Rule 39.

1997 Rules of Appellate Procedure

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Rule 51

RULE 39. ORAL ARGUMENT; DECISION WITHOUT ARGUMENT

39.1 Right to Oral Argument. Except as provided in 39.8, any party who has filed a brief and who has timely requested oral argument may argue the case to the court when the case is called for argument.

39.2 Purpose of Argument. Oral argument should emphasize and clarify the written arguments in the briefs. Counsel should not merely read from prepared text. Counsel should assume that all members of the court have read the briefs before oral argument and counsel should be prepared to respond to questions. A party should not refer to or comment on matters not involved in or pertaining to what is in the record.

39.3 Time Allowed. The court will set the time that will be allowed for argument. Counsel must complete argument in the time allotted and may continue after the expiration of the allotted time only with permission of the court. Counsel is not required to use all the allotted time. The appellant must be allowed to conclude the argument.

39.4 Number of Counsel. Generally, only one counsel should argue for each side. Except on leave of court, no more than two counsel on each side may argue. Only one counsel may argue in rebuttal.

39.5 Argument by Amicus. With leave of court obtained before the argument and with a party's consent, an amicus curiae may share allotted time with that party. Otherwise, counsel for amicus may not argue.

39.6 When Only One Party Files a Brief. If counsel for only one party has filed a brief, the court may allow that party to argue.

39.7 Request and Waiver. A party desiring oral argument must note that request on the front cover of the party’s brief. A party's failure to request oral argument waives the party's right to argue. But even if a party has waived oral argument, the court may direct the party to appear and argue.

39.8 Cases Advanced Without Oral Argument. In its discretion, the court of appeals may decide a case without oral argument if argument would not significantly aid the court in determining the legal and factual issues presented in the appeal.

39.9 Clerk ’s Notice. The clerk must send to the parties — at least 21 days before the date the case is set for argument or submission without argument — a notice telling the parties:

(a) whether the court will allow oral argument or will submit the case without argument;

(b) the date of argument or submission without argument;

(c) if argument is allowed, the time allotted for argument; and

(d) the names of the members of the panel to which the case will be argued or submitted, subject to change by the court.

A party's failure to receive the notice does not prevent a case's argument or submission on the scheduled date.

Notes and Comments
Comment to 1997 change: This is former Rule 75. Technical and nonsubstantive changes are made.

Last modified: March 25, 2010