Oral Argument and What It Is Actually For
Most federal appeals are decided without anyone speaking. Where argument is held, it is short, it is dominated by questions, and it serves a purpose that has little to do with persuading anyone through a prepared speech.
The rule in short
Federal Rule of Appellate Procedure 34 provides that oral argument must be allowed in every case unless a panel of three judges unanimously agrees that argument is unnecessary because the appeal is frivolous, the dispositive issue has been authoritatively decided, or the facts and legal arguments are adequately presented in the briefs and the record and the decisional process would not be significantly aided by argument. The court advises the parties of the date and the time allowed.
Oral argument in a federal court of appeals is brief, unscripted in practice, and granted in a minority of cases. Federal Rule of Appellate Procedure 34 makes argument the default but supplies grounds on which a panel may decide the case on the papers. Understanding what the time is actually used for explains both the selection and the format.
The rule and the grounds for dispensing with it
Rule 34(a)(2) provides that oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that argument is unnecessary for one of three reasons: the appeal is frivolous; the dispositive issue or issues have been authoritatively decided; or the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by argument.
The third ground carries almost all the weight. A case that turns on settled law applied to a clear record does not benefit from discussion, and the courts of appeals decide a large share of their docket that way. Rule 34(a)(1) allows any party to file a separate statement explaining why argument should be heard, and circuits also apply local criteria in screening.
Scheduling, time and the order of speaking
The clerk advises the parties of the date, time and place of argument and the time allowed to each side. The court may allot different amounts to different parties, and in a case with multiple appellants or appellees will often require the parties on one side to divide a single allotment. Requests for additional time are made by motion and are usually decided by the panel.
The appellant opens and may reserve part of its time for rebuttal, which the presiding judge will expect to be stated at the outset. The appellee then argues without rebuttal. Where a party has cross-appealed, the order and the allotment follow the cross-appeal rule, and the sequence is often unfamiliar even to experienced counsel.
Rule 34(c) states a rule of conduct that is easy to overlook: counsel must not read at length from briefs, records or authorities. Judges have the briefs, have usually read them, and have prepared questions. Time spent restating the written argument is time the panel cannot use.
The single most common failure at the lectern is deflection. A judge who asks whether the argument survives if a particular fact is assumed against the party wants the answer to that question, not a return to the prepared theme. Saying yes or no first, then explaining, treats the exchange as what it is. Counsel who defer a question to later in the argument frequently never reach it, because the next question arrives and the time runs out.
The function the exchange serves
Argument exists primarily for the judges. Panels use it to test the boundaries of a proposed rule, to find out what a party will concede, to clarify a record that reads ambiguously, and to explore consequences the briefs did not address. In many cases the judges have already formed views, and argument is the moment those views are checked against a live interlocutor.
That purpose explains the questions that appear hostile but are not. A judge inclined to rule for a party will often press that party hardest, because the opinion has to withstand the objection and the author wants to hear the answer. It also explains why hypotheticals are asked: the panel is testing where a rule would take future cases, not the one before it.
The most valuable preparation is therefore not a script but a set of answers. What is the weakest point in the argument, what happens to the rule in the hardest hypothetical, what relief is sought if the primary theory fails, and where in the record is the fact that the panel will ask about. Each of those has a page number, and knowing it is worth more than any prepared passage.
| Feature | Case set for argument | Case submitted on the briefs |
|---|---|---|
| How it is decided | Panel finds argument would aid the process | Unanimous panel agreement under Rule 34(a)(2) |
| Opportunity to answer questions | Direct exchange with the panel | None after briefing closes |
| Ability to correct a misreading | Immediate, if the point arises | Only through a supplemental authority letter |
| Typical disposition | More often a published opinion | More often a short unpublished order |
| Preparation required | Record command and anticipated questions | Complete argument within the brief |
Knowing the record and the pending authorities
Command of the record is what distinguishes useful argument from recitation. A panel asking where an objection was made expects a citation, and the appendix assembled under the rules on the record and how gaps are filled is what makes that possible. Counsel who cannot locate a page will usually be told to file a letter, and the moment is lost.
