(a) When Allowed. Oral argument will be had in all death penalty cases. In all other cases, oral argument will be allowed unless the court, or the panel to which the case is assigned, unanimously agrees that: (1) the appeal is frivolous; or(2) the dispositive issue or set of issues has been recently authoritatively decided; or(3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.(b) When Requested. Any party desiring to be heard orally shall so state on the cover of his brief (e.g., ORAL ARGUMENT REQUESTED). Parties not seeking oral argument must also so note: ORAL ARGUMENT NOT REQUESTED. The appellee shall make this notation on his principal brief; the appellant shall make this notation on his reply brief or, if no reply brief is filed, by letter within the time allowed for filing of the reply brief. The party requesting oral argument shall, in his or her brief or letter, include a concise statement of the reasons that oral argument will be helpful to the court. Unless a party desiring oral argument complies with this requirement, he shall not be heard orally except by special permission or order of the appropriate appellate court. By agreement of the parties, a case may be submitted for decision on the briefs, but the appropriate appellate court may direct that the case be argued.(c) Notice of Argument; Postponement. At least 14 days before the date set for argument, the clerk shall serve on counsel of record notice of the time and place for argument, and the time to be allowed each side. A request for postponement of the argument or for allowance of additional time must be made by motion filed reasonably in advance of the date fixed for hearing.(d) Time Allowed for Argument. Each side shall be allowed 30 minutes for argument, unless otherwise ordered by the court. A party is not obliged to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary.(e) Order and Content of Argument. The appellant is entitled to open and to conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records, or authorities. The court may, in its discretion, advise the parties of the points upon which the court would like to hear argument.(f) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate court otherwise directs. If a case involves a cross-appeal, the party first filing a notice of appeal shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.(g) Non-appearance of Parties. If the appellee fails to appear to present argument, the court may hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order. If a party or attorney who requested the oral argument fails to appear or present argument, the court may assess a penalty in the amount of the reasonable cost for appearance incurred by the party or the attorney for the party who does appear for argument. In its discretion, the court may include a reasonable attorney's fee as a part of such costs, and assess such other sanctions as may be appropriate.(h) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the courtroom before the court convenes on the date of the argument. After the argument, counsel shall cause the exhibits to be removed from the courtroom unless the court otherwise directs.Advisory Committee Historical Note
Effective January 1, 1995, Miss.R.App.P. 34 replaced Miss.Sup.Ct.R. 34, embracing proceedings in the Court of Appeals. In addition, a new subsection (b) was added, altering the procedure by which a party may request oral argument; the Comment was also amended to reflect this change. 644-647 So.2d LXXII-LXIV (West Miss.Cases 1994).
[Adopted August 21, 1996.]
Comment
Rule 34 is based on Fed. R. App. P. 34, Ala. R. App. P. 34, and the former rules of the Supreme Court. If counsel has a conflicting prior trial setting at the time counsel receives a notice of oral argument under Rule 34(b), counsel should immediately notify the clerk of the Supreme Court of the conflict. See Leonard v. Leonard, 486 So. 2d 1240, 1241-1242 (Miss. 1986).
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