Clerk's Guide - Oral Arguments
This guide is designed to assist attorneys and self-represented litigants preparing cases for argument before this Court, especially those who have not previously argued here. It is not a substitute for the Massachusetts Rules of Appellate Procedure.
The Appeals Court hears oral arguments the first three weeks of every month from September through June. Court sessions are held in Courtrooms 3 and 4 on the third floor of the John Adams Courthouse and are open to the public. Sessions begin promptly at 9:30 a.m., unless otherwise indicated on the Notice of argument, and conclude at approximately 1:00 p.m. Oral arguments for each case generally take about one half hour (fifteen minutes per side). Where there are multiple parties on each side, the parties designate one party to argue on behalf of all parties or the fifteen minutes is divided between the parties on each side.
Approximately 95 cases are scheduled for oral argument each month. An additional 50 to 60 cases are considered each month without oral argument. The court calendar is posted for each month on-line.
Cases are generally called in the order in which they are listed on the monitor outside the courtroom. If you are interested in viewing a particular case, you may contact the Clerk for the Appeals Court to determine approximately when it will be heard.
Participants in the Courtroom
Justices: The Justices enter the Courtroom through the door behind the bench. They sit on the bench in order of seniority with the Associate Justice who is acting as Presiding Justice of the three-justice panel in the middle, and the most junior Associate Justice on the far right, as you face the bench.
Clerk: A Session Clerk sits to the lower left of the Bench. The Session Clerk's responsibilities in the courtroom include providing the Justices with materials about the cases, ensuring that attorneys scheduled to argue cases are signed in and present in the courtroom, running the time clock, and recording the arguments.
Law Clerks: Each Justice employs a law clerk, who are law school graduates, to assist with legal research. The law clerks are often present in the courtroom to listen to the oral arguments.
Court Officers: The Court Officers sit in the designated court officer's boxes in the courtroom. Usually there are two Court Officers present in the courtroom during regular sessions. The Court Officer's role is to call the Court to order, maintain decorum in the courtroom, and assist in seating of counsel and spectators, as well as distributing appearance sheets to parties who are arguing cases. Those appearance sheets are then given to the Clerk assigned to the session.
How a Case is Placed on the List for Argument
Notice and Order of Argument: What are Counsel's obligations and options? Oral arguments are normally conducted during the months of September through June. The Court sits during the first three weeks of the month. As early as one month before the scheduled argument date, the Clerk's Office will send a Notice of Argument by regular U.S. mail. Counsel of record who have properly registered to receive e-mail notice will be sent only an e-notice of the oral argument; counsel will not receive a hard copy by U.S. mail. Self-represented litigants who have properly registered to receive e-mail notice will receive an e-notice and a hard copy by U.S. Mail of the oral argument. The Notice of Argument requires that the recipient file a reply in writing that specifies the name of the attorney or self represented litigant who will present oral argument for a specific party. All such replies must be filed promptly with the Clerk's Office by mail or hand delivery. An attorney or self-represented litigant who received an e-mail notification of the oral argument can satisfy this requirement by responding by e-mail.
All counsel and self-represented litigants who are not already signed up for e-mail notification can register by sending an e-mail containing their name, BBO number (if applicable), and e-mail address to: email@example.com
The e-notice registration will be applied to all pending and future appeals entered in the Appeals Court. There is no need to register separately for each appeal, nor to re-register if you have previously registered. To change your e-mail address to a new address, you must send a new e-mail that contains the new address and the information referenced above. Only one e-mail address per recipient can be used at a time.
There will be no continuances granted except for grave cause. Approximately three to four months prior to the Notice, the online docket will reflect the case being placed in "ready status." Once the case is placed in ready status, the Clerk should be notified of any circumstances in the upcoming five months that would constitute "grave cause" for a continuance, such as pre-arranged medical procedures or pre-paid vacations. To the extent possible, the Clerk will endeavor to schedule the oral argument to avoid conflicts. Once the Notice issues, conflicts that would qualify as "grave cause" for a continuance should be called to the Clerk's attention by motion, with a copy to opposing counsel.
What does it mean to be a Standby Case? A standby case is a case placed on the list as a back-up case in the event of an unforeseen emergency. Standby status is also a means to expedite a case, inasmuch as standby cases are always ordered for argument the following month if not reached in the stand-by month.
What happens if an emergency arises? If you are involved in an emergency of a nature that would preclude oral argument, contact the Clerk's office immediately. The Clerk will make every effort to replace your case with a standby case. However, the opportunity to call a standby case is lessened nearer to the scheduled date for argument. If a standby case is called in place of your case, your case will be rescheduled on the next month's list.
On the Day of Argument
What do I do upon arrival? A Session Clerk is available in or near the courtroom before argument to answer questions concerning protocol and procedures. Arguing counsel must sign an appearance of counsel form prior to the start of the session at 9:30 a.m. This is the only means by which the Session Clerk is able to know that you are present. Cell phones, pagers, personal computers, and other electronic devices must be turned off before entering the courtroom. Cameras are not allowed in the courtroom during proceedings, unless approved by the panel. See generally SJC Rule 1:19. In that case, one still camera and one moving camera are allowed and designated to the first television station that makes the request; and the feed is shared with the other local stations. Food and beverages are not allowed in the courtroom. Water is provided at counsel tables.
