Circuit Rule 34: Oral Argument

(a) Notice to Clerk. The names of counsel intending to argue orally shall be furnished to the clerk not later than five business days before the argument.

(b) Calendar.

(1) The calendar for a particular day will generally consist of six appeals scheduled for oral argument at 9:30 a.m. The amount of time allotted for oral argument will be set based on the nature of the case. The clerk will notify counsel of the allocation approximately 21 days before the argument. The types of cases listed below are to be given priority, though the sequence of listing here is not intended to indicate relative priority among the types of cases.

(i) Appeal from an order of confinement after refusal of an immunized witness to testify before the grand jury. (These appeals must be decided within 30 days.) 28 U.S.C. § 1826.

(ii) (Criminal Appeals. Rule 45(b), Fed. R. App. P.

(iii) (Appeals from orders refusing or imposing conditions of release, which will be heard without the necessity of briefs. Rule 9, Fed. R. App. P.

(iv) Appeals involving issues of public importance.

(v) Habeas corpus and 28 U.S.C. § 2255 appeals.

(vi) Appeals from the granting, denying, or modifying of injunctions.

(vii) Petitions for writs of mandamus and prohibition and other extraordinary writs. Rule 21(b) and (c), Fed. R. App. P.

(viii) “Any other action if good cause therefore is shown. For purposes of this subsection, ‘good cause’ is shown if a right under the Constitution of the United States or a Federal Statute (including rights under section 552 of Title 5) would be maintained in a factual context that indicates that a request for expedited consideration has merit.” 28 U.S.C. § 1657.

(2) Consideration will be given to requests addressed to the clerk by out-of-town counsel to schedule more than one appeal for oral argument the same day in order to minimize travel time and expenses.

(3) Requests by counsel, made in advance of the scheduling of an appeal for oral argument, that the court avoid scheduling the oral argument for a particular day or week will be respected, if possible.

(4) Once an appeal has been scheduled for oral argument, the court will not ordinarily reschedule it. Requests under subparagraphs (2) and (3) of this paragraph must be submitted by letter filed electronically with the clerk’s office and should be made by no later than seven days after the filing of the appellee’s brief. Counsel must specify the dates and general reasons why counsel is unavailable in the letter, and counsel’s signature serves as an averment of the accuracy of those statements. The court may choose not to accommodate unavailability requests made more than seven days after the filing of the appellee’s brief. Any request for rescheduling of oral argument must be made by formal motion in accordance with Circuit Rule 34(e).

(c) Divided Argument Not Favored. Divided arguments on behalf of a single party or multiple parties with the same interests are not favored by the court. When such arguments are nevertheless divided or when more than one counsel argues on the same side for parties with differing interests, the time allowed shall be apportioned between such counsel in their own discretion. If counsel are unable to agree, the court will allocate the time.

(d) Preparation. In preparing for oral arguments, counsel should be mindful that this court follows the practice of reading briefs prior to oral argument.

(e) Waiver, Postponement, or Presentation of Oral Argument by Telephonic or Video Communications. Any request for waiver, postponement, or remote presentation of a scheduled oral argument must be made by formal motion. Unless good cause is shown, no later than 14 days before the argument date and after conferring with opposing counsel, a party may file a motion to waive, postpone, or present oral argument by telephonic or video-communications platforms approved by the court. The motion shall: (1) state the reason for the request; (2) indicate whether the request is opposed or unopposed; (3) if seeking postponement, state why postponement is necessary instead of oral argument by telephonic or video communications or by other counsel of record; and (4) if requesting to present oral argument by telephonic or video communications, identify which counsel wish to appear remotely. The court prefers joint motions. Postponements will be granted only in extraordinary circumstances. Any motion for the waiver, postponement, or remote presentation of a scheduled oral argument made less than 14 days before the argument date must specify the facts that are the basis of the motion that did not exist earlier.

(f) Statement Concerning Oral Argument. A party may include, as part of a principal brief, a short statement explaining why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P. 34(a). This statement does not operate as a waiver of oral argument. Any request for waiver of oral argument must be made by formal motion in accordance with Circuit Rule 34(e).

(g) Citation of Authorities at Oral Argument. Counsel should not cite or discuss a case at oral argument unless the case has been cited in one of the briefs or promptly drawn to the attention of the court and opposing counsel by a filing under Fed R. App. P. 28(j).

(h) Argument by Law Student. The court may permit a law student to present oral argument under supervision of a member of this court’s bar, with the client's written approval, if the representation is permitted under the applicable state licensure rules (e.g., Ill. Sup. Ct. R. 711; Ind. Admis. and Disc. R. 2.1; Wis. Sup. Ct. R. 50). The supervising attorney’s motion must be filed at least 14 days before the date on which argument is to be held and must state the reasons why presentation of argument by a law student is appropriate.