How to request oral argument in a federal appeal

A brief in a U.S. Fifth Circuit appeal must include a statement regarding oral argument. The appellant’s brief must include either a waiver of oral argument or a request for oral argument with reasons supporting the request. The appellee’s brief must include a statement why oral argument is or is not needed.¹

I find these statements challenging to write, especially from the appellant’s side. The challenge is to make the statement persuasive without making it overtly argumentative. By “persuasive,” I mean not only persuading the court to grant or dispense with oral argument, but also beginning the task of persuading the court to decide the appeal in my client’s favor—and doing that without the kind of argument that would be inappropriate in this part of the brief.

Today I came across an idea for doing that when representing an appellant and requesting oral argument. The idea comes from the Federal Court of Appeals Manual by David G. Knibb (4th ed.), chapter 32. In it, Knibb offers this form for a motion to restore oral argument after the appellate panel has disallowed oral argument:

Plaintiff-Appellant moves pursuant to F.R.A.P. Rule 34(a) to restore this case to the argument calendar. This case meets the standards in Rule 34(a)(2) for oral argument, in that (a) this appeal is not frivolous, (b) the dispositive issues raised in this appeal have not been recently and authoritatively decided, and (c) as described in the accompanying memorandum, the decisional process would be significantly aided by oral argument.²

Actually Fed. R. App. P. 34(a)(2) lists criteria for disallowing oral argument, but the criteria can be applied in reverse to support allowance of oral argument.

On doing further research, I learned that the federal appellate courts expect lawyers to refer to Rule 34(a)(2) in writing a statement regarding oral argument. For example, Seventh Circuit Rule 34(f) allows “a short statement explaining why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P. 34(a).” And Fifth Circuit Rule 28.2.3 (requiring the statement regarding oral argument) includes a cross-reference to Fed. R. App. P. 34.

So when writing a brief’s statement regarding oral argument, use Rule 34(a)(2) as a framework, offering just a few sentences elaborating on each of the three criteria. Doing that will give the court a taste of the argument to come. Doing that on the first criterion (the appeal is or is not frivolous) will begin the task of persuading the court to rule in your client’s favor.

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¹ 5th Cir. R. 28.2.3.

² David G. Knibb, Federal Court of Appeals Manual 608 (4th ed., West Group 2000).

Comments

[Alan Mills]

I have found it useful to cite to recent authority which I contend favors my side, but which does not squarely address the issue--and then explain why this case takes the earlier case one step further. That has the advantage of keying the court into the key case law early on in the brief, without actually arguing (which I agree would be inappropriate at that point in the brief.

[Ray]

Good idea, Alan. Hits the sweet spot between relying on established caselaw (usually needed to win) and novelty (helpful for getting oral argument).

[Nick]

A few months late, but thanks for this post. I'm always stumped at the best way to request oral argument.

[George E. Bourguignon, Jr.]

This posting hit the spot, as I draft an appellate brief. Yes, it is a difficult task. Great to provide the rule.