Appeal Conferences

There is no corresponding Circuit Rule. Rule 33 Rule 34. Oral Argument (a) In General. (1) Party's Statement.

Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (b) Notice of Argument; Postponement.

The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. (c) Order and Contents of Argument. The appellant opens and concludes the argument.

Counsel must not read at length from briefs, records, or authorities. (d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued.

Separate parties should avoid duplicative argument. (e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant's argument. If the appellant fails to appear for argument, the court may hear the appellee's argument.

If neither party appears, the case will be decided on the briefs, unless the court orders otherwise. (f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal.

Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. Rule 34 Circuit Rule 34 Oral Argument (a) Substance and Style of Oral Argument.

Oral argument should undertake to emphasize and clarify the written argument appearing in the briefs. This court will not entertain any oral argument that is read from a prepared text. (b) Time Allowed for Argument. Counsel will be afforded such time for oral argument as the court may provide and will be so advised by order.

(c) Notice by Counsel. Unless the court orders otherwise, no less than 7 days before the date of scheduled argument, the court must be notified of the names of counsel who will argue. Not more than 2 counsel may be heard for each side except by leave of the court, granted on motion for good cause shown. Such requests are not favored.

In cases in which 15 minutes or less per side is allotted for argument, only one counsel may be heard for each side except by leave of the court, granted on motion for good cause shown. (d) Apportionment of Time Among Parties. In the absence of an order of this court, and subject to the provision as to number of counsel stated in paragraph (c), counsel for the parties on each side of a case, including counsel for any intervenor, may agree on the apportionment of the time allotted. In the event of a failure to agree, the court will allocate the time upon motion duly filed and served.

Unless otherwise ordered, counsel for an intervenor will be permitted to argue only to the extent that counsel for the party whose side the intervenor supports is willing to share allotted time. (e) Participation in Oral Argument by Amici Curiae. An amicus curiae, other than one appointed by the court, will not be permitted to participate in the oral argument without leave of the court granted for extraordinary reasons on motion, except that counsel for the party supported by amicus curiae may consent to such participation subject to the provision as to number of counsel stated in paragraph (c) above. A motion by amicus curiae seeking leave to participate in oral argument must be filed at least 14 days prior to the date oral argument is scheduled.

(f) Failure to File Brief. A party who fails to file a brief will not be heard at the time of oral argument except by permission of the court. (g) Continuance of Oral Argument. When a case has been set for oral argument, it may not be continued by stipulation of the parties, but only by order of the court upon a motion evidencing extraordinary cause for a continuance.

(h) Consolidation. Where 2 or more cases are consolidated under FRAP 3(b) or for other reason by this court, the consolidated cases will be considered as one case for the purpose of this rule unless the court directs otherwise. (i) Exhibits and Handouts. If counsel intends to use exhibits during argument or to hand out prepared materials, notice of this intent must be provided to the court and all other counsel presenting Rule 34 argument by letter received not less than 7 days before the date of the argument.

The letter must set forth justification for the use of the exhibits or handouts. (j) Disposition Without Oral Argument. (1) Procedure. Whenever the court, on its own motion, or on the motion of a party or stipulation of the parties, concludes that oral argument is not needed, the court may, after causing notice of that determination to be given to the parties by the clerk, proceed to dispose of the case without oral argument.

(2) Reconsideration. Motions for reconsideration of a decision to dispose of a case without oral argument may be made within 10 days of the date of the order advising counsel of this court’s determination that the case is to be decided without oral argument. Such motions are disfavored. Rule 34 Rule 35.

(Transferred to Rule 40) See Circuit Rule 40.