Requesting Oral Argument: Procedural Aspects in the New York Appellate Division

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 in light of the new Statewide Practice Rules for the New York Appellate Division implemented on September 17, 2018.[1] As you work on preparing a brief for filing with the court, your assumptions regarding oral argument  may not necessarily be in line with the new rules. Here are a few basics to keep in mind:

How do I request time for oral argument on my appeal?

Rule 1250.8(a) states that the upper right-hand section of any brief cover filed at the Appellate Division should contain a notation indicating whether the cause is to be argued or submitted, and if it is to be argued, the time required and name of the attorney who will argue. Note that per Rule 1250.15(c)(3), if a party’s main brief fails to specify that a matter is to be argued (and the time requested for argument) it will be deemed submitted without oral argument.

How many attorneys may argue?

Per the First Department Practice Rules, which are to be read in conjunction with the statewide Practice Rules, only one counsel on each side can be heard for oral argument, unless granted permission by the court. Rule 600.15(e)(3). Likewise, the Second Department Practice Rules indicate that no more than one attorney can be heard for each brief unless an application is made to the court in writing at least seven days before oral argument is granted. Rule 670.15(c). The Third Department does not specify in its rules as to whether more than one attorney may argue, or the procedure for any such request to allow for more than one attorney to argue. Fourth Department Rule 1000.15(d)(1) notes that only one person can be heard on behalf of a party, even if parties submit a joint brief.

How much time can I request for argument?

In the First Department Practice Rules, on an enumerated appeal (the types of appeals deemed “enumerated” are listed in First Department Rule 600.15(a), generally), no more than 15 minutes is allowed for argument by either side. However, a party can request (for good cause) additional time to argue, by written application before the day of argument. Rule 600.15(e)(1). Similarly, Second Department Rule 670.15(a) indicates that 15 minutes are allowed for argument to each party who has submitted a brief in cases that allow for oral argument. Again, the Third Department does not indicate with specificity in its rules the maximum time allowed for oral argument. However, the Fourth Department reemphasizes that the cover of the brief should request oral argument and indicate the time requested, and the “amount of time allowed shall be within the discretion of the Court.” Rule 1000.15(d)(1).

Am I allowed a rebuttal?

In the First and Third Departments, prior to beginning argument, an appellant can orally request permission to reserve a specified amount of time for rebuttal. Rule 1250.15(c)(5). In the Second Department, no rebuttal is allowed except with leave of the court given at the time of argument. Rule 670.15(f). The Fourth Department also does not permit rebuttal. Rule 1000.15(d)(3).

Are there appeals where no oral argument is permitted?

In the First Department, appeals from non-enumerated orders may not be argued absent leave of court. Rule 600.15(e)(2). The Second Department does not allow oral argument for issues involving “maintenance; spousal support; child support; counsel fees; the legality, propriety or excessiveness of sentences; determinations made pursuant to the sex offender registration act; grand jury reports; and calendar and practice matters including but not limited to preferences, bills of particulars, correction of pleadings, examinations before trial, physical examinations, discovery of records, interrogatories, change of venue, and transfers of actions to and from the Supreme Court.” Rule 670.15(b). In the Third Department, oral argument is not allowed in the following cases: 1) workers’ compensation or unemployment insurance appeals, 2) appeals from “judgments of conviction in criminal; cases challenging only the legality, propriety or excessiveness of the sentence imposed,” 3) Article 78 proceedings, where the only issue on appeal is whether there is substantial evidence to support the determination, and 4) any other matter that the court deems does not warrant oral argument. Rule 850.15, generally. Similarly, in the Fourth Department, oral argument is not permitted in the following instances: 1) an “appeal or judgment of conviction in a criminal case that challenges only the legality or length of the sentence imposed,” 2) appeal from a determination involving the Sex Offender Registration Act, 3) transferred Article 78 proceedings where the only issue is whether there is “substantial evidence to support the challenged determination,” and 4) any other matter that the court deems does not warrant oral argument. Rule 1000.15(d)(2)(A-D).

This is just an overview of some of the guidelines pertaining to oral argument on appeals to the New York Appellate Division. 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 info@appealtech.com for additional information.

[1] The Statewide Practice Rules are found at 22 NYCRR Part 1250.