IOP § III(L): Oral Argument

1. Judges’ Preargument Preparation

Approximately six to eight weeks before scheduled court sessions, the clerk sends copies of the briefs and the designated record to each judge on the upcoming argument panel. All judges on the panel read the briefs before argument. Some judges draft preargument memoranda. Counsel should be prepared to answer questions because all members of the panel are familiar with each case by the time of argument.

A hearing panel may agree that a case should be decided without oral argument and notify the clerk to remove the case from the calendar. The court recognizes this method may occasionally inconvenience counsel, but no method of screening is perfect. The court urges counsel to assess the need for oral argument realistically when preparing the briefs. See 8th Cir. R. 28A(i)(1).

2. Identity of Panel

The printed argument calendar lists the judges on each panel. Panel changes may occur after publication of the argument calendar, and the courtroom deputy will confirm the composition of the panel on the day of argument at preargument check-in.

3. Preargument Check-In

On the day of argument counsel must report to the clerk’s office at least thirty minutes before court convenes regardless of the order in which the cases are scheduled that day. Counsel must be available for argument any time during the argument schedule. The court may accelerate or change the argument schedule without notice. Counsel must advise the courtroom deputy of the name of the attorney or attorneys who will argue for each party and, if they represent appellant, the apportionment of the time between opening argument and rebuttal. Prompt check-in is necessary so the courtroom deputy can prepare the daily docket for the panel when court opens, give last-minute instructions, and answer questions. Attorneys who are arguing must have entered an appearance in the case. Arguing counsel must be a member of the court’s bar unless they have been appointed to represent a person proceeding in forma pauperis.

4. Number of Cases Argued

Each panel normally hears arguments in five or six cases each day, although the number may vary according to the state of the docket. Cases are nearly always heard in succession without a break for lunch, and panels may hear arguments in the afternoons. The printed calendar specifies the time allotted to each side.

5. Oral Argument.

After completing check-in, counsel should proceed to the designated courtroom and await the call of the docket. All counsel should be in the courtroom at the docket call. Counsel whose case is listed as the first case for argument should take seats at counsel table before court convenes so that they can begin their argument without delay once the docket has been called.

It is customary to address the court with “May it please the court” and await the presiding judge’s acknowledgment before beginning argument. Counsel should begin the argument by stating his or her name and the name of the party he or she is representing. Appellant’s counsel may wish to indicate how time has been divided between opening and rebuttal argument. Whenever time will be divided between counsel, the first attorney to speak for that side should inform the panel of the division of time.

Counsel should minimize multiple attorney presentations. The court discourages two or more attorneys for the same party dividing argument time. Divided argument ordinarily is not helpful to the court and must be approved by the court in advance. Reading from briefs, decisions, or the record is not permitted except in unusual circumstances.

Counsel should speak clearly and directly into the podium microphone as the arguments are recorded. The height of the lectern in the courtrooms is electrically adjustable and counsel should feel free to adjust the height as necessary.

Digital versions of the arguments are placed on the court’s website, and are generally available for listening or downloading the same day as the argument. Arguments are also available as free podcasts from the iTunes store.

During oral argument, counsel should refrain from speaking whenever one of the judges is asking a question. Oral argument is an interactive process, and while counsel should have remarks prepared, he or she should not expect to give a set speech. For suggestions relating to oral argument and two experienced appellate judges’ views of the process, see Judge Donald P. Lay, Oral Argument on Appeal – “Where the Action Really Is”, 63 F.R.D. 453, 508 (1974), and Judge Myron Bright, The Ten Commandments of Oral Argument, 67 A.B.A. J. 1136 (1981).

6. Warning Lights

The courtroom deputy explains the court’s warning-light system at the preargument check-in. Counsel will receive a green light at the podium when they begin their arguments. Unless otherwise requested, counsel will be given a yellow warning light when five minutes of argument time remains. If appellant’s counsel has reserved time for rebuttal, the yellow light comes on when the time reserved remains. If counsel continues to argue, the time used will be subtracted from the time reserved for rebuttal. The red light will come on when all time has expired. Counsel must stop arguing immediately unless responding to a judge’s question. All courtrooms are equipped with digital “countdown” timers for counsel’s convenience.

7. Reference to Supplemental Authority

If after the briefs have been filed counsel becomes aware of supplemental authority, counsel should file a written citation of supplemental authority and serve a copy of the decision to the other parties and to the court if it is unreported. See FRAP 28(j). If timely filing is not feasible, counsel may file the citation on the day of argument and the clerk will see that the materials are distributed to the panel before the case is called. Counsel may refer to the authority at oral argument if it has been filed and served on opposing counsel.