Tentative oral opinions: improving oral argument without spending a dime.

• Author: Stein, Joshua
• Position: California

1. INTRODUCTION

   This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California's Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the "oral tentative," represents an attractive alternative to the written version, which has failed to catch on in other courts.

   After an overview of the California appellate system, this article details the history of the tentative opinion in both the Second Division of the Fourth District and the Eighth Division of the Second District. It then outlines the preliminary skepticism with which the oral tentative has been met and explores its advantages. Some of those benefits are shared with its written counterpart, but others are unique to the oral tentative in ways that seem to make it a smart choice for appellate courts in Califonia--and perhaps for appellate courts across the country as well.

2. THE CALIFORNIA APPELLATE SYSTEM

   1. The Courts

      As is true of many state court systems, "the California state court system is structured something like a pyramid." (1) The trial courts rest at the foot of the pyramid, while the appellate courts sit in the middle across six districts. The seven-justice California Supreme Court is at the apex.

      For over a hundred years, the Courts of Appeal have "assist[ed] the California Supreme Court in administering justice." (2) They have the final word in ninety-five percent of the cases they hear, as they were established to handle appeals in the "ordinary current of cases," (3) which includes all Superior Court appeals not specifically within the jurisdiction of the California Supreme Court. (4) Appeals in the "great and important cases were thus left to the Supreme Court." (5)

      As is true in most jurisdictions, outcomes at the appellate level in California are, by and large, faits accomplis because "an appellant winning is the old journalistic definition of news: Man bites dog." (6) But even in California, a rare few appeals remain unresolved after intermediate review, generating further appeals to the California Supreme Court. (7)

      California's appellate courts are divided into six districts, some of which have dockets so busy that they are further separated into divisions. Districts Twos (8) and Four, (9) which are the focus of this paper, consist of eight and three divisions, respectively. The divisions in these two districts typically consist of four justices, but only three preside over a given case.

   2. The California Constitution's Ninety-Day Rule

      California appellate courts have good reason to consider innovating, as they are all constitutionally bound to decide cases within ninety days of the month of submission. (10) This, combined with the fact that the California Constitution gives litigants oral argument by right, (11) forces appellate judges to adhere to a strict schedule. The ninety-day law hits judges in their wallets if they do not follow it, providing that "[i]f a case remains pending and undetermined for 90 days or more after its submission for decision, the justices on the panel to which the case is assigned cannot receive their salaries." (12) The California Practice Guide spells out this rule in detail:

      The justices are paid at the end of each month. To receive their salaries, they must execute an affidavit, several days before the end of each month, stating that no cause before them remains pending and undetermined for 90 days or more after submission. (13) The ninety-day rule makes it practically impossible for appellate judges to draft opinions from scratch after hearing oral argument because the argument typically occurs too close to the end of the ninety-day period to allow time for that. In fact, "everything about how all of the California appellate courts prepare their cases for argument and then decision is driven by the ninety-day rule." (14) Appellate justices in nearly every division in California sit for oral argument with a printed--and nearly final--draft of the opinion in front of them. (15) Of all the divisions in all the districts in California, only one lets the parties catch a glimpse of that draft opinion in advance of oral argument: the Second Division of the Fourth District. And only one lets the parties know on argument day what is likely to be in that opinion when it becomes final: the Eighth Division of the Second District.

3. THE ADVENT OF WRITTEN AND ORAL TENTATIVES

   1. District Four's Second Division." Written Tentatives

      In 1975, a Justice of Division Two proposed releasing draft opinions in advance of oral argument. (16) As he expected, however, nothing came of the proposal: "When the subject of pre-calendar circulation of tentative opinions is raised at meetings of appellate judges, it is as welcomed as a porcupine at a dog show. There is loud noise, but no one wants to get close to the intruder." (17) He knew his colleagues well. It was not until fifteen years later that a court had the right combination of chutzpah and a crowded-docket crisis to try tentative opinions.

      In 1990, Division Two of the Fourth District became the first court in California to systematically disseminate draft opinions in advance of oral argument. (18) The written tentative, spearheaded by Presiding Justice Thomas Hollenhorst, was born of necessity:

      We were basically trying to handle the volume of maybe six or seven judges with three people on board ... I can tell you from looking back on it they were horrible days. My personal record was 315 personal opinions filed in one year by myself. (19) Short of judges and time, the court took drastic measures to stem the rising tide of cases awaiting argument, opting to send out draft opinions accompanied by waivers discouraging the parties from pursuing oral argument. Publicly, the court explained that the new procedure was for the sake of the parties, not its own efficiencies, adding this notice to its website:

      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. (20) And in fact, lawyers and clients saw the benefits of the new approach almost immediately. As one commentator noted, "counsel felt that once the tentative decision was received, the decision to proceed with oral argument became easier, and could be discussed with clients in light of the cost savings that accompany waiver of oral argument." (21)

      If there was no agreed-upon opinion, the court would send out focus letters--a practice other California courts turn to sporadically--notifying the parties that "[e]nclosed is a memorandum agreed on by the three justices on the panel hearing the appeal describing the key issues disputed among the panel members. Limit and focus your argument accordingly." (22) This gambit worked. The tentatives discouraged parties from coming before the court for oral argument when the case had been decided or from using all of the time they had been allotted. The court concluded that

      [t]he program ... "significantly reduced the time spent on oral argument" because "argument has become more focused and taken less time as counsel can concentrate on the issues found significant by the court," and "counsel often decide to waive oral argument once they see the court's tentative opinion." (23) When the judges were unanimous in their tentative opinion, the court even offered strong hints in the form accompanying its draft opinion. This let the parties know when argument was not worthwhile by suggesting that oral argument was likely to be futile. But so strong were these admonitions against oral argument that the Second Division actually found itself embroiled in an appeal to the California Supreme Court, which held that the systematic use of strongly worded waiver notices to encourage parties to forego oral argument violated the due process provisions of the California Constitution.

      The California Supreme Court endeavored to explain, however, that the impropriety lay in the use of waiver notices and the strong discouragement of oral argument, not in the use of tentative opinions. Indeed, it noted that "[t]he Court of Appeal's adoption of a procedure under which it prepares and provides the parties with a tentative opinion prior to oral argument does not in itself improperly interfere with the right to present oral argument on appeal." (24) Acknowledging that it did not want to "discourage[e] experimentation ... to streamline the appellate process," (25) and that it "applaud[ed] innovations," the California Supreme Court "simply conclude[d] ... that the particular waiver notice employed here is not a proper streamlining device" (26) and "direct[ed] the Court of Appeal to refrain from using this notice in future cases." (27) The Supreme Court also made clear that it had already considered and rejected "the suggestion that a defendant receives a 'less meaningful' hearing when the court prepares a tentative opinion," (28) and drew another distinction between the acceptable and the unacceptable: the tentative opinion had to be "truly" tentative. (29)

      The Court did not equivocate on one key point. The tentative opinion was not by itself a constitutional concern. It cuts costs and it gives lawyers the ability to prepare better, more focused arguments. And yet, the written-tentatives practice of District Four's Division Two has spawned no California imitators. (30) Justice Hollenhorst nevertheless remains both...