Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 22: Oral argument

Effective Date: 09/03/2002
Updates: Amended May 15, 1979, effective July 1, 1979 Amended December 2, 1983, effective January 1, 1984
Amended effective May 1, 1994 Amended effective November 1, 1994 Amended May 3, 2002, effective September 3, 2002

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(a) Notice of argument; postponement

The clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing.

(b) Time allowed for argument

Unless otherwise enlarged or limited by the appellate court, each side will be allowed 15 minutes for argument, except in a criminal case in which the defendant is appealing a conviction of murder in the first degree, in which case each side will be allowed twenty minutes for argument. If counsel is of the opinion that additional time is necessary for the adequate presentation of the argument, counsel may request additional time for good cause shown. Requests may be made by letter addressed to the clerk reasonably in advance of the date fixed for the argument. The appellate court may terminate the argument whenever in its judgment further argument is unnecessary.

(c) Order and content of argument

Except as otherwise provided in Rule 27.1(g), the appellant will argue first and shall include a fair statement of the case. Counsel will not be permitted to read, except briefly, from briefs, records, prepared statements, records or authorities. The party making the opening argument on request may be allowed the opportunity to reply in writing to new matter in the arguments of his adversary.

(d) Cross and separate appeals

A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate court otherwise directs. If a case involves a cross appeal, the plaintiff in the action below shall be deemed the appellant for the purposes of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.

(e) Non-appearance of parties

If the appellee fails to appear to present argument, the appellate court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the appellate court shall otherwise order.

(f) No oral argument by an attorney who has been a witness except by leave of court

 No attorney shall be permitted to take part in the argument of a case in which he has been a witness for his client; except by special leave of court.

g) Submission on briefs

By agreement of the parties, a case may at any time be submitted for decision on the briefs, but the appellate court may direct that the case be argued. At any time, any party may, by written notice filed and served, waive his right to oral argument. No criminal case in which the defendant was convicted of murder in the first degree may be submitted for decision on the briefs without oral argument unless the full appellate court or a justice thereof shall have approved the submission prior to the week the case has been scheduled for argument.

(h) Use of physical exhibits at argument; removal

If physical exhibits other than documents or chalks are to be used at the argument, counsel shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument, the exhibits shall be left with the clerk unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.

Reporter's notes

(2002) [Notes to Appellate Rule 22(B)] In 2002, the Supreme Judicial Court amended Appellate Rule 22(b) to reduce the time allowed for oral argument in first degree murder cases from thirty minutes to twenty minutes for each side. The time for oral argument in all other cases remains fifteen minutes for each side. As amended, Appellate Rule 22(b) further provides that if counsel desires additional time for oral argument, “counsel may request additional time for good cause shown.” This latter provision replaces the former language that had provided that requests for additional time “will rarely be granted.”

(1994) Mass.R.A.P. 22(h) does not give permission to counsel to refer to physical exhibits during oral argument. It only instructs counsel as to their obligation to arrange to have the physical exhibits in the court room before the court convenes if they are going to use them, and of the clerk’s obligations afterwards.
 
Counsel should remember that it is their obligation to include in the appendix any portions of the record they are relying upon, including exhibits, in accordance with the provisions of Mass.R.A.P. 18(a) and 18(b). The third paragraph of Mass.R.A.P. 18(a) makes clear that “... the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument.”
 
Physical exhibits cannot be actually placed in an appendix. Consequently, counsel on appeal who intend to refer to a physical exhibit, such as a revolver or a piece of clothing, should “prior to argument” seek leave of court to refer to such objects. Many appellate justices prefer to have pages in an appendix to refer to whenever possible. It is sound practice for counsel on appeal to have a photograph of physical exhibits appear on a page or pages of the appendix, even if prior permission has been given to use the actual physical exhibit at the oral argument.

(1983) The purpose of this amendment is to conform Rule 22(b) to the actual practice in the appellate courts.

The purpose of this amendment is to conform Rule 22(c) to the actual practice in the appellate courts.

(1979) The only change in Rule 22 is that the substance of Supreme Judicial Court Rule 1:20 (1975: 366 Mass. 862), relative to submission of capital cases on briefs, is added to subdivision (g) of the former rule. The provisions of Rule 22 were previously applicable to criminal appeals by virtue of Supreme Judicial Court Rule 1:20, supra and Appeals Court Rule 1:20 (1975: 3 Mass.App.Ct. 804).

(1973) Appellate Rule 22 governs the conduct of oral argument. A modification of F.R.A.P. 34, it codifies prior practice. Enlargements of argument time beyond thirty minutes will rarely be allowed; compare F.R.A.P. 34(b). Rebuttal argument, a matter of right, Appellate Rule 22(c), is strictly limited to new matter raised in appellee’s argument. Although failure explicitly to reserve rebuttal does not waive the right, failure to preserve for rebuttal purposes a portion of the thirty-minute argument time will effect a de facto waiver in the absence of leave granted.

 

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended December 2, 1983, effective January 1, 1984
Amended effective May 1, 1994 Amended effective November 1, 1994 Amended May 3, 2002, effective September 3, 2002

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