Wednesday, May 4, 2016

Reasons for tentative rulings

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Last week's DJ ran a letter to the editor by attorney John K. Haggerty of Santa Clara captioned Appellate Courts Could Help Out Counsel with Draft Opinions. The letter makes several thoughtful points:

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  • First, some practitioners are afraid to waive oral argument because doing so "might inadvertently (and incorrectly)" signal to the court that the appeal "is not all that important to our clients and/or the development of the law" -- and perhaps courts can "do more to allay this longstanding and reasonable concern."
  • Second, supplying tentative rulings--in the same way that trial courts do when posting tentative rulings at law and motion hearings--would help the parties and their counsel by (1) helping to decide whether to incur the expense and delay of requesting argument, and (2) being able to address the court's specific concerns at argument.
  • Mr. Haggerty goes on to recount how in at least two published opinions of his, the "court based its decision on grounds that were not raised by" the parties in briefing, which "was very frustrating, wasteful, and unfair." Releasing a pre-argument tentative ruling would have allowed the parties to present "a far more meaningful argument."
For some recent good opening paragraphs in opinions, look here and here.

And on the question "should pro pers get special treatment regarding appellate sanctions?" look here (page 8).