Improving Appellate Oral Arguments Through Tentative Opinions and Focus Orders
One of the primary effects of oral argument is to give false hope to the losing party.
You’re not likely to win your case through oral argument alone, but you sure can lose it there.
The best oral argument is the one you deliver in the car on the way home.
These and other truisms reflect some of the shortcomings of appellate oral arguments. Judges may have already made up their minds, yet during oral argument they engage in what hindsight proves to be merely polite conversation about the losing party’s arguments. Advocates are imperfect, and imperfectly prepared, left to guess at what may be of concern to the court and risk the inability to produce the right answer on a moment’s notice and under the stress of the event. Proper preparation for oral argument requires advocates to invest a large amount of time, at great expense, in order to be conversant on all conceivable facts and issues. Preparing for and attending oral argument likewise place significant demands on judges and court staff.
To what end, all of this time and money and effort? Certainly the court’s goal is to reach the legally correct decision in every case. Advocates seek to advance their clients’ positions within the limits of the law, or to advocate for changes in the law, and to fulfill their ethical responsibilities to both clients and courts. Parties want to secure the rights to which they are entitled under the law. All of these intertwined interests point to the same goal: getting it right — to interpret and apply the law correctly and to do justice.
Simple changes in court operations can make the oral argument process more effective in achieving the goals of correctness and justice. This article addresses two ways to improve appellate oral arguments — tentative opinions and focus orders.
How would you like to receive a draft opinion before your oral argument? Two appellate courts issue unpublished tentative opinions. A tentative opinion is exactly what it sounds like: a court’s tentative written disposition of a case, setting forth the ruling the court is inclined to make and the court’s reasoning, but subject to revision, including complete withdrawal. The California Fourth District Court of Appeal, Division Two, has been using tentative opinions (tentatives) since 1990.1 The court’s website explains the benefits of its tentative opinion program as follows:
Tentative Opinion Program
Every court of appeal in California, and most intermediate appellate courts throughout the country, prepare a “bench memorandum” prior to oral argument. These memoranda often take the form of draft opinions and often become the final opinion of the court with little, if any, modifications. The great majority of appellate courts do not send the draft opinion to counsel prior to oral argument, and, as a result, counsel are completely unaware of the court’s initial response to the arguments in their briefs and do not know how to focus their oral argument. Consequently, oral argument is often a dry, meaningless ritual in which counsel merely review the arguments set forth in their briefs.
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. As a result, the justices of this court have found oral argument more useful in assisting the court to reach a decision. The justices do not sense that their deliberations are any less objective than before the tentative opinion program began. Counsel almost unanimously praise the program.
Issuance of the tentative opinion before oral argument has significantly reduced the time spent on oral argument in two ways. First, argument has become more focused and taken less time as counsel can concentrate on the issues found significant by the court. Second, counsel often decide to waive oral argument once they see the court’s tentative opinion. Thus, the program has increased both the quality and efficiency of the court resulting in a savings to taxpayers.2
In the California court’s words, then, the benefits of issuing tentative opinions prior to oral argument are improved quality and relevance of oral argument, oral argument that is more useful in assisting the court to reach a decision, reduced time spent on oral argument, more focused oral arguments, reduced numbers of oral arguments, increased quality and efficiency of the court, and savings to taxpayers.3
The California court issues one of two different oral argument forms with its tentative opinions.4 Neither form identifies the panel assigned to the case, and the tentative itself is anonymous as well.5 One oral argument form, which the court calls a “number 1” letter, is used when the panel believes oral argument would be beneficial.6 This letter invites the parties to participate in oral argument of 15 minutes or less to the side, directing counsel to respond to the tentative opinion and avoid “unreasonable” repetition of arguments made in the briefs and prohibiting supplemental briefing.
