(a) Request for Oral Argument.
(1) Oral argument generally will be scheduled unless:
(A) a party has failed to file a timely brief;
(B) a party has challenged the sufficiency of the findings of fact or the adequacy of the evidence supporting a finding of fact but has failed to provide the court with the related transcripts;
(C) no request for oral argument has been made by any party as required by Rule 28(h);
(D) the parties have agreed to waive oral argument; or
(E) the court, in the exercise of its discretion, determines oral argument is unnecessary.
(2) Notice. The clerk of the supreme court must advise all parties whether oral argument will be scheduled and, if so, the date, time, and place for argument.
(3) Participation in Oral Argument. If oral argument is scheduled, a party that did not request oral argument in a principal brief must provide notice of an intent to participate. The notice must be served and filed within five days of service of the notice of oral argument under this rule.
(b) Time Allowed for Argument; Postponement. Regardless of the number of counsel on each side, the appellant will be allowed 30 minutes and the appellee will be allowed 20 minutes to present argument. The appellant may reserve up to 10 minutes for rebuttal by notifying the clerk of court immediately prior to argument. Arguments on motions will be granted only in extraordinary circumstances. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. A party is not obliged to use all of the time allowed, and the court may terminate the argument at any time.
(c) Order and Content of Argument. The appellant opens and may reserve time to conclude the argument. The opening argument may include a fair statement of the case. Counsel must not read at length from briefs, records, or authorities.
(d) Cross-Appeals and Separate Appeals. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Parties should not duplicate arguments.
(e) Nonappearance of a Party. If oral argument is scheduled and the appellee fails to appear, the court must hear appellant's argument. If the appellant fails to appear the court may hear the appellee's argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.
(f) Submission on Briefs. If no oral argument is scheduled under Rule 34(a)(1), the case will be submitted to the court on the briefs, unless the court directs otherwise.
Under subdivision (b), in the case of multiple appellants or appellees, each side must divide the time accorded unless additional time has been requested and granted. The omission of subdivision (g) of the Federal Rule is not intended to prevent the use of any exhibits at oral argument.
Rule 34 was revised, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 34. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (a) was amended, effective March 1, 2003, to make clear that the court has discretion to determine whether oral argument should or should not be permitted.
Subdivision (a) was amended, effective March 1, 2019, to outline when oral argument will or will not be scheduled.
Subdivision (a) was amended, effective August 1, 2021, to clarify the steps that a party that did not make an initial request for oral argument must take before being allowed to participate in oral argument.
Subdivision (b) was amended, effective August 1, 2021, to allow the appellant to reserve up to 10 minutes for rebuttal by notifying the clerk of court immediately prior to argument.
Rule 34 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of January 28, 2021, pages 10-13; January 30, 2020, pages 25-27; April 25-26, 2002, pages 12-13; January 24-25, 2002, pages 19-21; September 28-29, 1995, page 13; January 28-29, 1993, page 11; February 19-20, 1987, page 8; September 18-19, 1986, pages 20-21; April 26, 1984, page 30; January 12-13, 1978, pages 22-23. Fed.R.App.P. 34.
Superseded: N.D.C.C. §§ 28-31-04, 28-31-05, 29-28-23, 29-28-24, and 29-28-25.
CROSS REFERENCE: N.D.R.App.P. 28 (Briefs).