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Highly Informative Discussion with Second District Court of Appeal Justices

If a case is litigated in San Luis Obispo County Superior Court and goes up on appeal, that appeal will be heard in the Second District Court of Appeal, Division Six, based in Ventura.  The Court hears oral argument on almost all of its cases at its Ventura facility.  However, the Justices sometimes make trips to Santa Barbara and San Luis Obispo to hear oral argument.  Recently, those Justices held a highly informative panel discussion followed by a question and answer session, which was sponsored by the SLO County Bar Association.

Held at the Gardens of Avila, the distinguished panel of speakers assembled to begin the presentation after mingling and talking informally with the county judges and attorneys who were in attendance.  The session was led by Presiding Justice Arthur Gilbert, who was joined by sitting Associate Justices Kenneth Yegan and Steven Perren.  Also participating in the discussion were retired Justice and former San Luis Obispo County Superior Court Judge Paul Coffee, Judge Jeffrey Burke of the SLO County Superior Court, and Los Angeles County Superior Court Judge Joanne O’Donnell.  Judge Burke and Judge O’Donnell sit on the Second District, Division Six as Pro Tem Justices.

As was the case in previous years, the 2014 presentation was less staid panel discussion than spirited back-and-forth with the Justices discussing their decision-making process and sometimes trading good natured jibes.  Their visit truly gives local attorneys a glimpse of what goes on behind closed doors, as the Justices candidly conceded that that their discussion of the process bears close resemblance to their process of discussing pending cases that are set for oral argument.  The panel discussed too many important issues to address in this relatively brief piece, so a few of the most memorable moments will be highlighted.

Most attorneys who have appeared before Division Six and other Courts of Appeal will tell you that Division Six is different.  Chief Justice Gilbert shed some light on this difference.  When Division Six was created, the Justices appointed to the division had not been Appellate Court Justices.  Therefore, they did not set about their task with a preconceived notion of how Appellate Court Justices work.  Unbound by concerns about how things are done, the Justices agreed that their job was to put out the “best product possible.”  This meant everything was open to discussion, question, criticism, and revision.  Justice Gilbert pointedly noted that this included not only the substance of decisions but the style, with the Justices having read too many poorly-written appellate decisions, both as practicing attorneys and as trial court judges.  Even though he realized they understood the criticism might be difficult to hear at times, they agreed that grammar was among the subjects to be discussed.  Again, the goal was, and still is, writing the best possible decisions.

The discussion of clear opinion writing led to one thing on which all Justices agreed:  Attorneys’ primary means of being heard by the Justices is in the written word.  They were unanimous in their view that briefs should be clear and to the point.  The Justices will see through weak arguments that are hidden behind flowery language, adjectives, string cites, and personal attacks on opposing attorneys or parties.  The Justices also agreed that telling them what the case is about is crucial.  Although the attorneys have lived with the case for years and know it in intimate detail, the Justices’ first look at the case is through briefing.  Tell them what the case is about and do not expect them to go digging through the appellate record to find out for themselves.

Although the Justices agreed on the importance of clear and concise briefing, their views diverged somewhat on the importance of oral argument.  They agreed that oral argument rarely changes opinions, but disagreed about its place in the process.  Justice Yegan, who acknowledged being more dependent on the written word than his colleagues, would do away with oral argument altogether if given the opportunity.  At the other end of the spectrum, Judge Perren seems to enjoy the back and forth of oral argument.  If he asks a question, he asks because he doesn’t know the answer and is looking to the attorney for information.  Interestingly, Justice Gilbert confided that he sometimes asks questions of attorneys in the hope the answer will influence his colleagues.  He acknowledged that attorneys don’t always take the hint.

Despite some disagreement about oral argument in general the Justices were unanimous on a few specific issues.  First, be respectful of the Court.  Justice Gilbert discussed some recent arguments in which attorneys interrupted justices, made disparaging remarks about opposing counsel, and generally failed to show the Court due respect.  Second, if the Justices specifically request oral argument, they are asking for a reason.  Don’t question the request; say yes and be in Ventura on the appointed day and time.  Finally, the Justices do not use oral argument as an opportunity to belittle or ridicule attorneys appearing before them.

In response to a question from the audience, the Justices discussed whether they will ever be issuing tentative rulings.  The short answer is “no.”  Though all three Justices agreed that tentative rulings will not be appearing any time soon in Division Six, the degree of opposition to the process varied.  Justice Yegan expressed clear opposition to appellate courts posting tentative rulings, stating that he finds no support for them in any statute, rule, or decision of the California Supreme Court.  Justice Gilbert was more open to potential for tentative rulings, stating that he sees nothing that prevents an appellate court from issuing tentative rulings.  However, he also made clear that he is not going to issue tentative rulings on his cases unless all Division Six Justices agree to do so.  Justice Perren seemed to express the view that attorneys requesting tentative rulings might want to be careful what they wish for, because a tentative might “cause the cement to harden around his feet” and decrease the likelihood that oral argument will persuade him to change his opinion.

These now too-infrequent visits by the Justices are always a reminder of one of the most important things that make Division Six special.  The Justices clearly respect and admire each other and truly work as colleagues.  And they all love their jobs and are passionate about what they do.  It is no doubt this dynamic allows them to continue to turn out “the best product possible,” as Justice Gilbert put it.

Michael McMahon is a partner at Carmel & Naccasha, LLP whose practice focuses primarily on employment litigation, advice and counsel, business, real estate and public agency litigation. To email Mike, click here or call him at 805-546-8785.