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A Late Request for Oral Argument

by merlin on April 19th, 2013
  • Sumo

When a case is docketed with the Supreme Court (other than cases involving the Death Penalty and cases in which Certiorari is granted, in which case oral argument is mandatory), the parties have twenty (20) days from docketing to request oral argument, according to Rule 50 of the Rules of the Supreme Court.  For your assistance, it reads as follows:

Rule 50. ORAL ARGUMENT.

Oral argument will be scheduled by the Court as follows:

(1) Direct appeals from judgments imposing the death penalty will be placed on the calendar automatically and oral argument in such cases is mandatory;

(2) All granted writs of certiorari will be placed on the calendar automatically unless disposed of summarily by the Court and oral argument in such cases is mandatory; and

(3) Other cases will be placed on the calendar upon the request of either party within 20 days from the date the case is docketed in this Court. See Rule 51. No extensions for requesting oral argument will be granted. Oral argument by counsel in appeals other than where the death penalty is imposed is never mandatory, and argument may be submitted by briefs only. Argument will not be permitted to parties or attorneys whose briefs have not been timely filed. The Court may deny or limit oral argument where appropriate.

These rules speak to when oral argument can occur in a case, but not the way that it should be requested.  That is covered by Rule 51, which states that “[a] request for oral argument shall be filed by letter directed to the Clerk, and shall certify that the opposing parties or their attorneys have been notified of the intention to argue the case orally and that inquiry has been made whether they intend also to argue orally. The request shall further certify that the opponents do or do not desire to argue orally, and shall show service of the letter upon such opponents.

There is a special entry on the Supreme Court’s e-file website for requests for oral argument, although late.  The following is a redacted excerpt from a letter brief done for such a request (do not know if it is successful or not, but the law is valid, and the arguments are presented as written);

    “The attention of the Court is first directed to Prime Retail Development, Inc. v. Marbury Engineering Co., a 2004 case decided by the Court of Appeals of Georgia and catalogued at 270 Ga.App. 548, 608 S.E.2d 534.  That case involved a contractual dispute between a financier and a property developer.  The primary conflict in the case involved the dependence of the financier on the oral representations of the property developer, which were at odds from their written representations.  The discrepancies were not verbally disclosed even though they were represented fully in written form, and suit resulted.  This demonstrates the human willingness to rely on oral statements to the exclusion of written statements, and further exhibits the superiority of oral statements in terms of persuasiveness.  In Huffman v. Armenia, also a case decided by the Court of Appeals of Georgia, catalogued at 284 Ga.App. 822, 645 S.E.2d 23 (Ga. Ct. App. 2007), a ruling was issued by the trial court verbally but was not reduced to writing and recorded with the Clerk of Court until a later date.  The Court reaffirmed the rule of OCGA § 9-11-58(b) that the judgment is not considered “final” (therefore capable of being appealed from) until such time as it has been finally reduced to writing and recorded.  That case also exhibits the relative superiority that oral pronouncements often have in consideration by listeners, involving verbal orders concerning a Temporary Restraining Order that the parties desperately wanted to appeal, and in fact did appeal, but which was not yet ripe for such appeal.  Again, the spoken words often have far greater persuasive effect than written words.

            Though the 2004 Court of Appeals of Georgia case of Zhou v. LaGrange Academy, Inc., 266 Ga.App. 445, 597 S.E.2d 522, would appear to and does stand for the proposition that parol, oral representations at odds with the written terms of an objective document (in this case, an employment contract for a teacher who was subsequently dismissed) yield before contrary terms contained in the writing between the parties, the case again exhibits the superior nature of oral argument in terms of persuasiveness on human understanding.  The case itself would not have arisen if the discussions relied on by the Plaintiff in that case had not prevailed over contrary written terms when he faced the terms of the relationship of the parties.  In fact, oral representations are generally considered legally-inferior as evidence in contrast to objective depictions of the same evidence, as shown by Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (Ga. 2007), which expressly found that photographic evidence had superior value in terms of establishment of facts to contrary oral testimony.  However, the case would not have arisen but for the superior persuasive value that people naturally place on verbal transactions.

            Again, though I and opposing counsel are in agreement that this case can be decided by the Court without recourse to oral argument, it has a proven greater persuasive value than sterile black-and-white written argument, and I believe an attorney’s highest duty is to his client as a zealous advocate.  With that in mind, I request the right to present oral argument to the Court on the issues involved in this case, and believe that such will assist the Court in reaching a fair decision.”

Note that the letter-brief should be both sent to the Clerk/served on the opposing party AND filed.

Thought it might be of interest – either as a study in what not to do in progressing through a domestic appeal, or as an outline for successfully pursuing an appeal.

ALSO – Recently, a reader contacted me by e-mail to alert me that they are unable to leave comments in my blog entries.  I have requested information for enabling this feature from my host, but I highly recommend that you do exactly as they did – send an e-mail to me with any comments, corrections, or concerns!  I appreciate the learning experience, and welcome your thoughts.

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