On justice delayed

Appellate maven Jon Eisenberg recently filed a complaint with the Commission on Judicial Performance, naming three judges sitting on the 3rd District Court of Appeal (in Sacramento) -- and accusing them of unreasonable delays in deciding cases. And now the California Academy of Appellate Lawyers has set up a committee to investigate the general problem of appellate court delays.

There is, of course, an easy solution to this problem. "If we hold oral argument in your case on Tuesday, you'll get your decision on Wednesday. With no opinion. You'll have no idea why we decided the way we did. For all you know, we just flipped a coin -- heads for affirmance, tails for reversal. Happy now?"

No, Your Honor, we're not happy. The critics of delay invoke the old juridical shibboleth, "Justice delayed is justice denied." Note the word "justice" -- used twice. Not "ruling," not "decision," not even "opinion." The top concern is "justice." "Delay" comes in second. An unexplained appellate ruling leaves us very uncomfortable, because it asks us to accept the "justice" of the court's ruling on faith alone.

Though it happens. It's hard to get a client to understand why an appellate court issued a one-liner ("Petition denied") rejecting his petition for writ of mandate, or his petition for review by the California Supreme Court -- with no explanation. A written opinion gives us some assurance that the appellate court has put in the hard work and careful thought needed to get the facts right, to apply the correct law to those facts, and to come up with a just result.

I'm concerned that by focusing on delay, we might shortchange the ultimate goal of an appeal, a just decision.

My concern arises from my experience, both with cases I've handled and cases I've observed. Sometimes -- not often, but not rare either -- appellate courts seem to be rushing to judgment, without doing the work needed to get it right.

But how would I -- or any other appellate attorney -- know anything about how hard appellate judges work? We don't get to watch them in their chambers, or see how much work they take home. For all we know, they arrive at the office early, skip lunch, and burn the midnight oil reading briefs and records.

We actually see the judges only once during an entire appeal -- during the handful of minutes of oral argument. But what we see at oral argument sometimes reveals something about their work habits. Occasionally -- and I stress this: only occasionally -- it's clear to everyone in the courtroom that one or more of the judges are unprepared.

Presiding Justices often begin each oral argument session with this message: "Counsel, the court has read the briefs and the record and is quite familiar with the facts. So please do not spend time telling us the facts."

When I speak on appellate strategies at bar association programs, I tell the lawyers: "Believe the Presiding Justice's speech at your peril. It might be so, but I've seen and participated in too many oral arguments where judges simply did not know key facts."

A while back, I argued a case for an appellant. The Presiding Justice did not give the usual warning, so I began by summarizing the facts. All three judges challenged me. I didn't back down, so they asked me to show them where the record supported my assertions. I did, giving them page and line numbers, and reading some undisputed testimony. They were quite surprised. Then they did something that rarely happens at oral argument: They changed their tune, right in the middle of the argument. I ended up winning the appeal.

I should have been happy about this, but I came away quite disturbed. "What just happened?" I asked myself.

I suspect this. All of the correct facts, together with accurate citations to the record, were in my opening brief. My opponent's brief included incorrect facts, often with no citation to the record. My reply brief discussed pointed this out. But for some reason I can't fathom, the court's law clerk drafted an opinion that accepted my opponent's "facts," and from them, concluded that the trial court judgment should be affirmed.

I have no idea why the law clerk did this. While the dispute was on the dull side, my briefs were short and easy to read, and the trial judge had clearly erred. But what became apparent at oral argument was this: The judges had read only the law clerk's draft opinion. Not one judge had read either of my briefs. If they had, my factual assertions at oral argument would not have surprised them.

A law clerk works not for the whole panel, but for one of the judges on the panel -- the judge who was assigned by the Presiding Justice to draft the opinion. So the two judges who do not employ the law clerk rely on the "authoring" judge to ensure that the draft opinion is worthy of issuing as the opinion of the court. It's somewhat excusable (though I wouldn't do it) that -- before the oral argument -- those two non-authoring judges skip reading the briefs and review only the draft opinion. But how can the authoring justice do this? That judge is responsible for the opinion, which will go out over his or her name.

I'm not sure that judge appreciated what's at stake in an appeal. In criminal appeals, some poor wretch's liberty. In civil appeals, someone's fortune, reputation or emotions. The parties have paid their appellate attorneys thousands of dollars to thoroughly review the record, write the briefs, and prepare for and present oral argument. The parties (and their attorneys) care about what happens. They have no right to victory, but they do have a right to careful consideration of the record and their arguments. They don't always get it.

I mentioned this incident to a lawyer-friend of mine, who said, "I'm not surprised. These appellate courts use 'externs' to write their opinions -- kids in the middle of law school. What do you expect?" I don't know where he got this notion, and I have no idea if he's right. But situations like this breed speculation and rumors -- emanating from what people see at oral argument, which is their only chance to see the judges doing their work.

As I said, such lack of preparation is the exception, not the rule. In most of my cases, the judges are well prepared.

Appellate judges sometimes call me to discuss one of my columns. I asked one Southern California judge about her law clerks, and she replied, "Oh, I don't have any law clerks. I read all the briefs myself." I told her, "You must be the only appellate judge in the state who does all her own work."

There's one division in particular -- my favorite -- that is always thoroughly familiar with every aspect of every case, no matter how "unimportant" the case might seem to people other than the litigating parties. I write pretty complete statements of facts, but I've had cases in this division where it was apparent from the oral argument that at least one of the judges had delved into the record so deeply that he was familiar with facts I hadn't even mentioned. This is how an appellate court should operate!

I've never seen this problem in our California Supreme Court. At oral argument, all seven judges seem very well prepared, and they pepper both sides with questions that display deep knowledge of the facts and issues. Sometimes the sharp questions come from so many different judges that it's hard to tell who will be the "authoring" judge.

This might be explained, in part, by the fact that the Supreme Court hears only about 75 cases a year, a number much smaller than Courts of Appeal workloads. And most of those 75 cases affect a broad swath of society, so they might be seen as more interesting and challenging that the ordinary one-on-one disputes that Courts of Appeal resolve.

But there is another reason why the Supreme Court Justices are so well prepared at oral argument.

Back when I clerked for a Supreme Court Justice, I worked on cases in three stages. First, I reviewed petitions for review and wrote memos recommending grant or denial. Second, if the Court granted a petition, I was then assigned to write a "calendar memo" for the judges to read before the oral argument "calendar." And third, after oral argument, I was told to draft the Court's opinion. This last stage was not difficult, as it usually required editing the calendar memo to emphasize the side that won.

The calendar memo was a key feature of this process. It summarized the facts -- including disputed facts -- and arguments from the briefs filed by both parties. This enabled the judges to see the whole case, not just one side. And, of course, they were free to read the briefs and the record too -- and they often did.

The Supreme Court still employs the calendar memo. But some Courts of Appeal skip this step. This is a mistake. A balanced calendar memo would alert the judges to weaknesses in factual presentations and legal arguments -- before the oral argument -- so the judges could hear both lawyers with an informed ear, even if the judges did not have time to read the briefs.

But what about the delay problem? Some will say, "Add another stage? We have too many cases. We can't burden our law clerks with a new task. We have enough trouble resolving our cases within a year or two after appeals are filed." But writing a calendar memo doesn't take that much longer than writing a draft opinion. It just requires adding a short summary of the other guy's arguments.

I share Jon's concern about how long it takes our appellate courts to decide cases -- and I admire his courage in speaking out about this issue, all by his lonesome. But I think I speak for most attorneys when I say, "Take the time you need to get it right. Slow justice is better than quick injustice." 