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Law Practice,
Judges and Judiciary,
California Courts of Appeal

May 3, 2021

Revelations II

The intriguing title of my February column “Revelations” was an intimate look (not exposé) on how appellate opinions are “processed” in my division. Please excuse the word “processed.”

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on gilbertsubmits.blogspot.com.

UNDER SUBMISSION

The intriguing title of my February column "Revelations" was an intimate look (not exposé) on how appellate opinions are "processed" in my division. Please excuse the word "processed." It sounds like a factory assembly line production of foods for humans or pets. Well, the cases do keep coming and they must be... decided, a characterization I prefer to "processed." And each decision is a written opinion, a reason for a result. Everyone knows that, right? And the cases keep coming... sorry, I already said that. And some take longer to package, I mean, to decide, than others. Believe we already covered that territory. Note the preceding few sentences may be characterized as padding. This should be avoided in appellate briefs at all costs... and in... appellate opinions. Consider this a learning tool. If I believed in footnotes... of course, I believe in them. Unfortunately, they exist. I do not hate them per se; I hate their ubiquity. I could have placed the "learning tool" in a footnote, which I strongly advise not to do. Learning tool #2.

In that February column, I promised to continue in future columns with more insights concerning the appellate process. Damn! Did it again. And yet another lesson: edit and edit, cutting away the deadwood. This applies to opinion writing and to brief writing. "Brief." Get it? Or to put it another way, "brief but complete." The two are compatible, like "love and marriage." The statistical accuracy of how often this occurs in either category ("category" better than "discipline"). That my wife often reads my columns should be obvious. Accuracy is vital, but, in some instances, let's not quibble about words.

But how do we get there -- to writing the opinion? In my division, I have a title, P.J. At home that stands for pajamas. We are a four-justice division and we sit in rotating panels of three. My vote on how to rule on a particular case carries no more weight than the vote of either of my two colleagues who are also on that case. If two other justices vote to affirm a judgment on appeal and one of the justices votes to dissent, you might say that vote carries less weight... unless the Supreme Court agrees with the dissent. When that happens, not often, the dissenting justice does not brag or strut around the court... for any appreciable length of time. I do not assign cases; they are automatically assigned to each justice in blind rotation when the appeal is filed. Appeals with 70 volumes of reporter's transcripts, 50 volumes of clerk's transcripts, and complex issues, for example, we call "MONSTERS." Monsters move along a different assembly line, I mean, a separate track.

The opinions are "worked up" by the justices and dedicated research attorneys. Do we answer every argument advanced by a party? Shouldn't the argument be "heard"? Of course not. I mean, not always. Some practitioners argue that the litigant deserves to have every argument advanced by appellate counsel decided in the opinion. Every argument is decided, but not all deserve to be in the opinion, especially when one argument disposes of the case, and other arguments are without merit. That decision of course must be made, pardon my bias, by the justices. Who else?

The authoring justice then circulates a "calendar draft" to the other two justices on the panel. There may be some questions and concerns communicated either in person or by email among the justices and their respective staff. These communications range in tone and substance to anything from "what were you thinking? etc." (do not use etc. in opinions or briefs... or columns. Learning tool #3) to something more genteel. All in good humor, of course.

The day before oral argument the justices in my division sit around a conference table adjacent to my chambers and talk, and occasionally yell, about the cases. It's a stimulating and gratifying experience... most of the time. We take an active interest in how the opinion is written. Faulty grammar undermines substance. I earnestly implore my colleagues to criticize the ..... (fill in your own expletive) out of the opinions I author. By the way, "expletives" may, but not necessarily, refer to profanity. Thank you, President Nixon. I do the same with my colleagues. We discuss content and expression. Does the opinion read well? It is comprehensible? Will it cause confusion? How will it be interpreted or misinterpreted? We end the conference with a tentative opinion in mind and on occasion a tentative dissent. We stay friends.

The next day at oral argument we think we have a firm grasp of the issues. We are an active court and usually ask questions. Is this annoying to counsel? It shouldn't be. It is the opportunity for them to know what we are thinking, and whether our thinking needs guidance. Seasoned appellate counsel appreciate this opportunity. At least that is what some of them tell me. I suppose it's true.

When I practiced law and argued cases in front of judges, most of whom are not around anymore, I wanted to know what they were thinking... or if they were thinking. That is why a colloquy (horrible word, don't use it) between counsel and the judge is usually beneficial. This assumes the judge does not make you feel bad. I try not to do that, but on rare occasions it may have happened. Sorry. I have judged numerous moot court competitions from various schools and most of the students were earnest and impressive advocates. But some students seemed to be sensitive and "hurt" by tough questions. Whether that characterization is the distorted reflection of a... hmmm... person of advanced years (euphemism), I cannot say. Good topic to pursue in the future.

Where were we? Oh, yes, what happens after oral argument? We may file the opinion as originally written. But often we may make changes that require analysis of new cases that have been filed after briefing ("after" better than "subsequent to"). Another learning tool-lost count of number. We ask for further briefing when required. Oral argument may prompt us to change our characterization and emphasis. Question asked ad nauseam, but none the less reasonable: How often does oral argument change the result of the original draft opinion? Not often. Not specific enough? The honest answer? How about, almost never. Petitions for rehearing? Pretty much the same answer, only slightly better odds. We will explore these and other topics in future "revelations" columns... maybe.

But here's a teaser. How do judges handle cases when they are litigants? Be ready for a frank and truthful exposé in a future column. Here the word "exposé" is warranted.

#362532


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