succeed, obviously without jeopardizing the overall case.


The Court's Reputation

Q. What are some of the traditions of the Fourth Circuit? And, will you explain why the judges descend from the bench after argument and shake hands with the lawyers?

A. One of the most well known traditions of the Fourth Circuit entails the judges on the panel stepping down from the bench after every oral argument to shake hands with the attorneys and, if time permits, chat. This tradition was started back in the 1920s by Chief Judge Parker, and it identifies the Fourth Circuit, as the Fourth Circuit is the only court that does this.

Interestingly, other circuits have considered trying this practice, but have decided against it. In fact, judges in other circuits have commented to me that they would not be inclined to shake the hand of an attorney that they had just engaged in a terrible battle. My thought on the subject is that that is precisely the time when you have to shake hands. I feel that this tradition is the seal of civility and distinguishes our Court from others.

Q. It is the perception held by a considerable number of observers that the Fourth Circuit is usually conservative. Is that accurate in your view?

A. Well, Paul, I know you have your opinions on that issue. I would say that the court is not unusually conservative. Then again, I guess the question really depends on how you define the term conservative.

I believe that one of the reasons for this belief is the unusually low number of petitions for a writ of habeas corpus granted by the court, in comparison to other circuits. But, I don’t think that this is a reliable indicator, because one must look at each petition on a case-by-case basis, as each case is different and has its own complicated issues.

Another reason may be the criminal appeals on constitutional issues such as illegal searches and seizures by the government. However, again, I believe when you examine the overall case load and the decisions rendered by the court on other issues, I don’t think we are any more conservative than any other court.


Sentencing guidelines

Q. The United States Supreme Court in its 2005 Booker decision, which made the U.S. Sentencing Guidelines discretionary rather than mandatory, expanded the scope of judicial review of criminal sentencing. What impact has this had on the court’s workload, and, generally speaking, are the U.S. District Courts correctly handling their sentencing responsibilities now that the federal sentencing guidelines are no longer mandatory?

A. The impact of the Booker/Apprendi decisions on the court is still ongoing. I think these decisions are the single greatest generator of appeals for this court. The decisions have also generated quite a bit of work for the judges and attorneys involved. We are seeing cases that involve criminal convictions from 10 to 15, to 20 years ago, where defendants were sentenced under the Guidelines or even during the pre-Guidelines era.

As you know, under the Booker/Apprendi line of cases, the federal sentencing guidelines were deemed to be only advisory, and not mandatory, as once thought. Fortunately, a protocol for sentencing following a criminal conviction has been worked out by the courts, and the trial judges understand what they need to do. And certainly, if mistakes are made, that is why we are here.

This body of law is still evolving, and it’s my understanding that the Supreme Court has taken several cases on this issue, so the house could still collapse.



Q. It is no secret that there are numerous vacancies on the court. How do these vacancies impact the work of the court?

A. Well, right now we have five vacancies on the court, two of which are occupied by Judge Emory Widener, Jr. and Chief Judge William Wilkins. The court can operate with 12 or 13 judges without a problem. But, if we are reduced to 10 judges, things will get a little dicey, and it will be difficult to operate efficiently.

Unfortunately, this has become a political question. Will the current president be able to fill the vacancies, or leave them unfilled, so that the next president will fill them? One thing is clear; three to five new judges will certainly create a new dynamic within the court. It always takes time to get to know your new fellow judges and become comfortable with them as colleagues. In addition, you always miss the colleagues who have retired.


Balance of power

Q. As an appellate judge, what is your opinion of the role of the appellate court in the balance of power with other branches of government? Should the appellate courts today be accountable to the public and feel comfortable “legislating when appropriate?”

A. Well, that’s a very interesting question. I just gave a lecture at Northwestern University School of Law on that very subject.

I could spend hours talking about this issue, but for purposes of this interview the core of my thesis was that the Third Branch of government, the courts, is an institution that has been in existence for over 200 years and has during that time defined its own power and jurisdiction. Given human nature, it is highly unlikely that the courts would have gone any other way than to accrete or expand the scope of their power.

There is manifest evidence of this expansion throughout the history of the Judiciary, e.g. Marbury v. Madison, the Fourteenth Amendment, the incorporation doctrine, etc. However, there is other evidence that has not garnered as much attention, like the erosion of standing principles and the ever-expanding body of law involving facial challenges to statutes, which tends to bypass the case or controversy requirement.

For example, this broader power of the courts is evidenced by our frequent review of statutes that have just been enacted — within days — based on a constitutional facial challenge. For those cases, there has been no actual enforcement of the statute, and no harmed or aggrieved parties. In my opinion, those decisions become a form of legislating. In essence, the court becomes a veto of the legislative branch without having a real case or controversy.

I think judges are also aware of this ever-expanding authority and oftentimes take advantage of it. If judges wrote only on the facts of the case, the opinions would be very short, limited, and quite frankly might not offer much in the way of precedential value. The United States Supreme Court is very conscious of writing for tomorrow, to the point where it seems as if the Court is not as concerned about the case before it.

It seems as if the opinion writing of today has generally become a form of forward-looking legislating. That is not to say that this is a bad thing… it’s just different from where the Third Branch began.

But the biggest example of legislating is the class action lawsuit. The class action lawsuit represents hundreds, often thousands of plaintiffs, where the lawyers set the agenda, and the courts make the decisions which necessarily effectuate a nationwide policy. In short, I’m not comfortable with the courts legislating.