Resolving Appeals Faster

MOSKOVITZ ON APPEAL

Do appeals take too long?

In a civil appeal our firm is currently handling, we filed our notice of appeal in January of 2016. All briefing (both ours and our opponent's) was completed by October of 2016. Each party then asked for oral argument.

And now -- two years after we filed our last brief and ready to rise up on our hind legs to tell the appellate justices face-to-face why they should rule for us -- we have been waiting for the court to set the case for oral argument. And waiting. And waiting....

Similar delays in other civil appeals are not uncommon.

There's nothing special about our case. It matters to no one but the parties. But resolution of the appeal is very important to them.

Maybe we should be thankful. In India, apparently, appeals can take up to 30 years.

But clients are not thankful. They keep calling me: "When?" While they wait, the world turns. Appellants often pay hefty premiums -- every year -- on bonds to stay enforcement of money judgments. Respondents might have to set aside funds in case a judgment is reinstated. People need to plan their businesses and their lives, but plans hang in mid-air while the wheels of justice slowly grind on.

What's going on here? Why does this happen? Is there anything you can do to get your case on appeal decided faster? Is there anything the appellate courts can do to improve the situation?

The Big Picture

According to the most recent Judicial Council report, the statewide median time for civil appeals was 506 days -- from the filing of the notice of appeal to final disposition. Ten percent took more than 842 days -- well over two years.

The Judicial Council report didn't keep track of the amount of waiting time between the filing of the last brief and the court's decision. Still, it's pretty clear that this time period accounts for the bulk of the delay. That means the parties have done all they were supposed to do -- and now they must sit by and wait for the court to do its thing.

Thus, it appears that the fault rarely lies with counsel. The main causes for delay arise within the appellate courts. Why? Probably large caseloads and judicial vacancies, not lack of productivity.

The average appellate justice writes roughly 100 majority opinions per year, statewide. But there were more than 5,000 fully briefed appeals (of all types, civil and criminal) pending at the time of the last Judicial Council report. Part of the problem is that the Court of Appeal has been short-handed. In the first few months of 2018, there were as many as 12 appellate vacancies state-wide (out of 105 slots).

The 9th U.S. Circuit Court of Appeals is slightly faster, but still averages more than a year between notice of appeal and disposition. The court's most recent statistics show a median appeal time of 12.2 months -- roughly four months longer than the national average among federal courts of appeal.

These overall averages don't provide much insight into how long your appeal will take. A number of factors may be in play.

In the California courts, there are significant differences between districts and divisions. On average, it currently takes almost a year longer for a civil appeal to be decided in what has been the slowest court (the 6th District, which had several vacancies) than the fastest (the 2nd District, Division 5).

"Automatic Calendar Preference"

Even within the same division, there could be a significant variation. What accounts for that difference? One key factor is that certain types of cases are entitled to "automatic calendar preference".In California courts, Code Civ. Proc., Sections 44, 45, 1179a, Cal. Rules of Court, rule 8.416, and other provisions, grant automatic calendar preference to several types of appeals: criminal appeals, probate matters, many juvenile and parental custody proceedings, proceedings to recover possession of real property, and several other specific categories.

All of these jump ahead of run-of-the-mill civil cases, which get no automatic preference -- even if they were filed earlier The 9th Circuit gives automatic preference to criminal appeals, as well as certain habeas corpus petitions, appeals involving TROs and preliminary injunctions, and a couple of less common categories. 9th Circuit Rule 34-3.Viewed in isolation, it's hard to quarrel with the justifications for any of these preferences.

The cumulative effect, though, is that if you're not among the lucky few, you wait. When so many other cases are entitled to automatic preference, "ordinary" civil appeals are likely to languish.

Tips for Getting Your Appeal Heard Faster

Is there anything you can do to speed up resolution of your appeal?

If you are entitled to an automatic preference, you should make that clear at the outset.

In California courts, start with the "civil case information statement," which asks you to check a box if you believe your appeal is entitled to preference. The first person who sees the case is the appellate court clerk, who is supposed to put the case on the preference track or the non-preference track. The second person who sees it is the managing attorney, and she might pick up a preference that the clerk missed. Requests for extension are primarily handled by the presiding justice.

In the 9th Circuit, Circuit Rule 34-3 requires parties who believe the appeal is entitled to priority to "inform the Clerk in writing no later than the filing of the first brief."

And even if you are not entitled to a preference, you might be able to frame your brief to get you closer to the top of the stack of non-preferred appeals. Try to write it in a way that makes the court want to decide your appeal quickly. If a justice has two cases on her desk -- neither entitled to statutory preference -- it's human nature to pick up the more interesting case first.

The Motion for "Discretionary" Calendar Preference

Once your brief is filed, you can file a motion for discretionary calendar preference (or a "motion to expedite," as it's called in the 9th Circuit) -- even if no statute or rule grants you automatic preference. This can get you to oral argument sooner. To succeed, you must establish good cause for the motion.

Our firm filed a motion for calendar preference in a case we recently handled, where we sought to overturn a trial court judgment blocking our client (the state auditor) from auditing the Commission on Judicial Performance. We had no explicit statutory preference, so we relied on some general authority allowing such a motion where "questions of broad public interest" and "exigent circumstances" justify such a preference. See Cal. Rules of Court, rule 8.240, Eisenberg, Horvitz, & Wiener, "California Practice Guide, Civil Appeals and Writs," ¶ 5:206 (Rutter Group), and Gold v. Gold Realty Co., 114 Cal. App. 4th 791, 803 (2003). We claimed that we needed a reversal soon, so the audit could proceed and a report prepared and submitted to the Legislature in time for their adoption of next year's state budget. The Court of Appeal granted the motion.

A Gentle Nudge

If you don't think you can show "good cause," you might nevertheless might get your case going by giving the court an informal nudge -- a kind of, "Hey! Did you guys forget about my case?"

Maybe the court's file for your case fell behind the justice's couch. A letter from you might prompt them to look for it.

The 9th Circuit encourages parties to write to the court if "the parties have not received notice of oral argument or submission on the briefs within 15 months after the completion of briefing." Advisory Committee Note to Circuit Rule 27-12.

There is no equivalent in the California rules, but there's no rule prohibiting it. Take a look at the above statistics. If your case has been sitting significantly longer than normal, send a letter.

Just be mindful of the court's limited resources. Don't send a letter prematurely, and if you do write, frame your letter in a way that acknowledges the court's workload and its automatic preference categories.

For ideas about what appellate courts might do to cut down the delays, tune in to our next column.