I'm dealing with the 13th COA. I did not request oral argument for obvious reasons. The court granted Appellant's request for oral argument. However, the court will not let me reply at oral argument without filing a motion now requesting oral argument. I understand their literal reading of the rules (even if I don't agree). Does anybody out there have a sample motion? Any help would be appreciated. My e-mail is firstname.lastname@example.org. Thanks.
We regularly put on our brief a request for oral argument, but only if granted for the appellant.
Inadvertently, I was caught in the same situation six years ago before the Dallas COA. The language JB refers to, which we include on all briefs too, didn't make it on to the cover of this particular brief (don't ask). I showed up for argument to learn only the defense was allowed to present. I quickly hand wrote a motion and filed it. Graciously, the Court granted the motion and I argued. I don't recall the wording, but it was very basic (if you knew my handwriting, you would know why!). Good luck.
[This message was edited by John Stride on 12-12-06 at .]
I have an Appeal that is stuck the Apellant refuses to file a brief, I at the request of the Appeals court filed a brief (stating the court should review the record such as it is and finding no error should affirm the trial court) I did not request oral argument at the time I filed the brief.
Can I go back and request oral argument now?
I have found that even though the local rules and Rule 39.7 may say otherwise, most courts are happy to permit the State to present oral argument (if they do not advance the case without oral argument under Rule 39.8) so long as the request is made shortly after it becomes clear an appellant is going to be permitted oral argument. It always helps to say that compliance with the "front cover" requirement was inadvertant (if it was). But, I am also convinced that oral advocacy is serving less and less of a role in the decision-making of the courts and could soon or later become a lost art of appellate advocates. Certainly it is never too late to ask, despite the waiver language.
If it is the defendant's appeal and he hasn't even briefed any issues, why trouble to court with argument? If he did file a brief, though, I can see that you might want to argue. As Martin says, most courts seem to permit it even if one initially declined.
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