5th Cir. R. 34: Oral Argument

34.1 Docket Control. In the interest of docket control, the chief judge may from time to time appoint a panel or panels to review pending cases for appropriate assignment or disposition under this rule or any other rule of this court.

34.2 Oral Arguments. Oral argument is governed by FED. R. APP. P. 34. Cases not set for oral argument are placed on the summary calendar for decision. The clerk will calendar the oral argument cases based upon the court's calendaring priorities. Counsel for each party must present oral argument unless excused by the court for good cause. The oral argument docket will show the time the court has allotted for each argument. If counsel for all parties indicate that oral argument is not necessary under paragraph .3 of this rule, the case will be governed by FED. R. APP. P. 34(f).

34.3 Submission Without Argument. A party desiring to waive oral argument in a case set for oral argument must file a motion to waive argument at least 7 days before the date set for hearing.

34.4 Number of Counsel To Be Heard. Not more than 2 counsel will be heard for each party on the argument of a case, and the time allowed may be apportioned between counsel in their discretion.

34.5 Expediting Appeals. The court may, on its own motion or for good cause on motion of either party, advance any case for hearing, and prescribe an abbreviated briefing schedule.

34.6 Continuance of Hearing. After a case has been set for hearing, the parties or counsel may not stipulate to delay the hearing. Only the court may delay argument for good cause shown. Engagement of counsel in other courts ordinarily is not considered good cause.

34.7 Recording of Oral Arguments. No cameras, tape recorders, or other equipment designed for the recording or transmission of visual images or sound may be used during oral argument without prior court approval. With the advance approval of the presiding judge, counsel may arrange, at their own expense, for a qualified court reporter to record and transcribe oral argument. If it is the court reporter’s usual practice, the reporter may make and use a sound recording for the sole purpose of preparing an accurate transcript. The reporter may not make any recordings of the oral argument available to counsel, a party, or any other person until the court posts its recording of the oral argument on the court’s Internet website.

34.8 Criminal Justice Act Cases. The court expects court-appointed counsel to present oral argument. An associate attorney not appointed under the act may present argument only under the most pressing and unusual circumstances, and upon the court’s advance authorization.

34.9 Checking In with Clerk's Office. On the day of hearing counsel must check in with the clerk 30 minutes before court convenes to confirm the name of the attorney or attorneys who will present argument for each party and how the argument time will be divided between opening and rebuttal. All counsel in the fourth and fifth cases on the docket heard in New Orleans may check in by telephone, but must report in person to the clerk's office within one hour after court convenes. On the last day of a New Orleans session, all attorneys must report in person to the clerk's office 30 minutes before court convenes.

34.10 Submission Without Argument. When a case is placed on the oral argument calendar, a judge of the court has determined that oral argument would be helpful. Therefore, requests of the parties to waive oral argument are not looked upon with favor, and counsel may be excused only by the court for good cause. See 5TH CIR. R. 34.3.

If appellant fails to appear in a criminal appeal from conviction, the court will not hear argument from the United States.

34.11 Time for Oral Argument. The time allowed for oral argument is indicated on the printed calendar. Most cases are allowed 20 minutes to the side. The word “side” refers to parties in their position on appeal. Where in doubt, consult the clerk’s office.

34.12 Additional Time for Oral Argument. Additional time for oral argument is sparingly permitted. Requests for additional time should be set forth in a motion or letter to the clerk filed well in advance of the oral argument.

34.13 Calling the Calendar. The court usually does not call the calendar unless there are special problems requiring attention. The court hears the cases in the order they appear on the calendar.

I.O.P. - SCREENING - SCREENING IS THE NAME GIVEN TO THE METHOD USED BY THE COURT TO DETERMINE WHETHER CASES SHOULD BE ARGUED ORALLY OR DECIDED ON BRIEFS ONLY. THIS IS DONE UNDER FED. R. APP. P. AND 5TH CIR. R. 34.

(A) THE JUDGES OF THE COURT SCREEN CASES WITH ASSISTANCE FROM THE STAFF ATTORNEY. WHEN THE LAST BRIEF IS FILED, A CASE IS GENERALLY SENT TO THE STAFF ATTORNEY FOR PRESCREENING CLASSIFICATION. IF THE STAFF ATTORNEY CONCLUDES THAT THE CASE DOES NOT WARRANT ORAL ARGUMENT, A BRIEF MEMORANDUM MAY BE PREPARED AND THE CASE RETURNED TO THE CLERK. THE CLERK THEN ROUTES THE CASE TO 1 OF THE COURT'S JUDGES, SELECTED IN ROTATION. IF THAT JUDGE AGREES THAT THE CASE DOES NOT WARRANT ORAL ARGUMENT, THE BRIEFS, TOGETHER WITH A PROPOSED OPINION, ARE FORWARDED TO THE 2 OTHER JUDGES ON THE SCREENING PANEL. IF ANY PARTY REQUESTS ORAL ARGUMENT, ALL PANEL JUDGES MUST CONCUR THAT THE CASE DOES NOT WARRANT ORAL ARGUMENT, AND ALSO IN THE PANEL OPINION AS A PROPER DISPOSITION WITHOUT ANY SPECIAL CONCURRENCE OR DISSENT. IF NO PARTY REQUESTS ORAL ARGUMENT, ALL PANEL JUDGES MUST CONCUR THAT THE CASE DOES NOT WARRANT ORAL ARGUMENT. HOWEVER, ABSENT A PARTY'S REQUEST FOR ORAL ARGUMENT, SUMMARY DISPOSITION MAY INCLUDE A CONCURRENCE OR A DISSENT BY PANEL MEMBERS.

