H. Hearing of Appeals
Rule 35. Conduct of Oral Argument
(a) Request; Waiver. Any party to an appeal who desires oral argument shall so request by stating at the bottom of the cover page of the party’s brief that oral argument is requested. If any party to an appeal requests oral argument it is unnecessary for any other party to do so except as otherwise provided in this subdivision. No party may argue unless the party has filed a brief as required by these rules. A party who has requested oral argument and who thereafter determines to waive oral argument shall notify the clerk of the appellate court and all other parties. Any other party who has not previously requested oral argument may then request oral argument by notifying the clerk of the appellate court and all other parties.
(b) Notice of Argument; Postponement. The clerk of the appellate court shall give the parties advance notice of the time and place a case is to be argued and the amount of time for oral argument. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing.
(c) Time Allowed for Argument. Unless the appellate court otherwise orders, each side requesting the same relief shall be allowed 30 minutes for argument. If a party is of the opinion that additional time is necessary for the adequate presentation of the case, the party may request additional time by motion filed reasonably in advance of the date fixed for hearing. A party is not obligated to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary.
(d) Order; Reading Prohibited. The party initiating review of the judgment below is entitled to open and conclude the argument. Reading at length from the record, briefs or authorities cited will not be permitted.
(e) Multiple Parties Requesting Relief. If more than one party is requesting relief from the judgment, the sequence of oral argument shall be as the parties agree or the appellate court otherwise directs.
(f) Divided Argument. No more than two counsel or parties will be heard from each side requesting the same relief except by leave of the appellate court, which will be granted when there are parties on the same side with diverse interests. Divided arguments are not favored and care shall be taken to avoid duplication of arguments.
(g) Nonappearance of Parties. If a party fails to appear for argument, the appellate court will hear argument on behalf of the parties present. If no party appears, the case will be decided upon the record and briefs unless the court shall otherwise order. If the party who requested oral argument fails to appear to present argument, the court may assess against that party the reasonable costs incurred by the party who does appear for argument. In its discretion, the court may include a reasonable attorney’s fee as a part of such costs.
(h) When Oral Argument Not Requested. If no party requests oral argument, the clerk, when the briefs from all the parties are filed, shall submit the case for decision on the record and briefs. If no party has requested oral argument, the appellate court may nevertheless direct that the case be argued.
Advisory Commission Comments
Under subdivision (a) a party to an appeal desiring oral argument must request argument. If a party inadvertently fails to request oral argument, the appellate court may relieve the party of this omission.
The rule allows 30 minutes for each side to argue a case on appeal. As the Advisory Committee note to Federal Rule of Appellate Procedure 35 points out, “[t]he term ‘side’ is used to indicate that the time allowed by the rule is afforded to opposing interests rather than to individual parties. Thus if multiple appellants or appellees have a common interest, they constitute only a single side. If counsel for multiple parties who constitute a single side feel that additional time is necessary, they may request it.” It is in the spirit of this rule that the appellate court grant additional time if there is a reasonable basis for the requested additional time.
Subdivision (g) of this rule also provides that a party who appears for oral argument shall be heard even if the opponent does not appear. Sanctions are provided for failure of a party to appear when that party has requested oral argument. In the discretion of the appellate court, such a sanction may include the reasonable attorney’s fees of the party who did appear.
