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Oral Arguments

Oral arguments are presented to support and clarify the written argument in a legal dispute.  Oral arguments can also occur during motion practice when one of the parties presents a motion to the court for consideration before trial, such as when summary judgment may lie because there are no factual issues in dispute.  An oral argument involves each party in a case taking turns to speak directly to the judge.  Each party is allotted an equal amount of time.

An oral argument is not always considered an essential part of due process since written briefs  provide parties an opportunity to present their case before the court.  Whether a court will permit, require, or guarantee the opportunity to present oral argument is usually left up to each court to decide as part of its rules of procedure, with differences from court to court even within a single jurisdiction.

The purpose of oral argument is to emphasize and clarify the written arguments in the briefs on the merits and is limited to facts in the record.  Courts does not favor  oral argument read from a prepared text, and, in Federal Courts of Appeals, counsel are not permitted to read at length from briefs, records, or authorities.  The party requesting oral argument has a duty to prepare to fully argue the points raised on appeal[i].

The Federal Rules of Appellate Procedure stipulate that oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary[ii].  “Permissible reasons for such a determination are that (1) the appeal is frivolous, (2) the dispositive issue or set of issues has been recently and authoritatively decided, or (3) the facts and legal arguments are adequately presented in the briefs and record and the court’s decisional process would not be significantly aided by oral argument” [iii].  Oral argument is generally open to the public.

[i] Dycus v. Cross, 869 S.W.2d 745 (Mo. 1994)

[ii] Fed. R. App. P. 34(a)(2)

[iii] Id.

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