Improving appellate oral arguments through tentative opinions and focus orders.

• Author: Kelsey, Susan L.
• Position: General Practice, Solo and Small Firm Law

One of the primary effects of oral argument is to give false hope to the losing party.

You're not likely to win your case through oral argument alone, but you sure can lose it there.

The best oral argument is the one you deliver in the car on the way home.

These and other truisms reflect some of the shortcomings of appellate oral arguments. Judges may have already made up their minds, yet during oral argument they engage in what hindsight proves to be merely polite conversation about the losing party's arguments. Advocates are imperfect, and imperfectly prepared, left to guess at what may be of concern to the court and risk the inability to produce the right answer on a moment's notice and under the stress of the event. Proper preparation for oral argument requires advocates to invest a large amount of time, at great expense, in order to be conversant on all conceivable facts and issues. Preparing for and attending oral argument likewise place significant demands on judges and court staff.

To what end, all of this time and money and effort? Certainly the court's goal is to reach the legally correct decision in every case. Advocates seek to advance their clients' positions within the limits of the law, or to advocate for changes in the law, and to fulfill their ethical responsibilities to both clients and courts. Parties want to secure the rights to which they are entitled under the law. All of these intertwined interests point to the same goal: getting it right--to interpret and apply the law correctly and to do justice.

Simple changes in court operations can make the oral argument process more effective in achieving the goals of correctness and justice. This article addresses two ways to improve appellate oral arguments--tentative opinions and focus orders.

Tentative Opinions

How would you like to receive a draft opinion before your oral argument? Two appellate courts issue unpublished tentative opinions. A tentative opinion is exactly what it sounds like: a court's tentative written disposition of a case, setting forth the ruling the court is inclined to make and the court's reasoning, but subject to revision, including complete withdrawal. The California Fourth District Court of Appeal, Division Two, has been using tentative opinions (tentatives) since 1990. (1) The court's website explains the benefits of its tentative opinion program as follows:

Tentative Opinion Program

Every court of appeal in California, and most intermediate appellate courts throughout the country, prepare a "bench memorandum" prior to oral argument. These memoranda often take the form of draft opinions and often become the final opinion of the court with little, if any, modifications. The great majority of appellate courts do not send the draft opinion to counsel prior to oral argument, and, as a result, counsel are completely unaware of the court's initial response to the arguments in their briefs and do not know how to focus their oral argument. Consequently, oral argument is often a dry, meaningless ritual in which counsel merely review the arguments set forth in their briefs.

To improve the quality and relevance of the oral argument experience, the justices of this court in October 1990 started mailing the preliminary draft of the opinion, which they called the "tentative opinion," to counsel seven to ten days before oral argument. As a result, the justices of this court have found oral argument more useful in assisting the court to reach a decision. The justices do not sense that their deliberations are any less objective than before the tentative opinion program began. Counsel almost unanimously praise the program.

Issuance of the tentative opinion before oral argument has significantly reduced the time spent on oral argument in two ways. First, argument has become more focused and taken less time as counsel can concentrate on the issues found significant by the court. Second, counsel often decide to waive oral argument once they see the court's tentative opinion. Thus, the program has increased both the quality and efficiency of the court resulting in a savings to taxpayers. (2)

In the California court's words, then, the benefits of issuing tentative opinions prior to oral argument are improved quality and relevance of oral argument, oral argument that is more useful in assisting the court to reach a decision, reduced time spent on oral argument, more focused oral arguments, reduced numbers of oral arguments, increased quality and efficiency of the court, and savings to taxpayers. (3)

The California court issues one of two different oral argument forms with its tentative opinions. (4) Neither form identifies the panel assigned to the case, and the tentative itself is anonymous as well. (5) One oral argument form, which the court calls a "number 1" letter, is used when the panel believes oral argument would be beneficial. (6) This letter invites the parties to participate in oral argument of 15 minutes or less to the side, directing counsel to respond to the tentative opinion...