Future Effective Date
Rules of Appellate Procedure

Effective March 1, 2019

Rules of Appellate Procedure Appellate Procedure Rule 22: Oral argument

Effective Date: 03/01/2019
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 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(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 from a conviction of murder in the first degree, in which case each side will be allowed 20 minutes for argument. Reasonably in advance of the date fixed for oral argument, a party may move for additional time for good cause shown. The appellate court may terminate the argument whenever in its judgment further argument is unnecessary.

(c) Order and content of argument.

(1) Oral Argument.

The appellant will argue first. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally.

(2) Post-Argument Filings.

After the oral argument of a case has been concluded or the case has been submitted on the documents without oral argument, no brief, memorandum, or letter relating to the case, except a citation of supplemental authorities letter filed pursuant to Rule 16(l), shall be submitted to the court, except to correct a factual misstatement during oral argument, or when such a writing was expressly allowed or requested by the court during the argument, or upon allowance of a motion to submit such a writing. Any such writing allowed during oral argument shall state that the court allowed the submission. A submission containing argument on the merits and not otherwise in compliance with this rule may be struck by the court.

(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 separate appellants support the same argument, care shall be taken to avoid duplication of argument.

(e) Non-appearance of parties.

Parties are expected to appear for oral argument unless prior arrangements have been made with the court. 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 present. If neither party appears, the case will be decided on the briefs unless the appellate court shall otherwise order.

(f) 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 the party’s 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 appellate court or a justice thereof shall have approved the submission prior to the week the case has been scheduled for argument.

(g) Use of physical exhibits at argument; removal.

If physical exhibits other than documents are to be used at the argument, the party 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 the party 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

(2019)

Rule 22(b) was amended to clarify that requests for additional argument time must be made reasonably in advance of the date fixed for oral argument.


Rule 22(c) was revised into two paragraphs. Rule 22(c)(1) addresses the rules for oral argument. The sentence providing that nothing argued in a brief is deemed waived by a failure to argue orally was relocated from prior Rule 16(a)(4) because Rule 22 is a more appropriate location as it concerns procedures for oral argument. Rule 22(c)(2) is a new paragraph that clarifies the procedure and limits of a post-argument filing. Once oral argument is completed, a party may not submit any additional argument on the merits in the case other than a citation of supplemental authorities pursuant to Rule 16(l), a letter correcting a factual misstatement of any party during oral argument, or when otherwise allowed by leave of court. Although a letter containing citation of supplemental authorities pursuant to Rule 16(l) does not require leave of court, a submission containing argument on the merits does, and may be struck by the court if no leave has been granted. This amendment is not intended to modify existing practice where a justice requests or permits a party to file a letter at oral argument. A party who is given leave during oral argument should identify that leave has been given in the party’s post-argument filing.

Rule 22(d) previously included a sentence relating to designation of the parties in a cross appeal. The substance of this sentence was moved to Rule 10(a)(7), which governs the docketing of an appeal. A party’s designation, including in any cross appeal, is important at the outset of the case.

Rule 22(e). The first sentence was added to clarify that parties do not have the option not to attend oral argument without prior arrangements having been made with the court.

Rule 22(f), which previously prohibited an attorney who has been a witness in a case from appearing at oral argument without leave of court was stricken because there are several circumstances in which an attorney may testify under Mass. R. Prof. C. 3.7(a). The subsequent subdivisions were re-lettered.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(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 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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