Not Tentative About Tentatives: Three Perspectives on Tentative Appellate Opinions

• Jurisdiction: California,United States
• Citation: Vol. 32 No. 2
• Publication year: 2019
• Author: By Justice Carol D. Codrington & Yoginee Braslaw

Not Tentative About Tentatives: Three Perspectives on Tentative Appellate Opinions

Part 1: The Fourth District, Division Two's Pioneering Tentative Opinions Program

By Justice Carol D. Codrington & Yoginee Braslaw

Justice Carol D. Codrington was nominated in 2010, unanimously confirmed by the Commission on Judicial Appointments and confirmed by the electorate. She is the first African American to serve in the Fourth District Court of Appeal. Prior thereto, Justice Codrington was appointed to the Riverside Superior Court in 2007. As a trial judge, she presided over various civil and criminal assignments.

Yoginee Braslaw is a Senior Research Attorney for the Court of Appeal, Fourth Appellate District, Division Two, located in downtown Riverside. She has been a research attorney for Division Two since January 4, 1999, and has worked on over 1,600 cases during her time at the court.

In the trial courts, tentative rulings are welcomed and even applauded. California Rules of Court, rule 3.1308 allows superior courts to issue tentative rulings in civil law and motion matters provided there is a tentative ruling procedure and notice of that procedure in the local rules, the procedure is uniform within the court or branch, and the rule does not require tentative rulings. A trial court that offers tentative rulings must follow certain procedures to ensure that the parties have notice and an opportunity to appear should they elect to challenge the ruling. The tentative ruling may note any issues that the court wishes the parties to address at the hearing. This procedure must not require the parties to give notice of intent to appear, and a tentative ruling shall not automatically become the court's ruling if such notice is not given. The tentative ruling or any other ruling the court may render will not become the final ruling of the court until after the hearing.

There is no corresponding rule for the Courts of Appeal and tentative opinions have remained one of the most controversial topics in appellate practice. Whether they are a good idea or a bad idea depends on whom you ask. Appellate practitioners generally embrace and applaud tentative opinions. Those in favor of tentative opinion programs appreciate the release of draft opinions before oral argument. Proponents assert that it allows counsel to challenge the decision in a meaningful way and promotes a more focused and robust oral argument. Tentative opinions provide insight into the justices' thinking. Opponents argue that tentative opinions undermine the importance of oral argument because they are taken as final and may prompt litigants to waive oral argument unnecessarily. There is also the perception that once a tentative opinion is drafted, there is little hope of changing the disposition. But a tentative opinion is just that—a tentative or a draft opinion that can be modified after oral argument.

The Fourth District Court of Appeal, Division Two, has been using tentative opinions since 1990. The tentative opinion process was created by Justice Thomas Hollenhorst in the spring of 1990 with the support of Justices Douglas McDaniel, Howard Dabney, and Robert Timlin. The justices decided to try the tentative opinion process as an experiment, since, at that time, appellate tentative opinions were unheard of and novel to the legal community. As Justice Hollenhorst noted in his article, Tentative Opinions: An Analysis of Their Benefit in the Appellate Court of California (1995) 36 Santa Clara Law Review 1, 12, when Justice Robert S. Thompson suggested the release of draft opinions in 1975, the proposal was not well received. However, currently, based on surveys, appellate attorneys almost unanimously commend the tentative opinion program.

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The role model for the Fourth District's tentative opinion program was the Tentative Opinion Program in Division Two of the Arizona Court of Appeals. The Fourth District did not simply copy the Arizona program but modified it to better fit the court. The Fourth District provided full preliminary draft opinions or tentative opinions that were generated by the entire panel. Thus, litigants were supplied with tentative opinions knowing whether all three panel members concurred in the draft of the opinion. This in turn assisted counsel in deciding whether to continue with their request for oral argument and/or to further refine their strategy for oral argument.

The Fourth District originally provided tentative opinions seven to ten days before oral argument. As a result, it was necessary to assign cases earlier because the preparation time in chambers was shortened by the need to have cases ready for distribution to other panel members early in the month. Furthermore, after calendar conference and before release of the tentative opinion, some modification frequently occurred, and the opinion needed to be cite-checked. To allow staff to catch up with any non-tentative opinion cases, the court decided to begin the first month of oral argument using tentative opinions in only half of the cases.

Initially, once a tentative opinion was issued, counsel had to confirm by 3:00 p.m. on Monday, the day before Tuesday's oral argument, whether counsel desired or waived oral argument. This resulted in a heavy calendar with 35 to 40 cases on calendar for oral argument. In addition, at that time, everything was entered manually, there were no citations to the record, and the court was without today's technological advances. Accordingly, implementing the tentative opinion program was an administrative nightmare that required fine-tuning.

Over time, however, incremental changes were made to the tentative opinion program spearheaded by Presiding Justice Manuel Ramirez, who had joined the court only a year after the tentative opinion program was adopted. The changes allowed for a more streamlined process with a significantly beneficial timeline with full citations included in the tentative opinions. The...