When a federal appellate court submits a case on the briefs, the three-judge panel decides it entirely from the written filings and the trial record, without holding oral argument. Roughly four out of five federal appeals are resolved this way. Federal Rule of Appellate Procedure 34 lets the panel skip argument when the briefs and record already give the judges what they need. If this is how your appeal will be handled, the quality of your written filings is the only thing between you and the outcome.
Why the Court Decides Without Oral Argument
Rule 34(a)(2) lists three grounds for bypassing argument. All three judges on the panel must unanimously agree, and the reason has to fit one of these categories:1Legal Information Institute. Federal Rules of Appellate Procedure Rule 34
- The appeal is frivolous.
- The dispositive issues have already been authoritatively decided. The precedent does not have to be recent; what matters is that it still controls.
- The briefs and record adequately present the facts and legal arguments, so argument would not meaningfully help the court.
The third category captures most submissions on the briefs. It is not a judgment that your case is weak. It usually means the panel believes the written materials cover every angle.
Can You Ask for Oral Argument?
Yes. Under Rule 34(a)(1), any party may file a statement explaining why oral argument should or should not be held.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 34 Some circuits require this statement through local rules; others leave it optional. If you believe factual complexity or unsettled law makes written briefs insufficient, a persuasive statement is your best chance at argument time.
The court is not bound by your request. The panel makes its own call after reviewing the briefs. The reverse is also true: even when both sides agree to submit on the briefs, the court can order argument on its own. In practice, when both parties waive, courts rarely override.
What Your Brief Must Contain
Because the brief carries the full weight of your case, Rule 28 is exacting about its contents. The appellant’s brief must include, in order:2Legal Information Institute. Federal Rules of Appellate Procedure Rule 28
- A disclosure statement when Rule 26.1 applies (typically for corporate parties).
- A table of contents and a table of authorities, with cases listed alphabetically and page references for each citation.
- A jurisdictional statement explaining both the lower court’s jurisdiction and the appellate court’s, citing the relevant statutes and establishing that the appeal is timely.
- A statement of the issues the court is being asked to decide.
- A statement of the case covering the relevant facts, procedural history, and the rulings being challenged, with record references throughout.
- A summary of the argument that goes beyond repeating your section headings.
- The argument, with citations to authorities and the record, and a statement of the applicable standard of review for each issue.
- A short conclusion identifying the exact relief you want.
- A certificate of compliance when Rule 32(g)(1) applies, confirming the brief meets length limits.
The appellee’s brief follows the same structure but can skip the jurisdictional statement, issue statement, case statement, and standard-of-review section if the appellee accepts how the appellant presented them.2Legal Information Institute. Federal Rules of Appellate Procedure Rule 28 The appellant may file a reply brief, which needs its own table of contents and table of authorities but is otherwise more limited. No further briefs are allowed without the court’s permission.
Each circuit layers its own local rules on top of these federal requirements: font size, margins, word counts, and the order of internal sections. Check your circuit’s local rules early. A brief that fails formatting can be stricken or returned, costing time you may not have.
The Record Appendix
Rule 30 requires the appellant to prepare and file an appendix containing key parts of the lower-court record. At a minimum, it must include:3Legal Information Institute. Federal Rules of Appellate Procedure Rule 30
- The relevant docket entries from the proceedings below.
- Relevant portions of the pleadings, jury instructions, findings, or opinion.
- The judgment, order, or decision being appealed.
- Any other parts of the record either party wants the court to see.
The appendix must open with a table of contents showing where each part begins. Record materials appear in chronological order. When transcript pages are included, the original transcript page numbers must be shown in brackets. Lower-court legal memoranda should be left out unless they have standalone relevance beyond the arguments they contain.3Legal Information Institute. Federal Rules of Appellate Procedure Rule 30
This is where cases submitted on the briefs live or die. Judges who never hear from you in person rely heavily on the appendix to verify the facts. An incomplete or disorganized appendix can undermine even a well-written brief.
