Chapter 13 Oral Argument

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 13 ORAL ARGUMENT
Judge D.P. Marshall Jr. and Brian G. Brooks

A. Introduction

You threaded your case through the eye of ARAP-Civ 4 by filing a timely notice of appeal. You filed your record on time. You abstracted the transcripts in the record necessary for the court to understand the questions on appeal. You included the key pleadings, papers, orders, exhibits, and your notice of appeal in your addendum. You wrote a brief that sings while it marches. If oral argument is set, then you must prepare for your conversation with our Supreme Court or Court of Appeals. Here are the particulars.

B. Thoughts on the Rule

1. How Do I Request Oral Argument?

ASCR Rule 5-1 governs oral arguments. Oral argument is not automatic. One of the parties must request it or the appellate court may set it on its own motion and at its own discretion. A party's request must come in a certain way: you must ask for oral argument in a letter to the Clerk of the Supreme Court and Court of Appeals. That letter must be a stand-alone letter that is separate from any brief or transmittal letter. ASCR 5-1(a). The clerk will file your letter. If you request oral argument only in your brief, then the clerk will disregard your request.

The rule says you send the letter "contemporaneously" with your initial brief or your reply brief, which is the best practice (following an applicable rule tends to be). ASCR 5-1(a). In actual practice, however, the request may be made at any time before briefing is complete. ASCR 5-1(a). The letter should be as simple as "Appellant [or Appellee] requests oral argument." If you miss the deadline, all is not lost. File a motion requesting oral argument.

Do not depend on the opposing party's oral-argument request. If you want oral argument, then send your letter to the clerk or file your motion. The other party's request may not be timely or in proper form. Moreover, the party requesting oral argument is the master of that request and can withdraw the request up to the time oral argument is scheduled. If you want oral argument, therefore, do not risk your opportunity on the other side changing its mind and deciding to submit the case on the briefs.

2. Will the Court Grant Oral Argument?

Not necessarily. Rule 5-1(a) creates three classes of cases where the Supreme Court and Court of Appeals will deny an oral-argument request: (1) frivolous appeals; (2) appeals where the dispositive issues have already been decided authoritatively; and (3) appeals where the briefs and record adequately present the issues. ASCR 5-1(a)(1)-(3). In general, the Supreme Court and Court of Appeals grant oral argument sparingly. Do not read anything into a denial or a grant of the request. Neither signifies anything about how the case may ultimately be decided.

3. Should I Request Oral Argument?

The answer is generally yes. Oral argument shines light on the most important issues in the case. You, through your presentation, and the judges, through their questions, have an opportunity to home in on what the case is really about. Oral argument also allows you to hear from the judges, by way of their questions, exactly what concerns them about the case so that you can address those concerns immediately. Oral argument is the only time you can have that conversation with the deciding judges.

An appellant, in particular, should not miss the opportunity to talk to the court about the case, and focus the judges on the essential facts and errors of law in the record. Nothing can take the place of a conversation with the judges about why the circuit court's judgment should be reversed. If your brief did its job, then that conversation will solidify the appellate court's inclination to rule with you. If the facts are murky, oral argument is your last chance to clarify them. Therefore, unless all these benefits are outweighed by costs that vary from case to case — such as the financial burden on your client of you presenting oral argument in Little Rock, or the harm to your client from any delay in disposition caused by the request for oral argument—the appellant should not forgo this last chance to plead its case.

If you are the appellee and believe the appellant will not request oral argument, your decision is harder...

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