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Publications
Tentative Opinions and the Right to Oral Argument on Appeal
Any appellate practitioner will tell you that most appeals are decided on the strength of the written briefs. Oral argument before the appellate court typically takes no more than 20 or 30 minutes, often less. In contrast, the parties may spend months, especially in complex cases, drafting and honing their appellate briefs, conducting the research, and reviewing the often lengthy record of the proceedings below. Virtually all of California's intermediate appellate courts have a written bench memorandum prepared in advance of oral argument, based solely on the parties' briefing, and that memorandum often takes the form of a draft opinion.
However, that is not to belittle the importance of argument. "[O]ral argument — the chance to make a difference in result — is extremely valuable to litigants. If oral argument is to be more than an empty ritual, it must provide the litigants with an opportunity to persuade those who will actually decide an appeal." Moles v Regents of Univ. of Cal. (1982) 32 C3d 867, 872, 187 CR 557. Despite all the care taken in preparing briefs, important points may be lost or misunderstood, or facts misconstrued, by the court in its opinion on the merits. Argument provides counsel with a valuable opportunity to correct these misimpressions and to nip mistakes in the bud.
One of California's intermediate appellate courts has adopted a unique and valuable procedure to make the argument even more meaningful. The Fourth District, Division Two (Riverside) issues tentative opinions and provides them to counsel in advance, giving the litigants helpful input on whether to waive argument. Any appellate specialist will tell you this is a wonderful tool. Counsel knows beforehand where the court is going, what problems it is having with the issues raised, and the assumptions and reasoning underlying the panel's conclusions. With the tentative opinion in hand, the attorney can use oral argument to effectively and efficiently zero in on problem areas, providing meaningful dialogue on what the panel considers to be key points.
According to the Riverside court's web site, the program has "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." Innovative Programs at 4th District, Division 2, Tentative Opinion Program, http://www.courtinfo.ca.gov/courts/courtsofappeal/4thDistrictDiv2/programs.htm/htm (as of Mar. 30, 2004).
Few appellate practitioners would disagree. Riverside's tentative opinion procedure has received rave reviews from appellate specialists around the state, including the author of this column. And from personal experience, I can say that this is a court that takes argument seriously and has often changed its tentative opinion after hearing from counsel.
However, the California Supreme Court recently weighed in on the Riverside procedure, not for its use of tentative opinions, but because of the notice that accompanies those tentatives. In People v Pena (2004) 32 C4th 389, 9 CR3d 107, the high court held that the notice created a real potential to interfere with a party's proper exercise of the right to present oral argument on appeal. Pena concluded that the language of the notice suggested too strongly that (1) the appellate court already had finally decided the case on the briefs and would not be affected [PAGE 62] by oral argument, and (2) appellate counsel might face adverse consequences if oral argument were requested.
Pena was an appeal from a criminal conviction. Once briefing was complete, the Riverside court of appeal sent a tentative opinion proposing to reject defendant's claims and affirm his conviction, along with a notice that stated, in relevant part:
Enclosed is the tentative opinion of a majority of the three-justice panel.… The court has determined that (1) the records and briefs adequately present the facts and legal arguments, (2) oral argument will not aid the decision-making process, and (3) the tentative opinion should be filed as the final opinion without oral argument in the interests of a quicker resolution … and the conservation of scarce judicial resources.
32 C4th at 394. The notice went on to state that scheduling of oral argument "regularly delays filing of the opinion for six to ten weeks" and as much as five months if the case is continued. People v Pena, supra (emphasis omitted). And the document stated, in bold capital letters, that "counsel must read and comply with this notice." The notice went on to say that argument would be deemed waived unless defendant requested it within 12 days, no relief from default would be granted under any circumstances, counsel "may not repeat arguments" made in the briefs, and sanctions could be imposed for noncompliance. People v Pena, supra.
Included with the notice was a form repeating that "the court has decided that oral argument will not aid the decision-making process" (emphasis in original) and that if, despite this, defendant wanted oral argument, it must be requested within 12 days.
Pena found that the notice suggested the court of appeal had already decided the case without oral argument and that argument, if requested, would not affect the court's decision. Thus, the notice had the potential to improperly discourage the exercise of the right to present oral argument on appeal. In other words, the unanimous supreme court took issue with the language that the Riverside court "has determined that … oral argument will not aid the decision-making process" as suggesting that the panel had already decided the issues and thus argument would be pointless. 32 C4th at 402 (emphasis as modified by court). Though litigants can, and often do, waive oral argument, Pena concluded that the notice went too far in discouraging argument.
The unanimous opinion also criticized the notice's language prohibiting counsel from repeating points raised in the appellate briefs. This, Pena concluded, created a Hobson's Choice, because, strictly speaking, points not raised in the appellate briefs may be deemed waived. 32 C4th at 403. Thus, the literal language of the notice said the appellate court had already decided the issues raised in the brief were unpersuasive, and that no new issues could be raised, suggesting there was no point to having oral argument, especially since sanctions might result. Exercising its supervisory power over California courts, Pena directed Riverside to refrain from using this notice in future cases. People v Pena, supra.
Nonetheless, Pena took pains not to criticize Riverside's tentative opinion procedure or other procedural innovations designed to streamline the appellate process:
We are mindful that the appellate courts of this state face an increasing caseload [citation] in the face of an uncertain financial climate. We applaud innovations, such as the tentative opinion program adopted … here, that are initiated to maintain the quality and integrity of the judicial process in spite of these obstacles. We simply conclude … that [this particular waiver notice] is not a proper streamlining device.
32 C4th at 404.
That final comment was most welcome. Riverside's tentative opinion procedure should be encouraged. It makes appellate oral argument a far more effective tool, and allows for meaningful dialogue with a court that is willing to listen and change its collective mind when appropriate. Though the notice procedure was found unsuitable here, the Riverside court was rightly applauded for its innovative and valuable tentative opinion procedure.
For further information, contact:
Christina J. Imre
Sedgwick, Los Angeles
213.615.8049
This material is reproduced from California Civil Litigation Reporter, copyright 2004 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit their Web Site, http://ceb.com/.
Christina J. Imre is a partner in Sedgwick's Los Angeles office. An appellate lawyer with more than 20 years of experience, Ms. Imre specializes in civil appeals, writs and post-trial motions in bad faith, health care (including managed care), business torts, and institutional matters of significance to major corporations and insurers.
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