“ORAL ARGUMENT REQUESTED”
Earlier this week, I saw these words on the cover of a brief filed in the Texas Supreme Court.
If you’ve practiced in Texas’s fourteen appellate courts, you know that you need to formally request oral argument or risk actually waiving the chance to appear at argument. (( This strange rule has led to strange results. Some courts of appeals have interpreted it so rigidly that they have held oral arguments at which only one side could stand up and speak. )) Careful lawyers thus put “ORAL ARGUMENT REQUESTED” on the cover of their briefs in the boldest font they can find.
But the Texas Supreme Court rules are different. Putting these three little words on your brief cover might perhaps show the Court you care, but it has no legal effect.
That’s because, unlike the lower courts of appeals, the Supreme Court of Texas has sole discretion over whether to hear oral argument. Compare Tex. R. App. P. 39.1 (“A party who has filed a brief and who has timely requested oral argument may argue the case to the court unless the court, after examining the briefs, decides that oral argument is unnecessary….”), with Tex. R. App. P. 59.2 (“If the Supreme Court decides that oral argument would aid the Court, the Court will set the case for argument.”).
When a case reaches the Texas Supreme Court, and you’re writing that first brief, deleting those three little words from the cover can remind you that you’re in a different kind of court, one whose primary concern is why it should exercise discretionary review over your petition at all.