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In July the 7th Circuit Court of Appeals adopted modifications to Circuit Rules 31 34, 40, 47 and 60. Circuit Rule 34 addresses oral arguments, which historically are set in all cases in which parties are represented by counsel.
Several important changes with practical ramifications for counsel have been made to this rule.
First, to accommodate counsel, Rule 34(b)(2) still provides, “Consideration will be given to requests addressed to the clerk by out-of-town counsel to schedule more than one appeal for oral argument the same day in order to minimize travel time and expenses.”
Rule 34(b)(3) continues to provide, “Requests by counsel, made in advance of the scheduling of an appeal for oral argument, that the court avoid scheduling the oral argument for a particular day or week will be respected, if possible.” Rule 34(b)(4) remains unchanged, reading, “Once an appeal has been scheduled for oral argument, the court will not ordinarily reschedule it.”
The process and timing for notifying the court of counsel scheduling issues prior to argument being set has been significantly modified. It now provides as follows: “Requests under subparagraphs (2) and (3) of this paragraph must be submitted by letter filed electronically with the clerk’s office and should be made by no later than seven days after the filing of the appellee’s brief.
Counsel must specify the dates and reasons why counsel is unavailable, and counsel’s signature serves as an averment of the accuracy of those statements.
The court may choose not to accommodate unavailability requests made more than seven days after the filing of the appellee’s brief. Any request for rescheduling of oral argument must be made by formal motion in accordance with Circuit Rule 34(e).”
This changes prior practice with a new date certain deadline – seven days from appellee’s brief – for providing counsel scheduling information to the clerk. The rule change also requires that the letter be electronically filed with the clerk.
Second, Circuit Rule 34(d) is amended to allow counsel to ask for oral arguments to be conducted remotely by phone or video rather than in person.
This is a significant development, as historically prior to the COVID-19 Pandemic the court almost always conducted oral arguments in person.
The amended provision reads:
“Any request for waiver, postponement or remote presentation of a scheduled oral argument must be made by formal motion. Unless good cause is shown, no later than 14 days before the argument date and after conferring with opposing counsel, a party may file a motion to waive, postpone or present oral argument by telephonic or video-communications platforms approved by the court. The motion shall: (1) state the reason for the request; (2) indicate whether the request is opposed or unopposed; (3) if seeking postponement, state why postponement is necessary instead of oral argument by telephonic or video communications or by other counsel of record; and (4) if requesting to present oral argument by telephonic or video communications, identify which counsel wish to appear remotely. The court prefers joint motions. Postponements will be granted only in extraordinary circumstances. Any motion for the waiver, postponement, or remote presentation of a scheduled oral argument made less than 14 days before the argument date must specify the facts that are the basis of the motion that did not exist earlier.”
Third, Rule 34(f) is amended as follows, with the new sentence italicized: Statement Concerning Oral Argument.
A party may include, as part of a principal brief, a short statement explaining why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P. 34(a). This statement does not operate as a waiver of oral argument. Any request for waiver of oral argument must be made by formal motion in accordance with Circuit Rule 34(e).”
Finally, Rule 34(g) is amended to now read as follows: “Citation of Authorities at Oral Argument. Counsel should not cite or discuss a case at oral argument unless the case has been cited in one of the briefs or promptly drawn to the attention of the court and opposing counsel by a filing under Fed R. App. P. 28(j).”
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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.
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