The second form that may be issued with a tentative opinion is a “number 2” letter.7 This letter includes the same limitations as the number 1 letter, but differs from the number 1 letter by asking the parties to consider waiving oral argument based on the tentative opinion unless counsel concludes that oral argument might persuade the court to change the tentative opinion. The number 2 letter represents the panel’s current stance as follows:
The court is not unalterably bound by the tentative opinion and is willing to amend or discard the tentative opinion if counsel’s arguments persuade the court that the tentative opinion is incorrect in any way. However, at present, in this case the court believes that the record and briefs thoroughly present the facts and legal arguments such that the court is prepared to rule as set forth in the tentative opinion without oral argument.8
The current presiding justice of the California court, Manuel A. Ramirez, joined the court only one year after the tentative program was adopted and has remained the primary manager of the program, as well as an enthusiastic proponent of the use of tentatives. He reports that the tentative program began as a means of managing a large case load, coupled with a state law making oral argument a right and not discretionary. Issuance of the tentative allows counsel to confer with their clients on the advisability of expending the time needed to prepare for and deliver oral argument, and allows for more focused preparation in those cases that proceed to argument. Oral argument is waived in approximately 65 percent to 80 percent of cases in which tentatives are issued, particularly in criminal cases, and very few litigants seek rehearing. The program saves both public and private resources, while fine-tuning the oral arguments that do occur.9
The Arizona Court of Appeals, Division Two, was first to initiate a similar policy of releasing tentative or draft opinions prior to oral argument.10 Unlike the California court, the Arizona court allows either party to refuse distribution of the tentative opinion:
Parties will receive a notice, advising them whether a request for oral argument was granted and, if so, the date and time of the argument. The parties will be asked at that time whether they do not want a draft decision provided in advance of argument. The draft is prepared by one of the three judges of the panel to which the case has been assigned. A party who does not want a draft decision must notify the court in writing within 10 days of the date of the order granting oral argument. 11
If either party does not want the tentative distributed, it is not. This is to allow the parties to pursue or conclude settlement negotiations without knowing how the appellate court intends to rule. In practice, however, parties always want to see the tentative.12
Like the California court, the Arizona court keeps confidential the author of the tentative and the identity of the panel judges and does not publish tentatives. The court experiences many benefits from releasing draft opinions prior to oral argument. These benefits include making oral argument more focused and relevant to the court’s concerns; giving counsel the opportunity to address and correct errors of fact or law; producing more accurate opinions; moving cases to disposition more quickly; virtually eliminating post-decision motions for rehearing; promoting settlement; and reducing the duration and number of oral arguments, thus, saving court and private resources. Surveys reveal that lawyers practicing before this court overwhelmingly favor the tentative program.13
With benefits espoused by California and Arizona courts, one would think that all appellate courts would issue tentative opinions. But those are the only courts that have official programs of regularly issuing tentatives. Why? Because, although lawyers love them, judges do not. One of the primary reasons judges give for not issuing tentatives is that collegiality is impacted adversely because one judge writes and issues the tentative without adequate input from the others on the panel. Other judicial objections to tentatives include the following: It would convert oral argument into criticism of the draft opinion and make it unduly argumentative toward the panel; pre-argument conferencing, preparation, and dissemination of an early draft opinion would require additional work of already overburdened judges; once having written a draft, judges do not want to rewrite it; judges will be inclined to defend the draft and not be receptive to changes; the panel might not have time to produce a sufficiently polished draft opinion, which would then reflect poorly on the court’s internal processes; judges may not recall the details of a case if too much time elapses between preparation of the draft and oral argument; parties may place too much importance on any changes made to the tentative; the use of tentatives would reduce the number of oral arguments, which are already declining; and there may be problems with precedential value if tentatives have to be published or are disseminated beyond the parties.14
Issuance of tentatives would be a change in current court procedure, and change can be controversial. But all of these objections can be countered and managed so that these changes would not be burdensome. Justice Ramirez in California points out that, contrary to concerns about collegiality and quality, a court that knows its preliminary opinion will be released to the parties will simply work sooner and harder to ensure that the product is top quality; the drive for accuracy is enhanced.15
Discretionary tentatives would not add any undue burden to judges’ work. They would be infrequent, not issued unless the panel was inclined to write an opinion in the first place, which occurs in relatively few Florida cases.16 They would not add work, but merely move the opinion-producing work and consultation to a point earlier in the process. Collegiality, a primary objection by judges, can be protected through procedures, such as requiring the assigned judge to circulate the draft far enough in advance to allow the other panel members to review it and at least vote on its conclusion, if not conference the case before releasing the tentative. As a practical matter, the use of a tentative would fast-forward the case to a status resembling rehearing, allowing the court to address any errors in the draft opinion, and to evaluate the tentative result in the light of the litigants’ directly focused arguments. As a result, the rehearing process itself would diminish in importance and occurrence, as has been the experience in both California and Arizona. Judges can learn to guard against confirmation bias and remain open to meritorious arguments on the need for change in the draft opinions.17
Notwithstanding the common arguments against the use of tentatives, the benefits remain compelling, and increasing support is appearing in the published literature.18 The use of tentatives on an ad hoc basis is within the existing discretion of Florida’s appellate judges and would not require any change in law or the Rules of Appellate Procedure. Given the potential benefits, judges should consider trying this procedure in selected cases, keeping track of the instances of its use, and observing benefits and pitfalls. A pilot program followed by a survey of lawyers in cases selected for the program would give courts the benefit of experience and allow them to expand or adjust the program based on the survey’s results. The potential for improving the courts’ ability to “get it right” merits serious consideration of the selective use of tentative opinions.
