Should an argument be divided between two lawyers?

• Jurisdiction: United States

Section 115. Should an argument be divided between two lawyers?—Very frequently, counsel decide among themselves to divide the oral argument, either because they feel that the cause is too complex to be effectively grasped and conveyed by only a single advocate, or else—more frequently—because participation in the argument is viewed as a reward to be shared. It is not unusual for the lawyer who retains appellate counsel to insist, more or less strongly, upon keeping a part of the argument for himself by way of intangible forwarding fee.

First, if the lawyers concerned make such an arrangment, can it be effectuated?

Some courts prohibit a divided argument. A case on the Supreme Court's summary calendar must be argued by a single lawyer, "except by special permission, which will be granted only upon a showing that parties with differing interests are on the same side."¹ Two circuits permit only a single lawyer to argue in any case except by special permission requested in advance,² two more permit only a single lawyer to appear when the adverse party is unrepresented.³ Other courts restrict the number of counsel to two,⁴ sometimes indicating that more may appear by special leave.⁵

In the Supreme Court, in cases on the regular calendar, "Two counsel, and no more, will be heard for each side, except by special permission when there are several parties on the same side."⁶ Before the adoption of that rule...