45 HSTLJ 433
(Cite as: 45 Hastings L.J. 433)
Hastings Law Journal
Special Report on California Appellate Justice
*433 A REPORT ON THE CALIFORNIA APPELLATE SYSTEM [FNd]
By J. Clark Kelso [FNa]
Copyright © 1994 Hastings College of the Law; By J. Clark Kelso
Although the right to appeal is not recognized as one of our fundamental rights of due process or equal protection, the ability to appeal an adverse decision would nevertheless appear to be one of the most cherished indicia of civilized government. [FN1] We learn at a very early age that one way to avoid having our toys taken away by an older sibling or playmate is to protest this unfair treatment to the nearest authority figure -- usually a parent. And if relief is not granted by one parent, we seek help from the other parent.
The underlying sentiment that there is (or must be) a higher authority which may be consulted to correct injustice has been ingrained in formal, governmental dispute-resolution systems throughout recorded history. The right of appeal has been a component of governmental *434 dispute-resolution systems for at least 6000 years. Ancient Egypt (circa 4000 B.C.E.) is one of the earliest known societies to incorporate some form of appellate process. [FN2]
This is not to say, however, that every judicial system has included a right to appeal. To the contrary, certain well-developed judicial systems dispensed with appeals altogether, being satisfied with the final judgment of the initial tribunal. Ancient Greece (circa 450 B.C.E.) provided one of the earliest and most famous of these systems. There, the tribunal of first instance -- numbering from 200 to several thousand citizens of the city -- was also the court of last resort. [FN3] The fact that there was no appeal from the tribunal's judgment was, no doubt, due in part to the intensely democratic nature of Greece's city-states. Simply put, the people were the highest authority. When the jury of several hundred had rendered its decision, the people had spoken.
In the United States, however, legal systems have almost always included a right of appeal to a higher judicial authority. As one appellate judge noted, 'The opportunity to take one's case to 'a higher court' as a matter of right is one of the foundation stones of both our state and federal court systems. ' [FN4] There is nothing necessarily better or more just about the decision of a higher authority; such decisions are followed not because they are always better, but because they are decisions from a higher authority. As Justice Jackson noted, 'We are not final because we are infallible, but we are infallible only because we are final.' [FN5]
There are legitimate reasons for maintaining an appellate system apart from historical practice. Traditional wisdom involves the following core reasons for permitting appeals in our common-law system: (1) to correct errors committed by the tribunal from which the appeal is taken; [FN6] (2) to have a consistent, uniform declaration of what the law is, not only in the case on appeal, but also as it will be applied to *435 similar cases in the future; and (3) to satisfy the public's demand for justice, which includes a demand that important grievances be heard and resolved by the highest possible governmental authority. [FN7]
In addition to these core goals, an appellate system, being only one part of a much larger justice system, must strive to meet the broader goals of the entire judicial system. Indeed, the California Courts of Appeal and Supreme Court, by virtue of their status as courts of last resort, [FN8] should set a model of leadership for the administration of justice. These broader goals include at least the following: [FN9]
1. Analyze and plan for the future of the California court system.
2. Implement an improved system for predicting the need for judicial resources.
3. Improve mechanisms to provide adequate funding for the judicial system.
4. Identify and utilize technology that can assist in improving access to the courts.
5. Develop statewide records-management policies.
6. Adopt statewide facility standards and determine statewide facility needs.
7. Improve and expand bench officer training and access thereto.
8. Improve efficiency in the judicial system through staff and management development programs.
9. Improve fairness in the courts.
10. Promote public understanding of the judicial system.
11. Improve access to justice by increasing judicial resources, providing alternatives to litigation, and reducing the cost and complexity of court proceedings.
12. Reduce unnecessary delay in trial courts.
13. Reduce unnecessary delay in appellate courts.
14. Improve the function of juvenile law, family law, and other proceedings involving children and families.
15. Encourage reduction in unnecessary disparity between local court rules.
16. Improve the administration of the traffic adjudication system in the courts.
17. Recognize and honor contributions to the administration of justice.
*436 The future of the appellate system in California must be assessed against the core goals of appellate review and the broader goals of our judicial system. Such an assessment may be conveniently divided into three parts: (1) access to appellate review; (2) the appellate process; and (3) the public output of the appellate courts.
Our system of appeals involves more than just process. Appellate courts have complex relationships with other components of the judicial branch, [FN10] with other branches and levels of government, and with various public constituencies. [FN11] This Article reviews both the appellate process and the relationships between the appellate courts and other groups.
*438 I. Access to Appellate Review
Although the United States Constitution does not require a state to provide an appellate system, every state does so. [FN12] In California, rights to appeal are created both by the California Constitution and by statute, and appeals are heard by three different appellate courts: the appellate department of the superior court, the court of appeal, and the supreme court.
