Unavailability for Oral Argument Dates in the Appellate Division, First and Second Departments: What to Do
Oral arguments are presented to a judge or appellate court by a lawyer (or parties when representing themselves) in support of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute. Oral argument operates by each party in a case taking turns to speak directly to the judge or judges with an equal amount of time allotted to each. A party may often reserve part of their time to be used for rebuttal after their adversary has presented argument in the First Department, though rebuttal is not permitted in the Second Department.
Appellate Division, First Department
If the arguing attorney anticipates being unavailable for specific dates within the term for which the appeal is noticed, unavailability letters may be sent to the court by a certain date, which is the same as the last day to adjourn an appeal out of the specific term. You can reference those dates on the term calendar here. The letters may be sent by a single party, or joint letters on behalf of all parties to an appeal may be submitted. Each term, there are between nine and twelve dates for oral argument. Parties may not be unavailable for more than half of the argument dates in a given term.
If oral argument has already been calendared before the arguing attorney becomes aware of his or her unavailability on that date, the First Department requires an application by expedited relief application to adjourn the oral argument date. It is preferred that the application be accompanied by a stipulation among the parties to adjourn the argument date. There is also a $45 fee.
Appellate Division, Second Department
Attorneys in the Second Department are under a continuing duty to alert the court of upcoming unavailability in their schedules. If an arguing attorney knows that certain dates will be impossible for attendance at oral argument, a letter to the Clerk’s Office with a copy to all parties is sufficient to request that oral argument not be scheduled on those dates, such as during an upcoming trial or previously scheduled vacation.
The Second Department strongly disfavors adjourning oral arguments once they are calendared. Under its rule 670.15(d), oral arguments can only be adjourned in “unusual circumstances,” and require a written explanation as to why a particular counsel cannot appear, why no other attorney can appear in his place, and why oral argument is necessary in lieu of submission. Such applications are not granted easily in the Second Department, because it is the policy of the court to release the name of the assigned panel at the same time the oral argument is calendared. Consequently, to avoid “judge shopping,” if the court grants a new argument date, it must be on a date that the same panel can be reconvened.
If you have any questions or if you would like assistance on one of your appeals, please call us at 212-213-3222.
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