Obsolete Date: 10/1/2014
(a) In General.
(1) Party's Statement. Any party may file, or the court may require, a statement explaining why oral argument should, or need not, be permitted.
(2) Standards. Oral argument may be denied if a party fails to file a brief or if the court, upon examination of the briefs and record, decides that oral argument is unnecessary.
(3) Notice. The supreme court clerk must advise all parties whether oral argument will be scheduled and, if so, the date, time, and place for argument.
(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. 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 the appellee fails to appear for argument, 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. 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).