Chester County lawyer Samuel C. Stretton. Courtesy photo

It seems so unfair and sets the wrong tone not to give argument when there are serious issues and consequences.

Is it fair that oral argument is not allowed on direct appeals by some appellate courts and what are the ethical obligations of appellate judges in reviewing direct appeal if argument is denied?

The appellate process for direct appeals has changed quite a bit since this writer first began practicing law in the 1970s in Pennsylvania. In those days, for instance, appeals to the Pennsylvania Superior Court almost always resulted in a precedential opinion. This practice changed in the 1990s when it suddenly became the exception to get a precedential opinion. Instead, memorandum opinions were used, which had no precedential value. By the 2000s, that was the norm. Even cases that had important or interesting issues oftentimes resulted in nonprecedential opinions or a memorandum opinion of the Superior Court. Perhaps, it is just the volume of cases, but the practice became very frustrating to advocates.

For instance, on a homicide case where someone has received life imprisonment or a substantial jail sentence for third degree murder, it is very disappointing when one prepares and argues a case and there are arguable issues, yet a nonprecedential opinion comes back. It certainly sends the wrong message to both the lawyer and the client that the court is not taking that case as seriously as perhaps it should. Obviously, that is not the case, but it certainly raises serious concerns among criminal defendants and their families when serious cases are decided by memorandum decisions. After 20 to 25 years with the Superior Court where the bulk of Superior Court decisions are memorandum opinions, everyone has gotten used to it, but the outrage in the 1990s felt by lawyers still exists. The Superior Court still gives oral argument to everyone who requests argument and that is significant.