Deadlines
Rule 31 sets the default briefing schedule. The appellant files within 40 days after the record is filed. The appellee has 30 days after the appellant’s brief is served. A reply brief is due 14 days after the appellee’s brief is served, and must be filed at least 3 days before any scheduled argument.4Office of the Law Revision Counsel. Federal Rules of Appellate Procedure Rule 31
These are defaults. Local rules or court orders can shorten or extend them, and extension motions are common. Missing a deadline without permission can result in dismissal of your appeal or the striking of your brief, a risk that is especially severe when there is no oral argument to fill in gaps.
How You Learn Your Case Was Submitted on the Briefs
Under Rule 34(b), the clerk must notify all parties whether oral argument will be scheduled.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 34 When the panel decides argument is unnecessary, that notice is effectively your word that the case has been submitted. In most circuits the notification arrives through the electronic case filing system, so attorneys and registered parties receive it immediately.
Once the notice goes out, there is generally nothing left for you to do. The case is in the judges’ hands. Courts sometimes describe it as “under advisement,” which just means the panel is actively working through the decision. Do not expect further requests for information or any scheduled appearances.
How the Decision Comes Down
Each judge independently reviews the briefs, the appendix, and relevant portions of the record. Law clerks help by researching precedent and drafting internal memoranda on the central legal questions. After their individual reviews, the judges confer.
When the panel agrees, one judge is assigned to write the opinion. In cases involving straightforward legal issues, which describes many submissions on the briefs, the court may issue a short per curiam opinion rather than a lengthy signed decision. Turnaround times vary widely by circuit and case complexity; parties commonly wait several months for a written opinion. The decision is entered on the electronic docket and sent to all parties.
Unpublished Opinions
Many cases decided on the briefs result in unpublished opinions, sometimes labeled “not for publication” or “non-precedential.” They are far more common than the published opinions in the Federal Reporter. An unpublished opinion resolves your case just as finally as a published one. The difference is how it can be used afterward.
Rule 32.1 guarantees that unpublished opinions issued on or after January 1, 2007 can be cited in other cases, and no court may prohibit or restrict citation of them.5Legal Information Institute. Federal Rules of Appellate Procedure Rule 32.1 The rule says nothing about what weight a court must give an unpublished opinion; individual circuits set their own policies on precedential force. For unpublished opinions issued before 2007, circuit local rules still govern whether they can be cited at all.
If You Lose: Rehearing Options
An unfavorable opinion is not necessarily the end. Rule 40 lets any party petition for a panel rehearing within 14 days after judgment is entered.6Legal Information Institute. Federal Rules of Appellate Procedure Rule 40 – Panel Rehearing and En Banc Determination The petition has to identify specific points of law or fact that the court overlooked or misunderstood. A general expression of disagreement will not succeed; you need to pinpoint what the panel got wrong.
If a federal agency or government officer is a party, the deadline extends to 45 days.6Legal Information Institute. Federal Rules of Appellate Procedure Rule 40 – Panel Rehearing and En Banc Determination
A more aggressive option is petitioning for rehearing en banc, which asks the full court rather than the three-judge panel to reconsider the case. Under Rule 35, en banc rehearing is reserved for two situations: when the panel’s decision conflicts with the court’s own precedent or with Supreme Court decisions, or when the case raises a question of exceptional importance.7Legal Information Institute. Federal Rules of Appellate Procedure Rule 35 – En Banc Determination En banc rehearings are rare and courts describe them as “not favored,” but they act as a safety valve when a panel decision creates a split within the circuit.
If You Are Representing Yourself
Submission on the briefs raises the stakes for pro se litigants. You will not get a chance to explain your arguments out loud or respond to judges’ questions in real time. Everything rides on what you put on paper.
Some circuits require every party, including those without a lawyer, to file an oral argument statement within a set number of days after the final brief is served. Even if you want argument, the court may still resolve your case on the briefs. The clerk will notify you if that happens.
The federal rules apply equally to represented and unrepresented parties. Your brief must meet the same structural requirements under Rule 28, and your appendix must satisfy Rule 30.2Legal Information Institute. Federal Rules of Appellate Procedure Rule 28 Courts give pro se briefs some leeway on legal sophistication, but they will not excuse missing sections, blown deadlines, or an absent appendix. If you are handling your own appeal, the checklist above is the minimum the court expects before it will consider your case on the merits.