Waive oral argument?

MOSKOVITZ ON APPEALS

I've written a number of columns on oral argument in appellate courts -- how to prepare, how to deliver, etc. It occurred to me that I've yet to say much about whether to engage in oral argument at all -- or whether to waive it. So here goes.

This topic assumes you have a choice. In some appellate courts, you really don't.

• The 9th Circuit is not required to hold oral arguments, and they do so in fewer than 20 percent of their cases (civil and criminal combined). If yours is one of the few cases where they want it, you'd better do it.

• With very limited exceptions, the California Supreme Court and U.S. Supreme Court hear oral argument in all appeals. They do not ask counsel if they want to waive oral argument. Anyway, who would pass up a chance to argue in these courts? Thus, whether to waive oral argument is a live issue only when a California Court of Appeal asks you whether you would like to waive.

The law requires these courts to offer oral argument in all appeals -- but not for motions to dismiss appeals, petitions for writs of supersedeas, and the like.

But it seems that they hope that some parties will decline the offer. Unlike the California Supreme Court, our Courts of Appeal do not select cases that they will decide. A litigant who lost in the trial court has an absolute right to appeal to the Court of Appeal, and many litigants appeal when they don't have much of a chance of getting a reversal. The Court of Appeal is stuck with having to decide them -- and to offer oral argument -- even where an appeal is not complicated and pretty one-sided. So why spend scarce judicial resources on oral argument?

Their solution: A few months after the last brief (usually the appellant's reply brief) is filed, the Court of Appeal will send each party a letter requiring them to write to the court within a specified time period (usually about 10 days), requesting oral argument. No request, and you have waived. (The court's letter can't be too strong. See People v. Pena, 32 Cal. 4th 389, 403 (2004).)

Say you just received one of these "do you want to waive?" letters. What should you do?

For most attorneys, the response is automatic. "Of course I won't waive. Why pass up a chance to talk the court into ruling for me?" So in goes the request.

Not so fast. The request is likely to cost you something, and the potential benefit is questionable. Your client might be better off if you waive. So slow down and think it through.

Let's start with the potential benefit.

In the trial court, oral argument might win the motion (and sometimes the case). Superior court judges are overworked, don't have much support staff, and sometimes misunderstand the facts or the law. They might have skimmed the points & authorities and missed something. Oral argument might straighten them out. It costs your client a few bucks, but it's usually worth the investment. Of course, if the judge already issued a well-thought-out tentative decision, you might decide that oral argument is not worth it, because you're very unlikely to turn the judge around.

The appellate court looks nothing like this. The California Constitution requires the court to decide the case within 90 days after it is "submitted," but the court does not deem the case "submitted" until the end of oral argument (or after waiver of oral argument). Thus, they (with the assistance of their research attorneys) frontload the case. They take all the time they need to read the briefs, review the trial court record, perform legal research, and draft the opinion before oral argument.

After doing all that work -- and thinking about the case and what result is best -- it's unlikely that anything you say at oral argument will change their minds. Oral argument might get them to tinker a bit with the language of the draft opinion, but only rarely does it change the bottom line: affirmed or reversed.

But it does happen. Occasionally the justices will misunderstand a key part of the record, and you can use oral argument to straighten them out. (It would help if you could see the "tentative" opinion before orally arguing, but at present only one Court of Appeal -- District 4, Division 2, in Riverside -- will show it to you in every case, and the 1st District will do so in selected cases.) Once in a while, the Justices will be genuinely on the fence -- even after they've drafted the opinion -- and your oral argument might tip them off the fence. Or maybe two of the Justices disagree with each other, and your oral argument might persuade the third justice to go your way.

These are long shot possibilities, and -- at the moment you need to decide whether to waive -- you have no way of knowing whether any of them apply to your case. But what the hell. If they are possible, why not go for it?

Because of the possible cost.

Oral argument costs time -- both preparation time and time at the argument itself. Most attorneys charge their clients for this time.

And oral argument might also cause a significant delay in getting the appeal resolved.

It seems that most courts of appeal send the waiver notice only after they have already drafted an opinion. Members of my appellate team have confirmed this. Chris Cottle was Presiding Justice of the 6th District, Jim Ardaiz was Presiding Justice of the 5th District, and Bill Stein served as Associate Justice on the 1st District. Each of them told me that they sent out the waiver notice only after an opinion was drafted. If both parties waive oral argument, it is likely that the opinion will be issued more quickly, because the court will not have to schedule oral argument -- which usually only happens once or twice a month.

However, if either party requests oral argument, get in line! A lot of parties have requested oral argument, and you need to wait your turn -- unless your cases is entitled to "calendar preference." See Code Civ. Proc., Sections 44, 45, 1179a, Cal. Rules of Court, Rule 8.416.

The wait might be many months -- sometimes more than a year! Maybe your client needs a decision as soon as possible. He might be paying steep annual premiums on a bond staying enforcement of a judgment, or he might have set aside funds or postponed certain business decisions pending the outcome of the appeal.

Some appellate courts, however, might send out the waiver notice soon after the last brief is filed -- before they've drafted an opinion. In this situation, requesting oral argument might not delay the ultimate disposition much.

How can you tell which practice a particular division follows? If you receive the waiver notice within a month or two after the last brief is filed, they probably haven't drafted the opinion yet. If you receive the notice six months or more after the last brief is filed, they've probably already drafted the opinion.

The bottom line on waivers: Think carefully about it. Waiving oral argument might, in some cases, be best for your client.