Court Programs at 4th District, Division 2

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Backlog Reduction and Case Management
Civil Appeal Docketing Statements
Fax Filing
Tentative Opinion Program
Volunteer Attorney Mediator Civil Appellate Settlement Program

Backlog Reduction and Case Management

In January 1996, Division Two had a backlog of approximately 300 fully briefed cases that had not yet been assigned for preparation of an opinion, resulting in delays of up to an additional year beyond the norm in civil cases. The court had been expecting an increase in justices and/or legal staff to deal with the backlog since it began to grow in 1990--no additional justices, and only one attorney in 1991 and another for 1996, had been authorized since 1987 despite steady increases in filings. But when it became plain that the additional resources would not be forthcoming, the justices concurred in a commonsense plan developed by the presiding justice to reduce the backlog and resulting delays of up to an additional year beyond the norm in civil cases.

The first objective was to prevent the further growth of the backlog by estimating the actual number of fully briefed cases the court would receive monthly and assigning all of those cases to the chambers and staff.

The second objective was to reduce the backlog by additional case assignments beyond what was necessary to prevent backlog growth. The court looked at several different levels of case assignments, balanced the need for backlog reduction against the impact of the additional work on the justices and legal staff, and determined that the backlog could be reasonably reduced over a two-year period. The appropriate assignments were planned, the justices agreed on the work increase, and the plan was presented to court personnel.

Led by the united justices and supported by a determined staff, the court met the monthly goals and increased the number of opinions filed each month by an average of almost 50 percent becoming one of the most productive courts of appeal in the state. Almost all cases are now assigned to chambers within a month after they have been fully briefed with little, if any, backlog in the chambers. The court continues to set case assignments according to an estimate of the number of cases coming fully briefed and to monitor its caseload to insure against the development of a new backlog.

Civil Appeal Docketing Statements

The First District Court of Appeal in San Francisco and Divisions One and Two of the Fourth District Court of Appeal in San Diego and Riverside require docketing statements to be filed in civil appeals within 10 days after filing the notice of appeal. The docketing statements are used for some or all of a number of purposes depending on the court: to dismiss untimely appeals and appeals from nonappealable orders and judgments; to focus the parties on the orders or judgments, or parts thereof, that are appealable; to consolidate or coordinate related cases; to expedite appeals with priority; to stay appeals in actions against debtors in bankruptcy; and to specify the parties to, and the title of, the appeal.

Division Two’s program is unique in two ways. First, a senior central staff attorney, who has specialized in jurisdictional and procedural aspects of appellate law, scrutinizes each notice of appeal, docketing statement, and attached judgment or order appealed. The court believes that a specialized and experienced attorney provides the most accurate and expeditious review of the technical issues involved in each civil appeal.

Second, the court’s policy is to dismiss without prejudice appeals from nonappealable orders rather than attempting to create an appealable judgment from a nonappealable order. (See Shpiller v. Harry C’s Redlands (1993) 13 Cal.App.4th 1179-1180; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1608-1610.) Thus, appeals from orders sustaining demurrers without leave to amend and from orders granting summary judgment are routinely dismissed without prejudice to filing a new notice of appeal when an order or judgment of dismissal or summary judgment is entered.

Tentative Opinion Program

Every court of appeal in California, and most intermediate appellate courts throughout the country, prepare a "bench memorandum" prior to oral argument. These memoranda often take the form of draft opinions and often become the final opinion of the court with little, if any, modifications. The great majority of appellate courts do not send the draft opinion to counsel prior to oral argument, and, as a result, counsel are completely unaware of the court’s initial response to the arguments in their briefs and do not know how to focus their oral argument. Consequently, oral argument is often a dry, meaningless ritual in which counsel merely review the arguments set forth in their briefs.

To improve the quality and relevance of the oral argument experience, the justices of this court in October 1990 started mailing the preliminary draft of the opinion, which they called the "tentative opinion," to counsel seven to ten days before oral argument. As a result, the justices of this court have found oral argument more useful in assisting the court to reach a decision. The justices do not sense that their deliberations are any less objective than before the tentative opinion program began. Counsel almost unanimously praise the program.

Issuance of the tentative opinion before oral argument has significantly reduced the time spent on oral argument in two ways. First, argument has become more focused and taken less time as counsel can concentrate on the issues found significant by the court. Second, counsel often decide to waive oral argument once they see the court’s tentative opinion. Thus, the program has increased both the quality and efficiency of the court resulting in a savings to taxpayers.

Volunteer Attorney Mediator Civil Appellate Settlement Program

After a four-month trial run in 1991, this court commenced its civil appellate settlement program using volunteer attorney mediators. Eighty mediators were selected from among the most respected attorneys in the Riverside and Riverside County bar. The court focused the program on fully briefed appeals that had not yet been assigned to a chambers. The volunteer mediators removed approximately 300 civil appeals from this court’s backlog over a period of five years saving taxpayers hundreds of thousands of dollars. In recognition of that success and the program’s efficiency, the Chief Justice of the Supreme Court and Judicial Council honored the program in 1996 with a Kleps Award for innovative judicial programs.

As the court became current in the assignment of civil appeals for preparation of an opinion, the court shifted the settlement program focus to pre-briefing cases. The Presiding Justice now screens cases when the docketing statement is filed, and assigns about 30 percent of the cases selected to the settlement program. Once selected, participation is mandatory. Mediators specializing in the area of law involved in the appeal are matched with the case. The mediators often spend several hours prior to the first settlement conference reviewing the settlement statement provided by the parties and the record when necessary. The conferences are held at the court, and the mediators often require the parties to return for additional negotiations after the initial meeting. The percentage of cases settled has risen over the life of the program from 30 percent of the cases in which one or more settlement conferences are held to 40 percent .