Tentative Opinions in Appellate Cases

I recently appeared for oral argument before District Two, Division 7. Apparently, it is the only division in District Two that distributes a tentative ruling just before the scheduled hearing. For example, if you have a 1:00 p.m. appearance, you will be handed a one-paragraph sheet with the tentative ruling. Only one copy is made, so you must read it quickly and then hand it over to your opponent.

As Justice Ramirez, Presiding Justice of the Fourth Appellate District, Division Two, once said, “The Court wants you to give your best argument. If you are nervous or uncomfortable, you might not be able to do that.” As I prepare for oral argument, I try to take steps to minimize my nervousness by intensive preparation and practice. Receiving a tentative opinion minutes before oral argument is hardly conducive to allowing an appellate attorney to do his or her best. Last minute tentative rulings leave us scrambling and may not allow for adequate research and preparation.

Early focus letters, such as those utilized in other Districts, allow the attorneys to concentrate and tailor their presentations to issues that are important to the Court. The attorneys still need to be fully prepared, but we could save our clients’ money in attorney fees if we can focus our arguments

Another aspect, although not quite as significant, is that in appearing for oral argument, we should believe we have some chance to win, although we all know the odds. To be given a sheet of paper minutes before that, advising us that we have lost, has an immediate impact on our confidence level. A focus letter in advance allows us to absorb the loss - if that's what it is - lick our wounds, and get ready to fight for our position.  

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