Tentative Oral Opinions: Improving Oral Argument without Spending a Dime
Stein, Joshua, Journal of Appellate Practice and Process
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.
II. THE CALIFORNIA APPELLATE SYSTEM
A. 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.
B. 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. …