When most people think about a trial, a fiercely contested oral argument is one of the first things that comes to mind. There is a good reason for that: Oral arguments are important. The Supreme Court of the United States states that oral arguments are spoken presentations of the case. That being said, appellate law is a lot different than trial law. An appeal is mainly about the written argument. 

This raises an important question: Should I waive the right to an oral argument on appeal? The answer is case-specific and fact-specific. In this article, our appellate lawyers explain the key things that you know about oral arguments and appeals, including the factors that you need to consider when deciding whether or not to waive your right to an oral argument. 

Background: Appeals are Primarily About Written Arguments, not Oral Arguments 

Oral arguments are a huge part of any trial. A strong litigator needs to be able to present a compelling and persuasive case during an oral argument. However, appellate law proceeds far differently than trial law—and the reduced importance of oral arguments is one of the key differences. 

Indeed, criminal appeals, civil appeals, and family law appeals are heard primarily on paper. That is to say that the appellate court will be primarily focused on the strength of the arguments made in each party’s appellate brief. Oral arguments can still be important in an appeal—but the case will generally be determined primarily by a review of the trial record and the appellate briefs. 

What Does It Mean to Waive a Right in a Legal Case? 

Before you truly consider waiving the right to oral argument, it is imperative that you understand what exactly that decision entails. The Cornell Legal Information Institute explains that waiving a right is the “act of voluntarily giving up” something. In other words, a party that waives its right to an oral argument in a criminal appeal or civil appeal is effectively deciding not to go through an oral argument, even though they have the option to do so. 

Should You Waive Your Right to Oral Argument on Appeal? It Depends

Here are some key considerations to keep in mind when deciding whether or not to waive your right to oral argument on appeal:  

  • Reason Not to Waive It—Lose Opportunity to Clarify Key Issue: The American Bar Association (ABA) that oral arguments in appellate law cases are really better thought of as conversations rather than presentations. By waiving your right to oral argument on appeal, you may lose the chance to clarify a key legal matter before a judge. 
  • Reason Not to Waive it—Other Party Retains Right to Oral Argument: You cannot waive oral arguments for both parties. If you opt to waive your right to oral argument, that does not automatically mean that the other party loses its right to make an oral argument. 
  • Reasons to Waive it—Oral Argument May No Value in Some Appeals: Not all oral arguments in appellate law cases are especially valuable. It may be reasonable to waive your right to an oral argument if the matter has legal tangible value (straightforward procedural legal issue with a clear argument in the appellate brief). 
  • Reason to Waive it—Preparation Takes Time and Cost Money: It takes time and money to prepare for an oral argument in an appellate court. The main reason why parties opt to waive their right is as a cost-saving measure.  

Summary: Appellate law is primarily focused on written arguments (appellate briefs). Indeed, some appeals are adjudicated after a written review alone. That being said, it is not uncommon for criminal or civil appeals to be selected for oral arguments. A party may waive their right to oral argument on appeal. The primary benefit of doing so is as a cost-saving measure. However, there are some clear disadvantages that come with waiving your right to oral argument. 

Get Help From Our Appellate Law Attorneys Today

At The Appellate Law Firm, our appellate lawyers have the professional expertise that you can count on. If you have any specific questions or concerns about oral argument and appellate law, we are here to help. Call us now or connect with us online to set up your strictly confidential case evaluation. Our firm handles criminal, civil, and family appeals in many jurisdictions, including Washington, Oregon, California, Texas, Georgia, Florida, Michigan, and Pennsylvania.

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