No new issues during rebuttal argument

As you may recall, an oral argument at the Federal Circuit is typically divided into fifteen minutes per side.  The appellant argues first and is entitled to reserve some of his or her fifteen minutes for rebuttal argument.  Oftentimes, the appellant runs into his or her rebuttal time during the initial argument.  This can occur, for example, when there is extensive questioning from the court or poor clock management by the appellant. 

The presiding judges of the panels at the Federal Circuit are pretty accommodating when it comes to the formalities of oral argument.  They often allow a party to run long and then restore the full rebuttal time.  They seem more inclined to do this if the reserved rebuttal time is five minutes or less.  In such instances, the appellee is given an equal extension so that both sides have an equal amount of argument time.

It’s been my impression that Judges Mayer and Newman run the tightest ships when it comes to oral argument.  While they will often give an appellant his or her full requested rebuttal time when time runs over, that is not always the case.  They are also more likely to instruct an appellant to wrap up and surrender the podium when the appellant encroaches on his or her rebuttal time during the main argument. 

One formality that is strictly enforced by the Federal Circuit is the rule that the appellant should not raise new issues on rebuttal because the appellee does not have a chance to respond to them.  The presiding judges are uniform in enforcing this rule.   Thus, an appellant needs to be careful to argue all issues that he or she wants to address in the oral argument during the main argument.  This may require letting the presiding judge know that there is an additional issue to be mentioned prior to concluding the main argument.  As an example of the trap that can befall an appellant, Judge Mayer recently instructed an appellant to wrap up at about the twelve minute mark of oral argument [Listen] and then did not allow the appellant to argue new issues during rebuttal [Listen].

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