Tentative Opinions in the Appellate Courts and the Chance to Make a Difference in Your Oral Argument

Division Two of the Fourth District in the California Court of Appeal uses tentative opinions. There is certainly an advantage for appellate lawyers because it allows them to focus on the main issues that the court deems important during oral argument. Most appellate practitioners would agree – the feedback that I’ve received from our clients is largely positive.

On the other hand, the danger is that these tentative opinions are taken as final and may prompt litigants to waive oral argument unnecessarily. There is a California Supreme Court case on point: People v. Pena, (2004) 32 Cal. 4th 389. However, the main objection that the Court raised in Pena was not to the tentative opinion itself, but to the notice that accompanied the tentative opinion. The Court ruled that the notice was too strongly-worded in discouraging oral argument because it stated that “oral argument will not aid the decision-making process.” 32 Cal. 4th at 402.

Ultimately, the Court praised the program, but not the notice component: “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 Cal. 4th at 404.

Despite the validation from the California Supreme Court, there is only one other California appellate court which offers tentatives. The Second District, Division Eight offers tentatives, but they are oral and issued from the bench at the onset of oral argument. The idea is to make oral argument more relevant to the core issues without having to invest in a written draft opinion.

This seems like a good compromise between issuing fully fleshed-out tentative opinions versus no tentative at all. This has also been well-received and I believe tentative opinions will be used more frequently to aid the justices as well as the appellate attorneys.

Tagged: Appellate Practice, Appellate Procedure, California Court of Appeal