To the uninitiated, oral argument is the denouement of every appeal; the moment when the great appellate orators clash and the appellate court considers how to rule. But for those that have been around the appellate block more than once or twice, loss of innocence is discovering that the appellate court has a draft opinion already written before the oral argument. In September 9th's Daily Journal, professor and appellate practitioner Myron Moskovitz had an intriguing guest column called "Abolish Oral Argument?" In it, Moskovitz, all-around good guy and lover of things appellate, ruminated on the impacts of the "90 day rule" in California's appellate courts.

Upon submission of a case (at the conclusion of oral argument), the court has 90 days to issue an opinion, or else the justices don't get paid. Yep - no pay. Now just think if your paychecks were subject to something like that! That could be a pretty effective form of incentive. At the Court of Appeal, it means that as appellant's counsel approaches the podium, the court has already made up its mind. As Moskovitz puts it, "oral argument in most of California's appellate courts is indeed an 'empty ritual'." As a justice at the First District told me only half-jokingly, "Sometimes we'd like to hand the lawyers the draft opinion as they are walking away from the podium."

For oral argument lovers, and I am included in that group, the situation is very different in the Ninth Circuit. The circuit judges are not boxed in by a 90 day rule, and as a result, oral arguments tend to be hotter. (Admittedly, any oral argument with live human beings could be hotter than some state appellate court oral arguments, but that's not the "hot" I am referring to.) At the Ninth Circuit, all 3 members of the panel tend to be more interested, ask more questions on the law and the facts, and both parties tend to receive active questioning. While the panel may have an idea where they are headed, there is still plenty of time to come to a conclusion. And so they fire away.

I'll take an oral argument in the Ninth Circuit any time.

But what to do about the state appellate courts? At oral argument, are we just tilting at windmills? Moskovitz pointedly notes that one division of one district has a tentative ruling system. In the Fourth Appellate District, Division Two, the parties receive a tentative ruling which, like its trial court counterpart, crystallizes the issues for oral argument. Sometimes so much so that after reading it, the parties waive oral argument.

At least that's a knowing waiver. And that's a much better way to abandon oral argument than trying to predict the outcome before oral argument when the oral argument request form arrives in the mail. Ask any appellate lawyer that has been at it for a while, and you'll hear some version of the following pleasantries:

Appellant's attorney candidly discusses the costs involved in preparing for oral argument including how the court has pretty much decided the issues beforehand. Client and lawyer waive oral argument. The decision comes out against the client. The lawyer gets berated for not attending oral argument. That's always fun.

In the other version, Respondent's counsel receives a copy of Appellant's waiver of oral argument. Knowing that the standard of review is hard on appellants, feeling confident about the trial court result and knowing that a decision is already written, Respondent also waives oral argument. Counsel confidently awaits the decision. The decision turns out to be a reversal! The client is irate. "Why didn't you go and argue? We lost our only chance to change their minds!" Another form of fun.

Willingly waive oral argument absent a tentative ruling? I don't think so. Empty ritual or not.

There is another alternative to wholesale adoption of a tentative ruling system (although that would certainly be the best improvement). In some divisions of the appellate courts, the panel sometimes sends the parties a "focus letter." As the title suggests, the letter asks counsel to address one or two issues. As a result, oral argument is, well, focused. And that's a big improvement. Sending such letters earlier in time would also improve things; saving clients and counsel the time and cost of preparing for oral argument on all the issues given the otherwise unknown nature of the court's leanings.

Abolish oral argument? Moskovitz has a twinkle in his appellate eye when he says that because a party's right to oral argument is constitutional. (See, Moles v. The Regents of the University of California (1982) 32 Cal.3d 867, 871-872.) Abolish empty ritual oral arguments by increased use of focus letters or adoption of a tentative ruling system? Now there's a compelling argument!