(B) IF THE STAFF ATTORNEY CONCLUDES THAT ORAL ARGUMENT IS REQUIRED, THE CASE IS SENT TO AN ACTIVE JUDGE FOR SCREENING. IF THE SCREENING JUDGE AGREES, THE CASE IS PLACED ON THE NEXT APPROPRIATE CALENDAR, CONSISTENT WITH THE COURT'S CALENDARING PRIORITIES. IF THE SCREENING JUDGE DISAGREES WITH THE RECOMMENDATION FOR ORAL ARGUMENT, THAT JUDGE’S SCREENING PANEL DISPOSES OF THE CASE UNDER THE SUMMARY CALENDAR PROCEDURE.

DECISION WITHOUT ORAL ARGUMENT - WHEN ALL PANEL MEMBERS AGREE THAT ORAL ARGUMENT OF A CASE IS NOT NEEDED, THEY ADVISE THE CLERK THE CASE HAS BEEN PLACED ON THE SUMMARY CALENDAR. THE COURT’S DECISION USUALLY ACCOMPANIES THE NOTICE TO THE CLERK.

COURT YEAR SCHEDULE - THE CLERK PREPARES A PROPOSED COURT SCHEDULE FOR AN ENTIRE YEAR WHICH IS APPROVED BY THE SCHEDULING PROCTOR AND CHIEF JUDGE OF THE COURT. THE COURT SCHEDULE DOES NOT CONSIDER WHAT SPECIFIC CASES ARE TO BE HEARD, BUT ONLY SETS THE WEEKS OF COURT IN RELATION TO THE PROBABLE VOLUME OF CASES AND JUDGE POWER AVAILABILITY FOR THE YEAR.

JUDGE ASSIGNMENTS

PANEL SELECTION PROCEDURE - BASED ON THE NUMBER OF WEEKS EACH ACTIVE JUDGE SITS AND THE NUMBER OF SITTINGS AVAILABLE FROM THE COURT'S SENIOR JUDGES, AND VISITING CIRCUIT OR DISTRICT JUDGES, THE SCHEDULING PROCTOR AND CLERK CREATE PANELS OF JUDGES FOR THE SESSIONS OF THE COURT FOR THE ENTIRE COURT YEAR. THE JUDGES ARE SCHEDULED TO AVOID REPETITIVE SCHEDULING OF PANELS COMPOSED OF THE SAME MEMBERS.

SEPARATION OF ASSIGNMENT OF JUDGES AND CALENDARING OF CASES - THE JUDGE ASSIGNMENTS ARE MADE AVAILABLE ONLY TO THE JUDGES FOR THEIR ADVANCE PLANNING OF THEIR WORKLOAD FOR THE FORTHCOMING COURT YEAR. TO ENSURE COMPLETE OBJECTIVITY IN THE ASSIGNMENT OF JUDGES AND THE CALENDARING OF CASES, THE TWO FUNCTIONS OF (1) JUDGE ASSIGNMENTS TO PANELS AND (2) CALENDARING OF CASES ARE CAREFULLY SEPARATED.

PREPARATION AND PUBLISHING CALENDARS

GENERAL - THE CLERK PREPARES CALENDARS OF CASES UNDER CALENDARING GUIDELINES ESTABLISHED BY THE COURT. CALENDARS ARE PREPARED FOR THE NUMBER OF SESSIONS (USUALLY BETWEEN 3 AND 5) SCHEDULED FOR A MONTH. INFORMATION ABOUT THE NAMES OF THE PANEL MEMBERS IS NOT DISCLOSED WITHIN THE CLERK'S OFFICE UNTIL THE CALENDARS OF CASES FOR THE MONTH ARE ACTUALLY PREPARED SO THAT BRIEFS AND OTHER MATERIALS CAN BE DISTRIBUTED.

CALENDARING BY CASE TYPE - THE CLERK BALANCES THE CALENDARS BY DIVIDING THE CASES EVENLY AMONG THE PANELS BY CASE TYPE SO THAT EACH PANEL FOR A PARTICULAR MONTH HAS MORE OR LESS AN EQUAL NUMBER OF DIFFERENT TYPES OF LITIGATION FOR CONSIDERATION.

