In this post, I discuss the place of oral arguments in Arkansas appellate practice, including when they may occur and when they may not.
Oral arguments serve as the face of appellate practice in popular culture. The idea of attorneys arguing before a panel of judges captures the minds of the public, sometimes in ways that even actual trials cannot. As the US Supreme Court has taken on a more visible role—most notably during the infamous Warren Court—this has become even more true.
Oral arguments, however, are a very small part of the appellate process. In Arkansas particularly they are often of little consequence, frequently being unrequired or even waived. Understanding their rules and process, however, is nevertheless important.
Written Request Required
In Arkansas, oral arguments are not an automatic part of an appeal. A party to the appeal must make a request for such in-person arguments by filing with their brief a separate letter making the request.
The court will generally grant such a request, unless any of the following are true:
- The appeal is frivolous.
- The dispositive issue has already been authoritatively decided.
- The briefs and records adequately present the facts and legal arguments so that oral arguments would not significantly help the court make a decision.
The court may also select a case for oral arguments if it believes the issues in the case make such arguments necessary, even if no party requests them.
Oral Arguments Date Fixed
The Clerk of the Court will notify the parties to the appeal of the date scheduled for oral arguments, or, if there will be no such arguments, that the case will be submitted on briefs only. The date set for arguments may only then be charged upon written motion to the court showing good cause.
If scheduling such arguments would result in an undue delay in the decision of the case, however, the court may simply decide to forego them.
Interestingly enough, an attorney for a party to the appeal that has not requested oral arguments is not required to appear at the arguments, so long as that party gives the clerk at least five days notice. Failure to provide such a notice, however, can subject the attorney to sanctions.
Counsel and Time Limitations
During the arguments, two attorneys from each side may speak, and neither side’s time may exceed twenty minutes without permission of the court granted prior to the argument. Applications for additional time must be made by written motion and submitted at least one week before the case is scheduled for submission. The motion must provide reasons why additional time is necessary, and the court is under no obligation to grant the request.
Presentation of Oral Arguments
During oral arguments, counsel may not read from books, briefs, or records, except for short extracts necessary to emphasize a point.
In addition, counsel should not simply read authorities. After all, the court already has the briefs. Oral arguments are a time to state the substance of the argument, not provide citations. If, however, counsel intends to cite authority outside the brief, the citation must be provided to the court and opposing counsel prior to the date of arguments.
Finally, etiquette is key. An appeal is not a political debate. Counsel may not interrupt opposing counsel during the arguments.
Petitions for Rehearing
After an appeal has been heard, the parties may file a petition for rehearing. Oral arguments are not permitted for these petitions.