Federal Circuit Rule 34: Oral Argument

(a) Reply Brief Instead of Oral Argument.

If an appeal is not called for oral argument and the appellant declined to file a reply brief in anticipation of replying during oral argument, the appellant may file a reply brief within fourteen (14) days after the notice that the appeal will be submitted on the briefs.

(b) Time Allowed.

The time allowed each side for oral argument will be determined by the court. The clerk of court will advise the parties of the time allotted.

A party is not obliged to use all the time allowed. The court may terminate the argument if it deems further argument unnecessary.

(c) Visual Aids.

(1) Visual Aids Used at a Trial or Administrative Hearing; Notice.

If a party intends to display at oral argument a visual aid used at a trial or administrative hearing, the party must advise the court by letter no later than fourteen (14) days before argument.

(2) Visual Aids Not Used at a Trial or Administrative Hearing; Notice.

If a party intends to display at oral argument a visual aid that was not used at a trial or administrative hearing, the party must give notice to opposing counsel and notify the court by letter no later than twenty-one (21) days before argument.

(3) Objection to the Use of Visual Aids.

An objection to the proposed use of a visual aid at oral argument must be submitted as a letter and filed no later than seven (7) days before the oral argument. If a party objects, the parties’ submissions will be treated as a motion and response and will be referred to the panel.

(4) Scope.

Presentation programs or projection equipment may not be utilized during argument without leave of the court. A motion for leave must be filed no later than twenty-one (21) days before argument. This rule does not preclude use of a chalkboard or equivalent supplied by the party.

(5) Disposition.

The clerk of court may dispose of visual aids not removed by the parties.

(d) Scheduling Conflicts.

(1) Notice from the Clerk.

In cases to be scheduled for oral argument, the clerk of court will issue a notice to the parties following the end of briefing to request scheduling conflict information from counsel.

(2) Requirement to Notify of Conflicts.

Within seven (7) days after the clerk of court issues a notice requesting scheduling conflicts, the parties must file a completed response on the form prescribed by the clerk of court, even if no scheduling conflicts exist. Until the case is scheduled for argument or submitted or resolved without argument, counsel has a continuing obligation to advise the court of any additional scheduling conflicts or changes to existing scheduling conflicts that arise after counsel responds to the clerk of court’s initial notice.

(3) Good Cause Requirement.

Arguing counsel must show good cause for each identified scheduling conflict; conflicts that do not provide sufficient showing of good cause will not be considered. If arguing counsel fails to show good cause for a scheduling conflict in advance of scheduling and the court schedules the case on a day arguing counsel is unavailable, then the case will not be rescheduled absent a showing of compelling reason and leave of court.

(4) Delegation of Authority.

The court may delegate to the clerk of court the authority to impose additional limitations on scheduling conflicts, including limiting counsel to a specified number of scheduling conflicts, and to accept or reject individual conflict dates for lack of good cause.

(e) Arguing Counsel.

(1) Notice of Oral Argument; Required Response.

The clerk of court will notify parties when a case has been scheduled for argument. Each party must respond to the notice of oral argument on the form prescribed by the clerk of court within the time requested by the clerk of court.

(2) Limitation on the Number of Arguing Counsel.

Absent leave of court requested at least seven (7) days before argument, no more than two (2) counsel may argue on behalf of each side and no more than one (1) counsel may argue on behalf of each party or on behalf of parties represented by the same counsel or by counsel from the same firm.

(3) Copies at Oral Argument.

In a case scheduled for oral argument, all arguing counsel must have a copy of each brief and appendix in the case, including those filed by other parties, close at hand during the argument, in a form (paper or electronic) allowing speedy access to its contents.

Ed. Note: This practice has since changed. Arguing counsel are now expected to check-in with the courtroom deputy at their assigned courtroom at least thirty minutes before the start of the day’s session.

Practice Notes to Rule 34

Scheduling Conflicts.

Counsel should not submit any scheduling conflicts before receiving the notice from the clerk of court. In responding to the notice, counsel are advised that the unavailability of a client or non-arguing co-counsel is an insufficient basis for showing good cause.

Court Sessions; Hearing Date.

Sessions of the court will be held as announced by the court. Sessions are held regularly in Washington, D.C., but the court may sit elsewhere pursuant to Federal Circuit Rule 47.1. The Notice of Oral Argument is usually issued within four months after all briefs and the appendix are filed. Counsel are advised of the scheduled date of hearing approximately six weeks before the session.

Accessibility Accommodations.

A party or counsel of record requiring a communication-based disability accommodation should notify the clerk of court at least two (2) weeks before the scheduled hearing. A party requiring a mobility-based disability accommodation should notify the clerk of court at the time of filing the notice of scheduling conflicts. Additional information about accessibility accommodations is available on the court’s website, www.cafc.uscourts.gov.

Oral Argument.

Counsel must report to the clerk’s office at least thirty (30) minutes before the scheduled session and before proceeding to the courtroom.

The members of the panel will have read the briefs before oral argument. Counsel should, therefore, emphasize the dispositive issue or issues. Time allotted for oral argument is ordinarily fifteen (15) minutes per side (not per party or attorney), although the court may vary this depending on the nature of the case. The court may extend the allotted time during the argument, or it may terminate the argument, if it deems it appropriate.

Justification for Claim of Confidentiality.

Unnecessarily designating material in the briefs and appendix as confidential may hinder the court’s preparation and issuance of opinions. Counsel must be prepared to justify at oral argument any claim of confidentiality.

Conduct of Oral Argument.

Guidelines for the conduct of oral argument are available on the court’s website, www.cafc.uscourts.gov, in the Clerk’s Office’s Guide for Oral Argument.

Copies of Recordings Available.

Oral arguments are recorded for the convenience of the court.

Recordings are available on the court’s website, www.cafc.uscourts.gov free of charge. The court does not provide or produce transcripts of oral argument or recommend transcription services.

Open to Public.

Unless held in camera, oral arguments are open to the public. Those in attendance whose attire or behavior reflects adversely on the dignity of the proceedings will be asked to leave.

Oral Argument on Motions.

Oral argument is ordinarily not granted on motions. See Federal Rule of Appellate Procedure 27(e).

Introducing New Authority at Argument.

A party seeking to raise new authority at argument that was not previously submitted to the court should provide a copy of the new authority to the opposing party in advance of argument by email or, if time permits, by filing a citation of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j).

Use of Visual Aids.

The court discourages the use of visual aids or presentations during argument.

Forms.

Using Federal Circuit Form 32 satisfies the requirements for responding to the clerk of court’s notice to advise of scheduling conflicts and for ongoing advising of schedule conflict changes under Federal Circuit Rule 34(d). Using Federal Circuit Form 33 satisfies the requirements for responding to the clerk of court’s notice of oral argument under Federal Circuit Rule 34(e).

Paper Copies at Oral Argument.

Parties are encouraged to bring paper copies of each brief and appendix to oral argument.