Appellate academy appoints task force on delay, seeks comments

Some problems produce benefits. They can even lead to lasting improvements.

In the Daily Journal and elsewhere, one form of appellate delay has been widely publicized since late January of this year. A complaint was filed with California's Commission on Judicial Performance about three Justices on the 3rd District Court of Appeal in Sacramento. Statistics suggested that they were taking an unusually long time to prepare their assigned opinions.

While the foregoing issue certainly merits attention, a statewide organization of appellate lawyers believes it's also time for a broader review of the appellate process. The California Academy of Appellate Lawyers has long pledged, in its constitution, "to promote and encourage changes and reforms in appellate procedure designed to ensure effective representation of appellate litigants and more efficient administration of justice at the appellate level." To that end, as the Daily Journal reported on Feb. 11, the academy decided to establish a new task force to explore possible statewide improvements in the efficiency of the appellate process without any sacrifice in quality. Today, we are pleased to announce that the task force has been formed and is off and running (chaired by this author).

You're probably asking yourself, "What sort of broad improvements?" Our first response is to pose that question to you. The task force wants to hear from as many interested parties as possible and as soon as possible: appellate justices, appellate staff attorneys and clerks, appellate lawyers and litigants, superior court clerks and court reporters whose work precedes the appellate briefing, other bar associations, and anyone else who cares about the effectiveness of our appellate process. We urge you to send your ideas to the chair of the task force at his email address provided below. And we will honor requests to keep your ideas or other comments confidential.

Meanwhile, the task force will be reaching out to judicial and bar organizations for input and possible collaboration. However narrow or broad a problem may be, the best solutions usually require constructive cooperation by all interested parties.

Getting back to the question: Here are some preliminary ideas we're considering about possible improvements. The appellate process can slow down any number of ways, especially during a pandemic but in healthier times too. At the very outset, for example, superior court clerks are charged with a number of tasks deemed essential before appellate briefing can begin. Aside from processing the notice of appeal and filing fees, they must gather and organize all the court filings requested for an appeal if the appellant elects a "clerk's transcript," rather than directly preparing an appendix of such documents to file with the opening brief. Similarly, the clerks must coordinate the preparation of any reporters' transcripts required for the appeal. And when all the transcripts and court filings are ready, the clerks must get them delivered to the Court of Appeal.

One issue our task force will be examining is whether this initial phase of the appellate process can be shortened. Perhaps the very option of a clerk's transcript could be limited to self-represented parties. Perhaps the parties themselves, already entrusted to submit an appropriate appendix of court filings to the Court of Appeal, could likewise be entrusted to submit an appropriate reporter's transcript to the Court of Appeal -- subject of course to the same close review by the opposing party and the court. Perhaps we don't need to rely so heavily on hard-pressed middle men and women at the superior court clerks' offices.

Another issue we'll be examining is the briefing phase. For example, must a delayed reporter's transcript always delay the commencement of briefing? If the official transcript with its proper pagination isn't ready within a prescribed time, perhaps we should let the briefing begin with citations to the unofficial transcripts already available. And ask the parties to submit revised versions of their briefs once citations to the official transcripts are available. Perhaps they would prefer that extra step rather than delay the briefing phase for many months.

As a final example, our task force will be considering the idea of a new form of expedited appeal, independent of the current "calendar preference" option limited to prescribed cases. Perhaps a new statewide rule, or a district's local rule to begin with, could invite any parties with a shorter record to limit the length of their briefs, agree in advance to a short or memorandum opinion, and waive oral argument unless the court itself orders one, in exchange for the court's commitment to expedite the decision. Such an arrangement would not only benefit the parties, but also limit the court's own time and other resources devoted to the expedited case.

We emphasize that these are only preliminary ideas, among others, that our new task force will be considering and discussing with other organizations. So we urge you to send comments on these ideas, or any others you may have, to the chair of the task force. And we repeat our pledge to keep your comments confidential if you prefer. 