Even judges who react negatively to the idea of releasing pre-argument tentative opinions, nevertheless, see the benefits in a more narrowly defined procedure for tailoring oral argument to make them more meaningful: focus orders. A focus order is an order, or simply a letter, from the court to the parties, directing them to focus their arguments on specified issues or questions. Florida judges already use this mechanism occasionally to narrow the scope of argument or to request additional briefing on issues of particular concern or interest to the court.19 Anecdotally, it appears that focus orders are used more often than may be readily apparent from published opinions, because judges say they use them. However, focus orders are not often mentioned in the final opinion. In a recent concurring opinion, however, Judge Makar of the First District said the following about the usefulness of focus orders:
The practice of an appellate panel asking that counsel be prepared to address specific issues at oral argument, or to file supplemental briefs on designated topics, is an accepted and useful one. It is infrequently invoked, perhaps because it imposes expense on the parties and potentially delays the process. But it provides a twofold benefit: litigants get a preview of what judges are thinking, and judges get direction from litigants on the issues identified.20
Judge Makar’s analysis demonstrates that focus orders produce some of the same benefits that tentatives do, but without so many of the judicial objections that tentatives tend to raise. Lawyers who know in advance the panel’s specific areas of concern or interest are able to prepare for oral argument much more effectively and efficiently. The argument itself is more relevant to the court and more likely to forestall any perceived (or real) problems with the court’s analysis that might otherwise have to be addressed in the rehearing process. Other than the pre-argument effort required of the panel to develop and agree upon the content of a focus order, there would appear to be few, if any, downsides to this procedure.
A hybrid of tentatives and focus orders would seem to provide maximum benefits and minimum detriments. As a discretionary matter in selected cases, such as particularly complex cases or those in which the parties may have overlooked potentially relevant authorities or reasoning, the panel could confer prior to oral argument, agree upon issues to raise in a focus order, and simultaneously advise the litigants of the panel’s inclination for disposition of the case. A focus order could state, for example, the following:
The court is inclined to (affirm/reverse) because (briefly summarize reasons or authorities). This is a preliminary and nonbinding statement of the panel’s current thinking and is subject to change. The parties are directed to be prepared to address the following issues of (fact, law: specify) at the oral argument on (date) [or are directed to file supplemental briefs on the specified issues by (date) and to address these issues at oral argument].
This kind of a preview of the court’s inclination, coupled with specified issues to be addressed, would introduce focus and efficiency, make oral argument more meaningful and succinct, and ultimately help both litigants and judges produce the right and just results in Florida appeals. It requires no change in court jurisdiction or rules, and Florida judges should consider it along with tentatives and simpler focus letters as a means of improving the appellate process, while introducing savings for litigants and courts.
1 See California Courts, Court Programs, http://www.courts.ca.gov/2519.htm#tab7902, for information regarding the court programs of Division Two of the California Fourth District.
2 See California Courts, Court Programs, Tentative Opinion Program, http://www.courts.ca.gov/2519.htm#tentative.
3 See Thomas E. Hollenhorst, Tentative Opinions: An Analysis of Their Benefit in the Appellate Court of California, 36
Santa Clara L. Rev. 1, 14–35 (1995). A judge on that California court published a law review article discussing the benefits of the program after the first five years of operation.
4 Current samples of both form letters were obtained from Manuel A. Ramirez, presiding justice of the California Fourth District Court of Appeal, Division Two (on file with author).
5 Telephone interview with Manuel A. Ramirez, presiding justice, California Fourth District Court of Appeal, Division Two (June 24, 2014). The identity of the panel judges is released in a notice the Friday before the week of oral argument, and the author of the opinion is noted only in the final opinion.
8 Number 2 Letter (emphasis in original), available at http://www.civilharassment.com/handling_your_case/appealing-civil-harassment-/4dca2-fourth-district-divis/4dca2-notice-of-tentative-o.pdf. Initially, the California court issued more strongly worded oral argument waiver notices with its tentatives, encouraging parties to waive oral argument, as follows: “Enclosed is the tentative opinion of a majority of the three-justice panel hearing the appeal. The court has determined that (1) the record 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 of the appeal and the conservation of scarce judicial resources. Although the essential work of the court in this case has been completed, scheduling oral argument regularly delays filing of the opinion for six to ten weeks, and, if the case is continued, it can ultimately delay the filing of the opinion for up to five months until the same panel is again available.” People v. Pena, 83 P.3d 506, 509 (Cal. 2004) (emphasis in original).
