Handbook XI.F: Form and Content of Argument

(See Fed. R. App. P. 34; D.C. Cir. Rule 34.)

The appellant or petitioner is entitled to open and conclude the argument. If the case involves a cross-appeal, the first party to file a notice of appeal is deemed the appellant, unless the parties agree or the Court orders otherwise. See Fed. R. App. P. 28.1(b). In cases in which separate time is allotted to a number of parties, the screening order will indicate the order of presentation of argument to be followed by those parties.

The opening argument should include a brief introductory statement of the case and the issues presented. Counsel may not read from a prepared text, nor should counsel read at length from briefs, records, or authorities. See Fed. R. App. P. 34(c); D.C. Cir. Rule 34(a). Counsel should be prepared to answer questions from the bench, and attorneys on the same side should take care not to duplicate their arguments.

If counsel wishes to use any exhibits in the courtroom, counsel must make arrangements with the Clerk's Office and advise the Court and all other counsel by letter at least 7 days prior to the argument. The letter must set forth the justification for the use of the exhibits. After the argument, counsel should remove the exhibits, unless directed otherwise by the panel. See D.C. Cir. Rule 34(I).

In this Circuit, the judges will always have read the briefs prior to the hearing. Counsel should keep this in mind when preparing and presenting argument.

Argument for the day usually begins at 9:30 a.m. As a general rule, the panel will hear all cases scheduled for that day, even if it is necessary to recess for lunch and reconvene.