Few appeals present issues with such clarity that oral argument would add nothing to the briefs, as brilliant and complete as they may be. After all, the lawyers brief what they see as the important issues. Occasionally, courts have a different view of what is important, which the briefs may not adequately address. Moreover, oral argument can flesh out issues in close cases. I have heard a number of jurists say that they were persuaded to take a different position after oral argument. Voluntarily waiving oral argument thus deprives the appellant of an additional opportunity to persuade the court that he is on the side of truth, goodness, and right.

Oral argument, however, is not without costs. When, as has often been the case, the Appellate Court is bearing a heavy docket, the time from completion of the briefs and the filing of the record to oral argument may run six months or more, adding further delay to the resolution of the matter. Also, proper preparation for oral arguments requires reviewing the record, the briefs, and the pertinent cases. The time to do this properly can add up. Clients who balk at the potential delay and preparation costs might consider the following statistics.

Overall, less than 20% of the published opinions of the Appellate Court in the last few years have resulted in reversals. Comparing the reversal rate for argued cases and cases decided on the briefs reveals that waiving oral argument is risky business. In 2003, the reversal rate for argued cases was about 22%, while only 6% of cases submitted on briefs resulted in reversals. Thus, the odds that an appellant will win an appeal decrease dramatically in the absence of oral argument. Therefore, the decision to waive oral argument voluntarily should not be taken lightly.

Sometimes the court removes the decision regarding oral argument from the appellants. The staff attorneys at the Appellate Court routinely review cases to identify those that may be disposed of without oral argument. The Court then so notifies the appellant by letter. If the appellant still wants oral argument, she must request a hearing on the Court’s motion calendar at which she will be given five minutes to explain why oral argument is necessary. Because the published opinions do not indicate whether disposition on the briefs was voluntary, it is impossible to know how many of the cases disposed of on the briefs were so decided over the appellant’s objections.

So what should appellants do if they receive one of these we-don’t-need-to-hear-from-you-to-decide-the-case letters? That, of course, depends on the strength of the appeal. A case usually is decided without oral argument only if the outcome is quite obvious. Most of the time, the trial court’s judgment is affirmed. Therefore, if the case is weak, any hope of saving it will depend on oral argument, which should be vigorously sought. If this doesn’t work, appellants should consider settling and cutting their losses.

On the other hand, if a cold, objective, hardnosed assessment convinces the appellant that he is going to win, and the appellant is not faint of heart, it may very well be worthwhile foregoing oral argument. Despite the usual deference to trial court judgments, the Appellate Court recognizes that, from time to time, a trial court makes an obvious error that requires trial reversal.

For example, the court in Detar v. Coast Venture XXVX, Inc., 74 Conn. App. 319 (2002), failed to apply an unambiguous contract clause on liquidated damages. Similarly, in Mountainview Plaza Assocs., Inc. v. World Wide Pet Supply, Inc., 76 Conn. App. 627 (2003), the trial court improperly ignored the pleadings where the defendants were defaulted and concluded that the plaintiffs failed to prove liability against two of the defendants. Another example is Cowles v. Cowles, 71 Conn. App. 24 (2002) (per curiam), in which the trial court failed to render a decision in the statutory time for doing so. (The author represented the plaintiff in Cowles.)

If you have an appeal where the error below approaches the blatantly obvious, and you are comfortable that you have thoroughly briefed it, then it might not be worth fighting for oral argument. However, those are extremely rare situations, and the decision to waive oral argument should not be made lightly lest you give up an opportunity to win.