North Carolina appellate practitioners may want to sit down before reading this. Actually, maybe stand up—because you might need to spring into action sooner than you think.

The North Carolina Supreme Court appears to be running a tighter schedule for briefing and calendaring cases for oral argument. In some cases, the Court has issued oral argument calendars before briefing has concluded—with at least one advocate relaying that oral argument in a case was scheduled before the first brief was filed.

This could create practical wrinkles for attorneys who want briefing extensions. Courts prefer to read the parties’ arguments before everyone shows up for oral argument. The Court is unlikely to look favorably upon extension motions that would allow briefing to extend past a case’s oral argument date.

These changes might also affect how attorneys prepare for oral argument. On one hand, short periods between briefing and oral argument compress preparation time. An attorney recently reported that his reply brief was filed on Monday, with oral argument occurring two days later. That could present challenges for attorneys who typically moot a case or want to thoroughly digest the authorities in a reply brief.

On the other hand, when oral argument occurs soon after briefing closes, the materials are likely fresh in the attorneys’ minds. The longer the gap between briefing and oral argument, the more time attorneys will spend getting back up to speed on the arguments, facts, and underlying cases.

But Wait—Isn’t There a Rule About This?

Why yes, there is. North Carolina Appellate Rule 29(b) provides that, absent a peremptory setting, “no appeal will be calendared for hearing at a time less than thirty days after the filing of the appellant’s brief.”

Whew—what a mouthful. I think this rule means that oral argument normally will not be scheduled before appellant’s opening brief has been sitting at the court for 30 days—which would be when the appellee’s brief would typically be due. The appellate rules’ history sheds light on why this rule is probably worded this way. Until 2013, parties did not have a right to file a reply brief unless a case was not scheduled for oral argument. My guess is that Appellate Rule 29(b) was designed to work with that prior practice—with the courts wanting to review appellant’s brief, and preferably both parties’ briefs, before deciding whether to schedule a case for oral argument. That changed in 2013, when the court amended Rules 28 and 14 to give all appellants a right to file a reply brief.   But by tradition, the Supreme Court has scheduled oral argument in almost all of its appeals—so no real need to review the briefs to decide whether to schedule oral argument.

I haven’t checked how often the Supreme Court is calendaring cases for oral argument before the appellee’s brief comes in. But regardless of what that answer is, the Court has express authority under Appellate Rule 29(b) and inherent authority under Appellate Rule 2 to schedule cases for oral argument whenever it desires.

What This Means for Practitioners

If you have a case pending before the North Carolina Supreme Court, keep these things in mind:

First, keep a close eye on the Court’s calendar. Don’t assume that following the traditional briefing schedule with no extensions will give you plenty of time after briefing concludes to prepare for oral argument.

Second, be cautious about extensions. If oral argument has already been set, a motion for extension of time may be dead on arrival.

Third, prepare earlier than usual. If there’s any possibility you might have to orally argue soon after briefing closes, begin making argument preparations sooner, plan accordingly—and maybe invest in some comfortable running shoes.

–Beth Scherer