FAQs - Oral Argument

Local Rule 34(a) sets out the court's pre-argument review procedure. Cases are referred to randomly selected three-judge panels for review of the briefs and appendix in light of the oral argument criteria in Fed. R. App. P. 34(a)(2). Oral argument will be allowed unless: (i) the appeal is frivolous; or (ii) the dispositive issue or set of issues has been recently authoritatively decided; or (iii) 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. If all of the judges of the panel conclude that oral argument is unnecessary, they may make any appropriate disposition, without oral argument, including but not limited to, affirmance or reversal. Whenever at least one member of the review panel determines that oral argument would be of assistance, the panel notifies the clerk, and the case is placed on the oral argument calendar.

Because any case may be decided without oral argument, all major arguments should be fully developed in the briefs. The parties may include in their briefs at the conclusion of the argument a statement setting forth the reasons why, in their opinion, oral argument should be heard. Local Rule 34(a).

As soon as possible upon completion of the briefing schedule, or within 10 days of tentative notification of oral argument, whichever is earlier, any party may file a motion to submit the case on the briefs without the necessity of oral argument. Local Rule 34(e). The motion must state the position of opposing counsel.

In assembling argument panels and assigning cases to those panels, the court uses a computer program designed to achieve the following goals prescribed by Internal Operating Procedure 34.1:

• assure, insofar as practicable, the opportunity for each judge to sit with all other judges an equal numbers of times;
• assign cases, insofar as practicable, to judges who have had previous involvement with the case on appeal through random assignment to a pre-argument motion or prior appeal in the matter (though there is no guarantee that any of the judges previously involved will be assigned to a hearing panel);
• provide for random assignment so as to assure that both the appearance and the fact of presentation of particular types of cases to particular judges is avoided.

The judges of the court have no involvement with the assignment of cases to panels. Within the clerk's office, the paneling and assignment functions are performed by a computer program. If a prior panel or judge has had previous involvement with the case by way of a pre-argument motion or a prior appeal, the clerk's office will make every effort to assign the case for oral argument to that judge or panel, but there is no guarantee that any of the judges who have previously been involved with an appeal will be assigned to a hearing panel. I.O.P. 34.1.

Cases are tentatively calendared for a particular argument session. Approximately 10 weeks in advance of the proposed argument session, counsel are afforded 10 days to notify the clerk's office of any scheduling conflicts (ECF entry is Notice re: conflict with proposed argument dates) and to file any motions which may affect calendaring of the case (i.e. motions to continue or motions to submit on the briefs). Any motion filed by counsel during this tentative calendar period, as at any time, must reflect whether opposing counsel consents to or will oppose the motion. Local Rule 27(a). The clerk's office will attempt to accommodate any conflict of which it receives written notice during the tentative calendar period. See Appellate Procedure Guide - Calendaring of Cases for Argument for more information.

The clerk's office sends counsel a "calendaring notice" approximately six weeks prior to the argument date, advising counsel of the date of oral argument and the time by which counsel must register for argument. The notice directs counsel to acknowledge within seven days who will appear and argue the case and state how much argument time will be used. Counsel uses the restricted ECF entry Oral argument acknowledgment to acknowledge that they are arguing or appearing for oral argument.

Once a case has been calendared for a date certain, it will be removed from the argument calendar only for good cause shown for the requested relief and that the relief could not have been requested within the tentative calendar period. Local Rule 34(c).