Where authority has appeared since the briefs, Rule 28(j) supplies the mechanism, and the letter must state the reasons for the citation without argument. Counsel should also be ready for questions about pending cases in the same court, since a panel may hold a case rather than decide an issue another panel is about to resolve.
What follows the exchange
The panel confers, an opinion or order issues, and the case moves toward the mandate. Nothing said at argument changes what was preserved below, and a concession made at the lectern can bind a party in ways a brief would not. Counsel asked to concede a point should say plainly whether the concession is for purposes of the question or without qualification.
If the decision is adverse, the remaining steps are narrow. A panel decision may be challenged through the petitions for rehearing and rehearing en banc, and beyond that lies the discretionary review that a higher court may or may not grant. Neither is a second appeal, and both begin from the record and the arguments already made under the brief requirements governing the original presentation.
Points to carry away
- Argument is the default, but a unanimous panel may dispense with it on stated grounds.
- A party may file a statement explaining why argument should be heard.
- The court sets the time allowed and may allot different amounts to each side.
- Counsel must not read at length from briefs, records or authorities.
- Supplemental authorities may be brought to the court's attention by a short letter.
- Failure to appear does not forfeit the appeal; the case is decided on the briefs.
Questions readers ask
How does a party ask for argument?
Rule 34(a)(1) allows any party to file, as a separate document, a statement explaining why oral argument should be heard. The statement is short and it addresses the criteria in the rule rather than restating the merits: why the issue is not controlled by settled authority, why the record is complex, or why a question the panel is likely to have cannot be answered adequately in writing. Circuits differ in how they treat these statements, and several also poll the panel independently of any request.
What is rebuttal for and how is it reserved?
Rebuttal is time the appellant sets aside at the start of its argument, typically by telling the presiding judge how many minutes it wishes to reserve. It exists to answer what the appellee said, not to finish an argument that ran out of time. Effective rebuttal is short, addresses one or two points, and concedes what does not matter. Where the appellee said nothing that requires an answer, waiving rebuttal is a legitimate choice and is rarely held against the party who makes it.
May new authority be brought to the panel after briefing closes?
Yes. Rule 28(j) allows a party to file a letter drawing the court's attention to pertinent and significant authorities that come to a party's attention after the brief was filed or after argument but before decision. The letter must state, without argument, the reasons for the supplemental citations, referring to the page of the brief or the point argued to which they relate. The body of the letter is limited in length, and any response is subject to the same limit.
Sources
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 34, Oral ArgumentWhen argument must be allowed, the grounds for dispensing with it, and the conduct of it.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 28, BriefsThe letter procedure for supplemental authorities and the limits placed on it.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 31, Serving and Filing BriefsThe consequence of failing to file a brief, including the loss of argument time.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 30, Appendix to the BriefsThe materials the panel has in front of it during argument.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 41, MandateWhat happens after the decision that follows argument or submission.
- United States Courts — AppealsThe court system's description of argument as a question-driven exchange.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Appellate Practice
The Record on Appeal and How Gaps Are Filled
Federal Rule of Appellate Procedure 10(a) defines the record on appeal as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Rule 10(b) requires the appellant to order a transcript or certify that none will be ordered, and to serve a statement of issues where only part is ordered. Rules 10(c) and 10(d) supply a prepared statement or an agreed statement where no transcript is available.
Rehearing and Rehearing En Banc
Federal Rule of Appellate Procedure 40 allows a petition for panel rehearing stating with particularity each point of law or fact the petitioner believes the court overlooked or misapprehended. Rule 35 governs rehearing en banc, which is not favored and is ordered only where necessary to secure or maintain uniformity of the court's decisions or where the proceeding involves a question of exceptional importance. Rule 41 controls when the mandate issues and how it may be stayed.
Brief Requirements and the Argument Section
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.