Obsolete Date: 3/1/2003
(a) Notice of Argument; Postponement. The clerk shall inform all parties of the time and place at which oral argument will be heard. Postponement of oral argument may be granted, on motion, for good cause.
(b) Time Allowed for Argument. 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. Arguments on motions will be granted only in extraordinary circumstances. Additional time may be granted upon written request at the time of filing the requesting party's last brief. 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 is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records, or authorities.
(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If separate appellants or appellees support the same argument, care shall be taken to avoid duplication of argument.
(e) Non-appearance of Parties. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If the parties to the appeal fail to appear, the case will be decided on the briefs unless the court orders otherwise.
(f) Submission on Briefs. Any party may submit its argument on the briefs, but the court may direct that the case be argued.
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).