PREFERENCE CASES - THE CATEGORIES OF CASES LISTED IN 5TH CIR. R. 47.7 ARE GIVEN PREFERENCE IN PROCESSING AND DISPOSITION. TO ASSIST THE CLERK IN IMPLEMENTING THIS RULE, ANY PARTY TO A CIVIL APPEAL OR REVIEW PROCEEDING REQUIRING PRIORITY STATUS SHOULD NOTIFY THE CLERK AND CITE THE STATUTORY SUPPORT FOR THE PREFERENCE.

NON-PREFERENCE CASES - ALL OTHER CASES ARE CALENDARED FOR HEARING IN ACCORDANCE WITH THE COURT'S "FIRST-IN FIRST-OUT" RULE. UNLESS THE COURT ASSIGNS SPECIAL PRIORITY THE OLDEST CASES IN POINT OF TIME OF AVAILABILITY OF BRIEFS ARE ORDINARILY CALENDARED FIRST FOR HEARING.

CALENDARING FOR CONVENIENCE OF COUNSEL - FOR THE NEW ORLEANS SESSIONS, CASES WITH NON-LOCAL LAWYERS ARE SCHEDULED IN THE FIRST POSITIONS ON THE CALENDAR WHENEVER POSSIBLE FOR THEIR CONVENIENCE IN MAKING DEPARTURE ACCOMMODATIONS.

NUMBER OF CASES ASSIGNED - UNLESS SPECIAL PROVISION IS MADE, A REGULAR SESSION OF A PANEL OF THE COURT WILL HEAR 5 CASES PER DAY FOR 4 DAYS, MONDAY THROUGH THURSDAY.

ADVANCE NOTICE - THE COURT SEEKS TO GIVE COUNSEL 60 DAYS ADVANCE NOTICE OF CASES SET FOR ORAL ARGUMENT.

FORWARDING BRIEFS TO JUDGES - IMMEDIATELY AFTER FORMALLY ISSUING THE CALENDAR THE CLERK SENDS THE PANEL MEMBERS COPIES OF THE BRIEFS FOR THE CASES SET ON THE CALENDAR.

PRE-ARGUMENT PREPARATION - THE JUDGES INVARIABLY READ ALL BRIEFS PRIOR TO ORAL ARGUMENT.

IDENTITY OF PANEL - THE CLERK MAY NOT DISCLOSE THE NAMES OF THE PANEL MEMBERS FOR A PARTICULAR SESSION UNTIL 1 WEEK IN ADVANCE OF THE SESSION.

ORAL ARGUMENT

PRESENTING ARGUMENT - COUNSEL SHOULD PREPARE THEIR ORAL ARGUMENTS KNOWING THE JUDGES HAVE ALREADY STUDIED THE BRIEFS. READING FROM BRIEFS, DECISIONS, OR THE RECORD IS NOT PERMITTED EXCEPT IN UNUSUAL CIRCUMSTANCES. COUNSEL SHOULD BE PREPARED TO ANSWER THE COURT’S QUESTIONS. THE COURT WILL CONSIDER A MOTION TO EXTEND THE TIME ALLOTTED FOR ARGUMENT IF THE COURT’S QUESTIONS PREVENT COMPLETION OF COUNSEL'S ARGUMENT.

LIGHTING SIGNAL PROCEDURE - THE COURTROOM DEPUTY WILL KEEP TRACK OF THE TIME USING LIGHTING SIGNALS:

(A) APPELLANT'S ARGUMENT - A GREEN LIGHT SIGNALS THE BEGINNING OF THE OPENING ARGUMENT OF APPELLANT. TWO MINUTES BEFORE EXPIRATION OF THE TIME ALLOWED FOR OPENING ARGUMENT, THE GREEN LIGHT GOES OFF AND A YELLOW LIGHT COMES ON. WHEN THE TIME RESERVED FOR OPENING ARGUMENT EXPIRES, THE YELLOW LIGHT GOES OFF AND A RED LIGHT COMES ON. IF COUNSEL PROCEEDS AFTER THE RED LIGHT, TIME WILL BE DEDUCTED FROM THE REBUTTAL PERIOD.

(B) APPELLEE'S ARGUMENT - THE SAME PROCEDURE AS OUTLINED ABOVE IS USED.

(C) APPELLANT'S REBUTTAL - A GREEN LIGHT SIGNALS COMMENCEMENT OF TIME; A RED LIGHT COMES ON WHEN TIME EXPIRES. NO YELLOW LIGHT IS USED.

CASE CONFERENCES AND DESIGNATION OF WRITING JUDGE - THE PANEL HEARING THE ARGUMENTS USUALLY CONFERS ON THE CASES AT THE CONCLUSION OF EACH DAY'S ARGUMENTS. A TENTATIVE DECISION IS REACHED AND THE PRESIDING JUDGE ASSIGNS RESPONSIBILITY FOR OPINION WRITING. THERE IS NO PRE-ARGUMENT ASSIGNMENT OF OPINION WRITING. JUDGES DO NOT SPECIALIZE. ASSIGNMENTS ARE MADE TO EQUALIZE THE WORKLOAD OF THE ENTIRE SESSION.