West Virginia Judiciary

Rules of Appellate Procedure

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Part V. Oral Argument

 

Table of Contents Full Table of Contents
  1. Argument calendar
  2. Oral argument
  3. Oral argument

Argument calendar
  1. Criteria for oral argument. Oral argument is unnecessary when:
    1. all of the parties have waived oral argument; or
    2. the appeal is frivolous; or
    3. the dispositive issue or issues have been authoritatively decided; or
    4. the facts and legal arguments are adequately presented in the briefs and record on appeal, and the decisional process would not be significantly aided by oral argument.
  2. Clerk to prepare argument calendar. From time to time, the Clerk will prepare a calendar of cases ready for oral argument. A case ordinarily will be scheduled for argument at least thirty days prior to the date of argument, unless circumstances otherwise require. The Clerk will advise counsel when they are required to appear for oral argument, under either Rule 19 or Rule 20, and will publish an argument docket in advance of each session for the convenience of counsel and the information of the public.
  3. Consolidated argument. The Court, on its own motion or that of a party, may order that two or more cases involving the same or related assignments of error or questions of law be argued together as one case or on such other terms as the Court may prescribe.

Oral argument
  1. Selection of cases for Rule 19 argument. If the Court, in its discretion, determines that Rule 19 oral argument shall be held in a case, the parties shall be notified by the Clerk. Cases suitable for Rule 19 argument include, but are not limited to: (1) cases involving assignments of error in the application of settled law; (2) cases claiming an unsustainable exercise of discretion where the law governing that discretion is settled; (3) cases claiming insufficient evidence or a result against the weight of the evidence; (4) cases involving a narrow issue of law; and (5) cases in which a hearing is required by law.
  2. Notice. The Clerk shall notify each party that a case has been scheduled for Rule 19 argument. Unless circumstances otherwise require, the notice will issue at least thirty days prior to the date scheduled.
  3. Continuance. A request for continuance of the argument must be made by written motion—preferably a joint motion that suggests an alternative date—stating the grounds therefore, and shall be filed within ten days of the date of the notice of argument.
  4. Eligibility to argue. A party who has not filed a brief may not present oral argument. A party who has filed a summary response in lieu of a brief is deemed to have waived oral argument, but shall be heard orally if the Court specifically directs in the notice of argument. Amicus curiae shall not be heard during a Rule 19 argument.
  5. Oral argument. Oral arguments under Rule 19 are limited to ten minutes per side, unless otherwise indicated by the Court in the notice of argument. During oral argument, the Court may direct counsel to conclude prior to the time allotted if the Court understands the issues and the Court determines that further argument is not necessary. In the event of multiple parties on the same side, the Court may determine, either upon its own motion or upon motion of a party, an appropriate amount of time for oral argument. The petitioner shall be entitled to open and close the argument.
  6. Waiver of argument. Within ten days of the date of a notice scheduling a case for argument under this Rule, counsel may inform the Clerk and all parties to the case in writing that oral argument is not desired, in which case argument will be conducted by the remaining parties to the case.
  7. Consideration by the Court.  Upon conclusion of the argument, the case will be further considered by the Court in chambers.  Thereafter the Court will: (1) decide the case on the merits by issuing a memorandum decision or an opinion; (2) set the case for oral argument under Rule 20; or (3) issue an appropriate order after considering the written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from an interlocutory decision, or the appeal is dismissed because the case has been settled.)

Oral argument
  1. Selection of cases for Rule 20 argument. If the Court, in its discretion, determines that a case presents an issue proper for consideration by oral argument under this Rule, the parties shall be notified by the Clerk. Cases suitable for Rule 20 argument include, but are not limited to: (1) cases involving issues of first impression; (2) cases involving issues of fundamental public importance; (3) cases involving constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling; and (4) cases involving inconsistencies or conflicts among the decisions of lower tribunals.
  2. Notice. The Clerk shall notify each party that a case has been scheduled for Rule 20 argument. Unless circumstances otherwise require, the notice will issue at least thirty days prior to the date scheduled.
  3. Continuance. A request for continuance of Rule 20 argument must be made by written motion—preferably a joint motion that suggests an alternative date—stating the grounds therefore, and shall be filed within ten days of the date of the notice of argument.
  4. Eligibility to argue. A party who has not filed a brief may not present oral argument. A party who has filed a summary response in lieu of a brief is deemed to have waived oral argument, but shall be heard orally if oral argument is held under this rule. Amicus curiae may not present oral argument unless the Court has granted permission under Rule 30.
  5. Oral argument. Unless otherwise provided in the notice or by order, oral argument under this Rule is limited to twenty minutes per side. During oral argument, the Court may direct counsel to conclude prior to the time allotted if the Court understands the issues and the Court determines that further argument is not necessary. In the event of multiple parties on the same side, the Court may determine, either upon its own motion or upon motion of a party, an appropriate arrangement for oral argument. The Court may, at the conclusion of the time allotted, permit further argument if necessary. The petitioner shall be entitled to open and close the argument. A party is not obliged to utilize all of the time allotted, and the Court may terminate the argument whenever in its judgment further argument is unnecessary. Oral argument shall emphasize and clarify the written argument appearing in the briefs. The Court may decline to consider issues at oral argument that were not presented in the briefs. The Court does not favor any oral argument that is read from briefs or from a prepared text.
  6. Waiver of oral argument. Within ten days of the date of a notice scheduling a case for the argument docket, a party may inform the Clerk and all parties to the case in writing that oral argument is not desired, in which case the oral argument will be conducted by the remaining parties to the case.
  7. Consideration by the Court. Upon conclusion of the oral argument, the case will be submitted for decision.  Thereafter the Court will: (1) decide the case on the merits by issuing a memorandum decision which explains the reasons why the Court is not issuing an opinion; (2) decide the case on the merits by issuing an opinion; or (3) issue an appropriate order after considering the written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from an interlocutory decision, or the appeal is dismissed because the case has been settled.) The Court shall take all reasonable action to decide the case on the merits by issuing an opinion or other appropriate order, and shall not decide the case by issuing a memorandum decision absent exceptional or compelling circumstances.