Short answer. Either way it can happen. The Court of Appeals may hear oral argument on the merits or on a material incident either on its own initiative or upon a party's motion, but the argument is limited to whatever matters the court specifies in its order or resolution.
What the law says
At its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith.
Rule 49, Section 1 — When allowed. Read the full provision →
What the law says
The oral argument shall be limited to such matters as the court may specify in its order or resolution.
Rule 49, Section 1 — When allowed. Read the full provision →
The court can act on its own, or on a party's motion
Oral argument in the Court of Appeals is not reserved solely for the court's initiative, nor solely for a party's request. Section 1 provides that at its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith. Either route can trigger it.
It is always discretionary
Whether the court initiates it or a party requests it, oral argument remains something the court 'may' allow — a party filing a motion for oral argument is not entitled to it as a matter of right; the decision to hold it rests with the court. A case can be, and often is, decided on the pleadings and briefs alone without any oral argument being held.
The scope is set by the court, not the movant
Even when oral argument is granted, its boundaries are fixed by the court: the oral argument shall be limited to such matters as the court may specify in its order or resolution. A party cannot use the opportunity to range freely over every issue in the case; the argument stays confined to whatever the court's order identifies, and counsel should prepare accordingly rather than treating the hearing as an open forum.
Why a motion should explain what argument would add
Because oral argument is discretionary and its scope is court-defined even when granted, a party's motion requesting it stands a better chance when it explains specifically what oral argument would clarify that the briefs and pleadings have not already covered, rather than simply asking for a hearing as a matter of course. A motion that identifies a genuinely disputed point the court might benefit from hearing argued live gives the court a concrete reason to grant it.
What a denied or unrequested motion means
Because oral argument is discretionary, the Court of Appeals denying a motion for it, or simply never acting on its own initiative, does not deprive a party of any right — the case proceeds to decision on the pleadings, briefs, and record already before the court, which is the ordinary course under Rule 49 rather than an irregular shortcut. The rule binds the parties to whatever scope the court sets once argument is granted; neither the movant nor the opposing party can unilaterally expand the matters up for discussion beyond what the court's order or resolution specifies.
Related provisions
- Rule 49, Section 1 — When allowed
- Rule 49, Section 2 — Conduct of oral argument
- Rule 49, Section 3 — No hearing or oral argument for motions