Resolving Appeals Faster

MOSKOVITZ ON APPEALS

Our last column began a discussion of appellate court delay. We suggested steps that you might take to get your case heard earlier.

This column will explore whether the courts themselves might do anything to improve the situation generally.

As we noted, 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 time the last brief was filed 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.

We need to be careful, however. Speed isn't everything. The old saw says "Justice delayed is justice denied." But here's another saw: "Too-quick justice can beget injustice." (We made it up.)

Our appellate judges -- both state and federal -- usually do a terrific job rendering justice. Their opinions are usually thorough, thoughtful, well-crafted and fair. With the help of very able research attorneys, they spend a lot of time on each case, making sure they get it right. We do not want to suggest anything that might diminish the quality of their work.

Two of us (Justice Ardaiz and Justice Cottle) served as presiding justices of Courts of Appeal for many years. So much of what we have to say here is based on our experience.

Statutes and the Rules of Court grant "automatic calendar preference" to certain types of appeals. These include:

• criminal appeals,

• probate matters,

• many juvenile and parental custody proceedings,

• proceedings to recover possession of real property, and

• several other specific categories.

We will focus on the garden-variety civil cases that get no such preference. And we'll focus on the time controlled by the court rather than the time controlled by the parties. The parties generally control how long it takes to get all the briefs filed (although if the court grants requests for extensions too freely, the court itself might contribute to undue delays during this phase).

But from the moment the parties file their last brief, the court itself is solely responsible for the time it takes to render its opinion.

In seeking reasons for any delays, here's the starting point: Appellate courts have broad discretion to determine the order in which they decide cases that are not entitled to automatic calendar preference.

Calendaring and adjusting caseloads are some of the most difficult aspects of case administration. There are three sequences of case management decision-making that affect delay: (1) acquiring the record on appeal (reporter's transcripts, and either clerk's transcript or appellant's appendix); (2) getting the three appellate briefs (appellant's opening brief, respondent's brief and appellant's reply brief), and (3) policies for assigning cases to various divisions and justices.

Lawyers assume that an appellate court works on non-preference cases in the order each notice of appeal is filed. They get annoyed if they hear that a later-filed appeal was decided before theirs.

But that's not how it works. The court does no substantive work on any appeal until all the briefs have been filed (unless a motion to dismiss or the like has been filed). So let's focus on how they operate after they get that last brief.

At that point, does it then become first-come, first-served, i.e., do they line up the cases in the order the last brief is filed? No again. When the work begins depends on several decisions. And how those decisions are made varies from court-to-court and chambers-to-chambers.

The first decision is which division (or, in some districts, which panel) gets the case. That decision is made by the administrative presiding justice of the district, who usually tries to balance the workload of each division. Sometimes that means holding back a big case until a division's workload lightens up.

After a case is assigned to a division, the presiding justice of that division needs to assign it to a particular judge's chambers, so that judge and her research assistants can prepare a "calendar memorandum" -- actually, a draft opinion -- for the other judges to review before oral argument. That assignment decision too is made to balance workloads, so here again a big case might be held back for a while to wait for other cases to be resolved.

And finally, within a justice's chambers, the justice wants to balance the workloads of his or her research assistants, and this might require waiting until some other cases are completed. And once the research attorney gets a case, she might not start work on it right away, because she has other cases on her plate too. And once she does start on it, she decides how to schedule her work on it.

Each of these stages is -- and must be -- governed by the discretion of the person making the decision. It is, if you will, lawless and unchallengeable. There is no way to write and enforce a rule that would effectively cabin this discretion.

This is partly because there will always be nuances that should be considered but cannot be codified. Persons making assignments need to consider individual differences among the people who might receive the assignments. Some have particular interests -- one loves environmental cases, while another is uncomfortable with them. One person is deliberate but slow, while another turns out draft opinions quickly. Handling appeals is a human endeavor, so administrators must take into account variations among humans.

Thus, if the system needs improvement, these are the only ways available:

• Make more justices available by filling vacancies promptly, and by funding more appellate positions. And fund more positions for research attorneys.

• Appoint presiding justices who have the ability, the experience and the interest in administration -- and the interpersonal skills needed to ride herd over strong personalities whom you cannot fire (the other justices).

That said, we do urge these administrators to consider the effect of delay on the parties to the pending appeals. The quality of opinions should be preserved as much as possible, but the real-life consequences of the time it takes to reach those opinions is also important.