18. How are cases set on the oral argument calendar and why does the court sometimes invite waiver of oral arguments?
The answer depends upon whether the case is a “regular appeal” or “routine disposition” (per curium or by the court opinions).
A routine disposition is a case on appeal which raises no novel questions of law, is not of wide public interest, and can be disposed of by application of settled principles of law to the facts. (Internal Operating Practices of the Fifth District Court of Appeal Section III-B.) Draft opinions in routine dispositions are written by an experienced attorney assigned to the court’s central staff or by a justice. The final opinion is reviewed and approved by a justice of the court.
A regular appeal is assigned directly to a justice’s chambers for handling. It is a case not screened for routine disposition treatment.
Waiver procedures in routine dispositions - A three-justice panel reviews the proposed draft opinion. In the majority of routine dispositions, the court believes waiver of oral argument is appropriate. As a result, the court mails to counsel a letter inviting waiver of oral argument. If the court does not receive a request for oral argument from either side within 10 days from the date of this letter, oral argument is deemed waived, and the case stands submitted. If at least one party requests oral argument, the court then notifies all parties of this fact, and sets the time and date for argument. The case normally goes under submission at the conclusion of oral argument.
Waiver procedures in regular cases - The Clerk sends out a notice entitled “Oral Argument Notice and Questionnaire/Request for Waiver” (oral argument questionnaire). A date and time for oral argument is included. Counsel are asked, among other things, whether or not they want to waive oral argument. This notice is not the final word. For example, if a request to orally argue a case is made, the request is really a request to reserve a date for oral argument. After reviewing the briefs, the authoring justice then decides whether the court wants to hear oral argument. If the justice believes all issues have been covered by the briefs, a letter from the Clerk’s office will be sent to counsel inviting waiver of oral argument. Counsel are advised that if the court does not receive a request of oral argument from either side within 10 days from the date of the letter, their case will be removed from the calendar, oral argument will be deemed waived, and the case submitted. If all parties waive, counsel will receive a copy of the submittal order and later the court’s opinion. If any party requests oral argument, the case will be heard on the date previously set. When one party requests oral argument but the other waives, the justices will hear oral argument from the requesting party alone. It is possible that all parties may waive oral argument, however, the justices may still want the parties to argue the case. When this happens, counsel will be notified either by mail or by telephone. The case will be heard on the date previously set in the oral argument questionnaire.
