Second Circuit Now Requires Parties Jointly To Affirmatively Request Oral Argument

The Second Circuit Court of Appeals has adopted an interim rule, effective August 27, 2007, that imposes a new, ‘opt-in’ procedure for oral argument. It does not appear that any other circuit has adopted such a requirement.

Under Fed.R.Civ.App. 34, oral argument is required unless the court finds that certain conditions are satisfied such that oral argument can be dispensed with and the case decided solely on the briefs. The Rule also specifies that a court “may require by local rule a statement explaining why oral argument should, or need not, be permitted.”

In a new twist on that rule, the Second Circuit’s Interim Local Rule 34 requires the parties to file a joint statement indicating whether they seek oral argument or agree to submit the case on the briefs. If the parties disagree, that must also be indicated. The joint statement is due within 14 days after the due date for the last brief. Any party failing to file the statement will be deemed not to seek oral argument.

The court allowed a one-month comment period, which expires September 27, 2007, and is running simultaneously with the adoption of the rule itself. There does not seem to have been much publicity about this, and because it is a unique and counter-intuitive change (going from an opt-out system to an opt-in system), the new rule seems like a trap for the unwary.