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Argument or Submission? Which Makes the Better Case for Your Clients?

by | Oct 4, 2018

Typically, attorneys request oral argument time for their appeals (as opposed to filing on submission) in the Appellate Division, First and Second Departments.

The First Department identifies “enumerated” appeals in § 600.4(a). These appeals are entitled to argument time as long as the parties consult, determine how many minutes each side will request and then submit a Request for Oral Argument form. All other appeals under § 600.4(b) are identified as “non-enumerated.” Non-enumerated appeals are not entitled to argument. On occasion, a party may write a letter to the Court explaining that, even though it is a non-enumerated appeal, argument is warranted for a particular reason. In these instances, the First Department may agree to grant argument on a case-by-case basis.

In the Second Department, it is simply a matter of reserving the desired number of minutes on the top right-hand side of the brief cover. Attorneys also have the option of writing “submitted by” (in place of “to be argued by”) at the top of the brief cover. In this instance, when the case is calendared, the Second Department will take the case on submission without argument.

Typically, an appeal involving two adversaries will result in each side reserving 15 minutes of argument time. Of course, on the date of argument, depending on the extent of the docket, the Presiding Judge will usually run down the docket of cases to be argued and ask that each side reduce its requested amount of time.

As to whether an attorney is better off arguing or submitting, there are different thoughts on the matter. Some say that the Court will likely make its decision on the papers submitted. Others posit that argument provides the opportunity to emphasize a particular point or argument made in his/her brief. The bottom line is this: it is better to preserve the right to argue your appeal when possible. Then, if the attorney elects not to argue, he/she may always rest on the papers filed and submit without argument. But even if one does not wish to add anything orally to that which has been written in the appellate brief, appearing before the Court for argument offers the panel the opportunity to ask any questions it may have based upon the written submission. And if that is the one thing that winds up swinging the vote, then that makes a strong case for requesting argument.

 

By John McGorty (and Eric J. Kuperman, Esq.)

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