The Essential Guide for Requesting Oral Argument at the New York State Appellate Courts
It may not be the most glamorous of topics to discuss, but the procedural requirements of requesting oral argument for your appeal are important to keep in mind, as the appellate courts in New York vary in their respective rules. As I work on preparing a brief for filing with the court, there can be assumptions regarding oral argument that may not necessarily be in line with the rules of the First through Fourth Departments, or the New York Court of Appeals. Here’s a few basics to keep in mind:
How do I request time for oral argument on my appeal?
Requesting oral argument is fairly consistent in the appellate courts and Court of Appeals, requiring a statement in the upper right hand corner of the brief cover with the attorney name and specifying the amount of time for argument (only Second, Third and Fourth Departments and NYCOA). Although the statement with attorney name and time requested is not necessary on the brief cover in the First Department, the court does require a joint request for argument by letter (Rule 600.11(f)). Note, too, that in the Fourth Department no more than one person shall be heard on behalf of a party where a joint brief is submitted (Rule 1000.11(a)).
How much time can I request for argument?
Concerning the time allotted for argument, there is some variation among the appellate courts as to the maximum, absentspecial permissions. In the First Department, 15 minutes are allowed per side for enumerated appeals. However, upon a showing of good cause, additional time can be requested by letter to the clerk prior to oral argument date (Rule 600.11(f)(2)). In the Second Department, 30 minutes is allowed for trials, hearings, Appellate Term appeals and special proceedings, and 15 minutes for all other appeals. The Third Department rules do provide for up to 30 minutes for appeals from judgments and transferred special proceedings – however, this is reduced to 15 minutes’ maximum when involving non-final orders. Interestingly, the Fourth Department does not have a specified argument limit but rather leaves the time allowed within the “discretion of the Court” (Rule 1000.11(b)). I do see that typically with Fourth Department appellant’s briefs that the attorney is requesting 15 or 20 minutes for oral argument. Finally, the Court of Appeals generally allows 30 minutes per party, unless otherwise ordered by the court.
Am I allowed a rebuttal?
In both the Third Department. and the Court of Appeals, a rebuttal is allowed if it is requested at the start of oral argument. In the First Department, you can request rebuttal at calendar call. In the Second and Fourth Departments, a rebuttal is not permitted (noted conspicuously in the Fourth Department rules at 1000.11(f)) – the Second Department does make an exception where a new issue was raised in the respondent’s argument, or there was a factual error.
Are there appeals where no oral argument is permitted?
Each of the four Appellate Division departments do list in their rules specific matters in which oral argument is not allowed. In the First Department appeals from non-enumerated orders (Rule 600.11(f)(3)) cannot be argued, along with State Division of Human Rights (Rule 600.7) and grand jury cases (Rule 600.16). The Second Department does not permit argument in appeals involving child/spousal support/maintenance, attorney’s fees, sentencing, matters involving the Sex Offenders Registry Act (SORA), grand jury, and calendar/practice issues (Rule 670.20). In the Third Department there is no oral argument permitted for Workers’ Compensation appeals and Unemployment Insurance Board cases, along with grand jury cases, sentencing, and Article 78 proceedings where the only issue is substantial evidence (Rules 800.10 and 800.15). Similarly, the Fourth Department prohibits oral argument in SORA cases, sentencing matters and Article 78 proceedings (involving only substantial evidence) (Rule 1000.11(c)).
This is just an overview of some of the guidelines pertaining to oral argument on appeal. AppealTech’s experienced appellate counsel and paralegal team are always available to provide clarification on this or any other issue related to your appeal. You can contact us any time at (888) 619-2000 or firstname.lastname@example.org for additional information.
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