A Dispute Only a Lawyer Could Love

Brent Benjamin, the GOP candidate for the West Virginia Supreme Court of Appeals, recently stated that, during his 20 year legal career, he had argued cases before the Court. Well, maybe not. As the Charleston Gazette reported today, Benjamin apparently has never actually appeared before the Court, although he has written numerous pleadings in cases dealt with by the Court. I'm not a Benjamin supporter, by any stretch, but I sort of feel his pain on this one.

See, the WV Supreme Court is one of the few state appellate courts that (1) is the only appellate court in the state and (2) has almost complete discretion over which cases is hears. As a result, lots and lots of petitions for appeal are filed by the court and then summarily rejected without full briefing or any oral argument. Some petitions go straight through to a full hearing, with briefing by both sides and full oral argument. Other petitions are heard by the Court as "oral presentations," where the party petitioning the Court gets a few minutes to try and convince the Court to hear the case. The other party doesn't appear for those presentations. So making it to the full Court hearing is not easy. As an example, in the two years I was a state PD I wrote about a half dozen petitions for appeal and only got one oral presentation (later rejected) out of them (I did win a summary reversal, tho'!). By contrast, next week I'll be appearing in front of the Fourth Circuit in Richmond for the fourth time since I joined the Federal PD two years ago.

In other words, it is entirely possible for someone to "appear" before the state Supreme Court quite a bit but never do an oral argument. So there isn't really any great scandal here. Still won't make me vote for Benjamin, however.