Cathy Trent-Vilim

This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department.

Imagine stepping up to the plate, preparing to hit your first baseball of the season.  You’ve been looking forward to this moment for months, picturing it in your mind and practicing for what seems like forever.  Just as the pitcher gets ready to wind up, the heavenly floodgates open and a torrential downpour ensues.  Worse yet, the rains persist and the umpire calls the game.  Such disappointment!

Well, if you’re attorney, this is the kind of disappointment you feel when you receive a notice from the Nebraska Court of Appeals informing you that the Court has elected to submit your case “without oral argument.”  For appellate lawyers, oral argument is the functional equivalent of trial.  Certainly, reviewing the appellate record and drafting the appellate briefs can be exciting in their own rights, in much the same way as written discovery and depositions in litigation.  But oral argument – that is the pièce-de-résistance.

In days past, there was nothing to be done after receiving the fateful notice from the Court.  You simply waited for the Court’s opinion.  Recently, however, the Supreme Court amended Neb.Ct.R.App.P. § 2-111(B)(1) to allow parties to file a motion and request oral argument where the Court has otherwise ordered the case submitted without oral argument.

Under the new rule, parties have seven (7) days after the date of the minute entry submitting the case without oral argument to file a motion setting forth the reasons for why the Court should hear oral argument.  The opposing party then has seven (7) days after the filing of the motion to respond.  Once the response period expires, the motion is submitted to the Court for its consideration.

What, you ask, are sound reasons for requesting oral argument, especially when the Court has seemingly already deemed your case unworthy?  Good question.  Read Part II of this blog for the answer.