It shall not be necessary for any party to expressly reserve in oral argument any argument made on brief before an appellate court and failure to raise any such argument on oral argument shall not constitute a waiver.
§ 8.01-679.1.Arguments made on brief not waived by oral argument.
Chapter 26.2. Appeals Generally · Article 3. Limitations; Hearing and Decision · Last amended 1986 · Last verified July 16, 2026
In one sentenceSection 8.01-679.1 confirms that any argument a party raises in its brief before an appellate court remains preserved for decision even if counsel does not repeat or mention it during oral argument, so failing to bring it up out loud carries no penalty.
Full Text of § 8.01-679.1
Plain-English Summary
Section 8.01-679.1 removes a trap that could otherwise punish a lawyer for running out of time at the podium. It is not necessary for any party to expressly reserve, in oral argument, any argument already made on brief before an appellate court, and failing to raise that argument during oral argument does not constitute a waiver of it.
The practical effect is to let counsel spend oral argument on whatever points seem most useful to emphasize, without worrying that silence on a particular brief argument will be read as abandoning it.
Frequently Asked Questions
If my lawyer does not mention an argument during oral argument, is it waived?
No, not if the argument was already made on brief — the section says failure to raise it on oral argument does not constitute a waiver.
Does this section require reserving arguments during oral argument?
No. It states that it is not necessary to expressly reserve, in oral argument, an argument already made on brief.
Does silence at oral argument count against an argument made in the brief in any way?
No, under this section, failure to raise it at oral argument does not constitute a waiver.
Which courts does this rule apply to?
The section refers broadly to "an appellate court," without limiting itself to a single court.
Does this section protect arguments that were never raised in the brief at all?
No. It addresses only arguments already made on brief before the appellate court.
Amendment History
1986, c. 268.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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