Rule 39 Oral Argument; Decision Without Argument

39.1. Right to Oral Argument A party who has filed a brief and who has timely requested oral argument may argue the case to the court unless the court, after examining the briefs, decides that oral argument is unnecessary for any of the following reasons:

(a) the appeal is frivolous;

(b) the dispositive issue or issues have been authoritatively decided;

(c) the facts and legal arguments are adequately presented in the briefs and record; or

(d) the decisional process would not be significantly aided by oral argument. 39.2. Purpose of Argument Oral argument should emphasize and clarify the written arguments in the briefs. Counsel should not merely read from prepared text. Counsel should assume that all members of the court have read the briefs before oral argument and counsel should be prepared to respond to questions. A party should not refer to or comment on matters not involved in or pertaining to what is in the record. 39.3. Time Allowed The court will set the time that will be allowed for argument. Counsel must complete argument in the time allotted and may continue after the expiration of the allotted time only with permission of the court. Counsel is not required to use all the allotted time. The appellant must be allowed to conclude the argument. 39.4. Number of Counsel Generally, only one counsel should argue for each side. Except on leave of court, no more than two counsel on each side may argue. Only one counsel may argue in rebuttal. 39.5. Argument by Amicus With leave of court obtained before the argument and with a party's consent, an amicus curiae may share allotted time with that party. Otherwise, counsel for amicus may not argue. 39.6. When Only One Party Files a Brief If counsel for only one party has filed a brief, the court may allow that party to argue. 39.7. Request A party desiring oral argument must note that request on the front cover of the party’s brief. If the court sets the case for oral argument, then all parties that filed a brief are entitled to participate in the oral argument, even if a party did not request oral argument on the cover of the party’s brief. The court may direct a party that has not requested argument to appear and argue. 39.8. Clerk’s Notice The clerk must send to the parties—at least 21 days before the date the case is set for argument or submission without argument—a notice telling the parties:

(a) whether the court will allow oral argument or will submit the case without argument;

(b) the date of argument or submission without argument;

(c) if argument is allowed:

(1) the time allotted for argument; and

(2) the location of the argument or instructions for joining the argument electronically, the court’s designated contact information, and instructions for submitting exhibits; and

(d) the names of the members of the panel to which the case will be argued or submitted, subject to change by the court. A party’s failure to receive the notice does not prevent a case’s argument or submission on the scheduled date. Once issued, the court may amend the notice at any time before the case is set for argument or submission. The 21-day requirement does not apply to amended notices.