When do I need to be in the courtroom? All Counsel should enter their appearances by 9:30 a.m., unless the Notice indicates that the session will begin that day at a different time. There have been instances where counsel on the first case were not present in the courtroom and the second case was called.
In what order are cases called? The cases are called in the order posted on the monitor outside the courtroom. Occasionally circumstances have arisen that necessitate a late change in the order of cases. Please confer with the Court Officer or Session Clerk to verify the order of argument. Four, five or six cases may be scheduled on the daily list. All cases scheduled for a particular day will be called on that day; cases are never rescheduled to the following day.
Courtroom seating: All oral arguments are open to the public, but seating is limited and on a first-come first-seated basis. Standees are not allowed. Visitors should be aware that many cases may attract large crowds and make plans accordingly. Prior to the day of argument, please advise the Clerk's Office of any necessary accommodations (handicap access), to enable court personnel to make suitable arrangements. The district attorneys' offices and the criminal defense bar may contact the Clerk's office to plan for any accommodations that may involve security issues or victim-witness assistance issues. Attorneys may sit in front of the railing in the courtroom, all other interested parties may sit on the benches provided in the main gallery behind the railing. If you have any questions regarding where to sit, please check with one of the Court Officers.
Where do I sit while waiting for my case to be called? Counsel should wait in the courtroom if arguing the first or second case on the list. If the case is after the second case on the list, the attorneys' room is available for waiting. Be aware that cases may conclude earlier than planned or otherwise may be advanced unexpectedly. If you must leave the courtroom, please notify the Court Officer. If your case is the next case on the list, you should be in the courtroom prepared to come to counsel table when the case is called.
The Presiding Justice of the three-justice panel will announce your case. Counsel who will argue first should immediately advance to the podium. After the conclusion of argument in a case, counsel in the following case will have a brief moment to set up at counsel table after the case is announced.
At which counsel table do I sit? The counsel table for the appellant is on the left as you face the bench. Counsel table for the appellee is on the right. The designation of appellant and appellee never changes.
Who argues first? The appellant argues first. Often, during arguments, the Justices ask questions of counsel regarding specific issues raised in the briefs that have been filed.
How do I address the members of the Court? The usual opening address is "Members of the panel, may it please the Court". It is appropriate to introduce yourself and state whom you represent for the record. Chief Justice Rapoza is referred to as "Chief Justice." Associate justices, including those that are serving as the Presiding Justice for that panel, are referred to by name or "Your Honor."
How does the timer operate; what do the lights indicate? The set of timers, one facing the podium and one facing the bench, is operated by the Session Clerk and is started at the Court's indication or when counsel begins to speak. The green light is on for the first thirteen and one-half minutes of argument. A yellow light indicates one and one-half minute remaining. A red light indicates the end of the time allotted. When the red light appears, counsel should immediately conclude the argument, unless actively engaged in responding to a question from the bench.
How much time is allowed; is there rebuttal? Unless otherwise directed by the panel, each side is allowed fifteen minutes for argument. Requests for additional time may be allowed in rare circumstances and must be made in advance of argument by written motion. There is no rebuttal argument. There is an opportunity to file post-argument letters pursuant to Rule 16(l) of the Massachusetts Rules of Appellate Procedure, or if the Justices have so requested.
May I split my time? Splitting time among multiple attorneys per side is permissible. Where there are multiple parties on each side, prior to argument the Session Clerk should be notified concerning the parties' agreement as to how they intend to split the fifteen minutes.
How does the microphone operate? The microphone is preset to amplify as well as record. Do not attempt to adjust the microphone. During argument you should speak in a clear, distinct manner so that your voice will be audible to the Justices and will be clearly recorded. You should avoid having notes, books or your hands touch the microphone since this interferes with the recording process.
Exhibits/Transcripts -- Who has them and where are they on argument day? In civil cases, the rules place the obligation on the appellant to designate the record on appeal, including transcripts and exhibits. Those documents are reproduced in the record appendix and in transcript and exhibit volumes. In criminal cases, the transcript is part of the assembled record on appeal transmitted by the trial court. Exhibits remain in the trial court unless and until called for by the Clerk's Office. If counsel wish to have exhibits or chalks used at argument, arrangements must be made through the Clerk's Office prior to argument.
Webcast of Oral Arguments:
Currently webcasts of live oral arguments are not available. A CD-ROM of the oral argument may be obtained from the Clerk's office for a fee of $50.50.
The Justices issue written opinions (decisions) generally within 130 days following oral arguments. Published opinions are available on-line at www.massreports.com, the website of the office of the Massachusetts Reporter of Decisions, after 10:00 a.m. on the day the opinion is issued.
Summary dispositions pursuant to Rule 1:28 issued after February 25, 2008 are now available in a searchable database at the same website. The service is available at no cost to the public.
Single Justice Sessions:
On those occasions when a Single Justice of the Appeals Court schedules hearings, the hearings are held in either Courtroom 3 or 4 on the third floor of the John Adams Courthouse, at a time and date indicated in the prior written notice issued to each side. Unless otherwise indicated by the single justice, each side is allowed fifteen minutes for argument.
The Clerk and her staff will be pleased to answer any questions and to address any requests for assistance. Counsel may obtain information on the status of their cases by consulting the online docket for the case or calling the Clerk's office at 617-725-8106. The court monthly calendar of cases scheduled for argument is also available online.