Should Two Attorneys be Able to Split an Appellate Oral Argument?

The Supreme Court announced that it is seeking comments on a proposed amendment to Rule 2:11-1(b)(3).  That rule, which deals with oral argument in the appellate courts, currently states that “[n]o more than two attorneys will be heard for each party.”  The proposed amendment would say “One attorney will be heard for each party, unless the court otherwise orders.”

The current language permits parties to decide whether they want to have two counsel split an oral argument.  The amendment transfers that decision to the appellate court.  Though I have recently been involved in a few split arguments, in complex mass tort Multi-County Litigation discussed , , and here, there are comparatively few cases where more than one attorney argues for a party on appeal.  There thus seems no need to take the choice of oral argument counsel away from the parties.

It is not as though parties who use two attorneys get extra argument time.  The very same rule states that, regardless of whether one or two counsel argue for a party, “[e]ach party will be allowed a maximum of 30 minutes for argument in the Supreme Court, unless the Court determines more time is necessary, and 30 minutes in the Appellate Division, but the court may terminate the argument at any time it deems the issues adequately argued.”  Allowing a party to share argument between two counsel thus does not take more court time.

Financial disincentives to the use of more than one oral advocate help ensure that divided arguments are uncommon.  In an hourly appeal, the client who opts for a divided argument is paying two attorneys for their time instead of one.  In contingent matters, a law firm or firms are investing the time of two attorneys rather than just one.  Rational appellate litigants do not choose to use two attorneys unless the financial stakes of the case justify that, which is why that does not often occur.  It is not clear what problem this proposed amendment is intended to fix.

Finally, the amendment seems to contemplate that a party seeing to divide argument would have to do so by motion.  That is an added step that unnecessarily causes expense to that party and adds to the motion burden of our appellate courts.  It also enables the other party to oppose that request, which is in tension with the practice under Rule 2:11-1(b)(2) that oral argument is granted if any party requests it.  Just as one party cannot veto an oral argument request made by the other party, one party should not be able to try to dictate how the other party presents oral argument.

The comment period is open until June 15, 2018, and if approved, the amendment would take effect on September 4, 2018.  Interested readers, whether in favor of or opposed to the proposed amendment, should make their voices heard.