The notice also prohibited counsel from repeating arguments made in the briefs, threatened imposition of sanctions for noncompliance with the waiver notice, and asserted affirmatively that “the court has decided that oral argument will not aid the decision-making process.” Id. The wording of the oral argument waiver notices was challenged and invalidated on grounds that the statement “that oral argument ‘will not aid the decision-making process”’ improperly indicated that the court had made up its mind irrevocably, thus, going too far in dissuading parties from availing themselves of the right to present oral argument. Id. at 514-15 (notice invalidated because it “has the potential to improperly and unduly dissuade parties from presenting oral argument on appeal”). The California Supreme Court emphasized that it approved of the tentative program itself: “We applaud innovations, such as the tentative opinion program adopted by the [c]ourt of [a]ppeal here, that are initiated to maintain the quality and integrity of the judicial process in spite of these obstacles [increasing caseloads and uncertain financial climate].” Id. at 516. Significantly, the California Constitution is interpreted to create a right to oral argument. Id. at 511, which does not have a parallel in Florida law.
9 Telephone interview with Manuel A. Ramirez, presiding justice, California Fourth District Court of Appeal, Division Two (June 24, 2014).
10 Telephone interview with Jeffrey P. Handler, clerk of the Arizona Court of Appeals, Division Two (July 21, 2014). It is said that the Arizona tentative program started in the 1970s, when a lawyer stated during an argument before the court that everyone knew the judges already had a bench memo or draft opinion in hand, and asked the court to share it — which the court started doing thereafter.
11 Arizona Court of Appeals, Division Two, Court Policies, IV, Oral Argument, http://www.appeals2.az.gov/courtPolicies.cfm.
12 Telephone interview with Jeffrey P. Handler, clerk of the Arizona Court of Appeals, Division Two (July 21, 2014).
14 Id. Telephone interview with Manuel A. Ramirez, presiding justice, California Fourth District Court of Appeal, Division Two (June 24, 2014) (results on file with author).
16 Joshua Stein, Tentative Oral Opinions: Improving Oral Argument Without Spending A Dime, 14 J. App. Prac. & Process 159, 182 (2013). The author suggested the use of “oral tentatives” in place of written, in which the panel tells the litigants the court’s preliminary decision at the start of oral argument. While such an oral pronouncement eliminates any perceived problems with preparing and releasing a written draft opinion prior to oral argument, it also eliminates all of the benefits of enabling the litigants to decide to forego oral argument, and enabling the lawyers to prepare a focused oral argument.
17 See Clark Collings, Oral Argument Reform in Utah’s Appellate Courts: Seeking to Revitalize Oral Argument Through Procedural Modification, 2013
Utah L. Rev. OnLaw 174, 179-80, 191-93 (2013), available at http://epubs.utah.edu/index.php/utahonlaw. Confirmation bias is the natural tendency to defend one’s initial decision and reasoning against subsequent change. It can be minimized through awareness and debiasing training.
18 See, e.g., Mark Hummels, Distributing Draft Decisions Before Oral Argument on Appeal: Should the Court Tip Its Tentative Hand? The Case for Dissemination, 46 Ariz. L. Rev. 317, 352 (2004) ; Joshua Stein, Tentative Oral Opinions: Improving Oral Argument Without Spending A Dime, 14
J. App. Prac. & Process 159, 182 (2013); Clark Collings, Oral Argument Reform in Utah’s Appellate Courts: Seeking to Revitalize Oral Argument Through Procedural Modification, 2013 Utah L. Rev. OnLaw 174, 179-80, 191-93 (2013); Alexander J. Konik, Tentative Rulings in California Trial Courts: A Natural Experiment, 47 Colum. J.L. & Soc. Probs. 325, 380 (2014).
19 See, e.g., Florida Carry, Inc. v. University of N. Fla., 133 So. 3d 966, 969, 976 (Fla. 1st DCA 2013) (en banc) (noting that the original merits panel had, prior to oral argument, requested the parties to address three specified issues, and later allowed the parties to submit supplemental briefing on those issues). Judge Makar’s concurring opinion in Florida Carry further noted that the First District had issued a similar focus order in Bondi v. Tucker, 93 So. 3d 1106 (Fla. 1st DCA 2012), asking the parties to be prepared to address three specified issues at oral argument. Florida Carry, 133 So. 3d at 989-90 (Makar, J., concurring).
20 Id. at 988.
Susan L. Kelsey is a solo practitioner in Tallahassee who handles Florida appellate matters through her firm, Kelsey Appellate Law Firm, P.A. She received her J.D. from the University of Florida College of Law in 1988.
This column is submitted on behalf of the General Practice, Solo and Small Firm Section, Teresa Byrd Morgan, chair, and Monica Elliott, editor.