1st District considers issuing tentative rulings

They're tucked inconspicuously near the end of a lengthy issuance out Wednesday from the 1st District Court of Appeal that proposes, mostly, minor changes to the court's local rules. But the three concise paragraphs comprising proposed new Rule 15(b) -- titled "Tentative Opinions" -- constitute what Division Two Presiding Justice Anthony Kline describes as a "major transformation," and culminate decades of debate on an uncommon appellate procedure: the issuance of draft opinions in advance of oral argument.

The proposed rule would allow appellate panels, "on occasion and in their sole discretion, to issue tentative opinions in cases scheduled for oral argument." Were the rule to be formally adopted, it would mark the first time an entire California appellate district was officially amenable to the practice.

"This marks a real departure from the traditional attitude," said Kline, who related that appellate justices were "by and large opposed to the idea" when Kline took his Court of Appeal seat in 1982. That opposition has largely persisted; though the Second Division of the 4th District Court of Appeal blazed a path in 1990 by issuing tentative rulings to focus the discussion at oral argument, other courts have been slow to follow. An appellate division in the 2nd District Court of Appeal adopted the procedure, but Wednesday's proposed district-wide change would dramatically expand its potential reach.

Still, Division One Presiding Justice Jim Humes, who Kline credited with spearheading the initiative, cautioned that it's an incremental measure; a tentative experiment that will largely depend on individual appellate panels to pursue.

"It's a small step," Humes said. "If the rule as proposed is adopted floodgates won't open with tentative opinions; panels will use them sparingly when they think it's useful. I don't think they will be routinely, or even frequently used."

According to both Kline and Humes, panels could use the practice to draw the attention and research efforts of appellate attorneys to the matters in a case the justices find most salient, and most worth addressing at argument. The justices also agree that the practice could rightly encourage attorneys to waive oral argument where an outcome, from a tentative ruling, seems unavoidable.

Kline, though, also acknowledged that the rule constitutes an experiment, one whose outcome is unclear but whose time has come.

"My own view is we ought to experiment," he said. "I think the majority of judges view tentatives as a good thing, but you can't really know whether the claims in support of them are valid unless you experiment."

Kline acknowledged the vote to approve the proposed rule was not unanimous, though he said an "overwhelming number" of jurists supported it.

Justice Steven Perren sits on the 2nd District's Sixth Division, and would be outside the new rule's impact. But he expressed concern Wednesday that appellate justices who issue tentative rulings might become, subconsciously, and perhaps unfairly, more difficult to sway.

"If you pour the concrete of your [tentative] opinion, it could harden and become such that you don't want to walk through that concrete," Perren said.

But appellate attorneys applauded the announcement, saying that appellate courts are rarely persuaded by oral argument in any case, and that the benefits of knowing where to dedicate one's preparation outweigh any drawbacks.

"Judges go to oral argument with an opinion already written up," said Jon Eisenberg, referencing how a state constitutional provision requires rulings within 90 days of oral argument and incentivizes jurists to have de facto tentative opinions prepared before arguments.

"They go to oral argument with the work already done, and they rarely change their minds. At least if you see their tentative opinion that gives the party on the losing end a better shot at turning things around."

John Taylor, Jr., first vice president of the Academy of Appellate Lawyers and a partner at Horvitz & Levy, agreed.

"Most attorneys believe judges to an extent are locked in to what's going to happen [in a ruling]," he said. "Since the locking in effect happens whether a tentative opinion is issued or not, on balance it's better to know what it is; to know what's troubling the court about your position."

Kline applauded the district's newest members, including a diverse set of former Gov. Jerry Brown's recent appointments, for advancing the change in practice.

"This reflects new attitudes; it reflects the open-mindedness on the part of an appellate district that has been recently transformed by the last governor," he said. "So, now we're going to see; over time we're going to learn a lot about the usefulness of tentative rulings."

The proposed rule is now out for a public comment period, after which time it will be voted on again by the court's members for formal adoption.