December 18, 2013
In this article in the Journal of Appellate Practice and Process, Yale law student Joshua Stein examines the practice of issuing tentative opinions before oral argument, which has been adopted by certain California appellate courts. He compares the Fourth District, Division Two’s approach of issuing written tentatives with that of the Second District, Division Eight, which, in the last couple of years, has begun issuing mostly oral tentative rulings at the commencement of oral argument. Stein notes that “[t]he chief advantage that both types of tentatives afford to lawyers on the losing side is one last chance. . . . Because of this urgency, tentatives make oral argument more meaningful for appellate judges, enabling courts to cut to the chase without wasting time.” Stein ultimately concludes that, while both types of tentative opinions “have the potential to improve oral argument,” oral tentatives have certain advantages. Specifically, they require less of the court’s time (and are thus cheaper), they avoid any judicial reluctance about issuing written tentative opinions subject to change, and they encourage appellate lawyers to prepare fully for oral argument (because counsel will not learn of the court’s oral tentative until the day of argument).
It cannot be gainsaid that the appellate bar greatly appreciates tentative opinions because they sharpen and focus oral argument, as noted in this recent post by the Southern California Appellate News. But what does the Supreme Court think of the practice? Nine years ago, in People v. Pena (2004) 32 Cal. 4th 389, 404, former Chief Justice Ronald M. George wrote for a unanimous Court: “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 by the Court of Appeal here, that are initiated to maintain the quality and integrity of the judicial process in spite of these obstacles.” (Emphasis added.) Does this mean one day we might see the Supreme Court issue its own (possibly oral) tentatives? That’s hard to say. The makeup of the Court has changed significantly since Pena was decided, with three justices, including Chief Justice George, having stepped down. To our knowledge, Chief Justice Tani Cantil-Sakauye has not yet expressed her views on the practice.