A. Access to and Workload of the Superior Court and the Appellate Department of
the Superior Court
The superior court and the appellate department of the superior court, which exercise jurisdiction over appeals from decisions of the municipal and justice courts, process more appeals than the court of appeal. [FN13] From 1991 until 1992, for example, the superior court and its appellate department disposed of 23,595 appeals. [FN14] An extraordinarily small percentage of municipal and justice court cases are appealed: From 1991 to 1992, only 3.25 percent of civil dispositions were appealed (23,626 cases), and only 0.034 percent of criminal dispositions were appealed (4,435 cases). [FN15]
The appellate department sits in three-judge panels, with judges drawn from the superior court. In most counties, judges are assigned only part-time to the appellate department, and superior court judges from other counties are assigned in some counties that have fewer than three superior court judges. [FN16] Because of its workload, the appellate department in Los Angeles has four full-time judges. [FN17]
Appellate departments function in much the same way as do courts of appeal. The record of proceedings in the trial court is prepared *439 for review, briefs are filed, oral argument is held, [FN18] and at least in Los Angeles, each case is disposed of by written opinion. [FN19] Although appellate department opinions may be published in accordance with California Rules of Court, [FN20] the overwhelming majority of appellate department decisions result in unpublished opinions.
Decisions by the appellate department are not appealable to the court of appeal. Appellate department cases only reach the court of appeal upon department certification to the court of appeal or upon a court of appeal's order to transfer a case from the appellate department. [FN21] Thus, except in the unlikely event the supreme court grants a petition for a writ of certiorari, the decision by the appellate department is the final decision.
Because of the number of cases processed by the superior court and its appellate department and the lack of further review by the court of appeal, it is fair to describe California's appellate system as including two intermediate appellate courts that share the intermediate appellate workload. When California's trial-level courts are unified into one trial court -- a process that will surely be completed long before 2020 -- the importance and independence of the appellate department will become clearer.
B. Access to and Workload of the Court of Appeal
The court of appeal has appellate jurisdiction in all cases over which the superior courts have original jurisdiction, and in certain other cases as provided by statute. [FN22] The court of appeal has original jurisdiction in habeas corpus, mandamus, certiorari, and prohibition proceedings. [FN23]
Only a very small percentage of decisions by the court of appeal are reviewed by the supreme court, [FN24] and as a practical matter, the court of appeal ends up being the court of last resort in the overwhelming *440 majority of cases. Despite this fact, the literature on the appellate process traditionally asserts that the primary function of an intermediate appellate court is to correct errors, and that its secondary function is to guide the development of the law. [FN25] Although historically this hierarchy of functions may have been appropriate, the exploding appellate caseload and the supreme court's limited capacity to review significant numbers of intermediate appellate decisions strongly suggests that today and in the future the court of appeal must view itself as having an equal responsibility not only to review for correctness, but also to harmonize and guide the development of the law.
The court of appeal has little direct control over litigants' access. Although the court of appeal has discretion to consider certain types of extraordinary writs, most of the work brought to the court of appeal involves appeals of right. In 1991 to 1992, the eighty-eight justices of the court of appeal were faced with 21,628 new appellate records filed in contested matters (246 per justice), which represents a thirty-seven percent increase over the number of appellate records filed within the last decade. [FN26] During that same decade, there was a thirty-nine percent increase in the number of superior court filings and a fifty-one percent increase in the number of superior court dispositions; this represents a significant improvement in superior court efficiency. [FN27]
Common sense suggests an important factor in the number of appellate filings is the number of cases filed in and disposed of by the superior courts. Assuming the rough equivalence between superior court filings and appeals is maintained in the future, we can anticipate appellate filings will be approximately 22,675 in 1995 (thirteen percent over 1990 figures), 23,183 in 2000 (sixteen percent more than in 1990), and 23,622 in 2005 (eighteen percent over 1990 filings). [FN28]
*441 California is actually well on its way to exceeding these projections by wide margins. As noted above, in 1991 to 1992, 21,628 new appeal records were filed. This represents a 7.88 percent increase over the figures for 1990 to 1991. The increase was led by an eleven percent increase in civil appeals, a thirteen percent increase in criminal appeals, and a twenty-three percent increase in juvenile appeals. [FN29] Including all notices of appeal for 1991 to 1992, the court of appeal was faced with 24,322 new filings and disposed of 22,415 cases during the same period (11,718 of these dispositions by written opinion). [FN30]
It will be increasingly difficult for the court of appeal to process the growing number of appeals. At present, the court of appeal is organized into six districts (eighteen divisions) with a complement of eighty-eight justices. [FN31] Those eighty-eight justices produced 11,718 written opinions in 1991 to 1992, for an average of 127 majority opinions per judge-equivalent. Furthermore, because the court of appeal sits in panels of three, each justice is involved in over 375 dispositions per year. [FN32] These numbers already exceed the recommendation of Professors Carrington, Meador, and Rosenberg, who advise: 'In the absence of special circumstance, no state appellate court operating at the first level of review should be asked or permitted to make more than 100 dispositions on the merits per judgeship per year.' [FN33] Moreover, the court of appeal's 'clearance rate' (the number of dispositions in a given year divided by the number of appeals filed) has been steadily dropping for the last several years and fell below the break-even point in 1991. [FN34]
In light of the rising caseload, the future for the court of appeal looks problematic unless changes are made to California's appellate system. There are two ways to decrease the court of appeal's workload per justice without altering the processes it uses to dispose of its *442 cases: (1) increase the number of appellate justices or staff or both; and (2) decrease the number of appeals.
(1) Increase the Number of Appellate Justices or Staff or Both
Assuming numbers of both filings and written opinion dispositions continue to increase and no action is taken to decrease the number of appeals or improve efficiency, by 1995 some 125 justices (forty-two percent over the current number) will be needed to produce an expected 13,190 opinions at the rate of 105 opinions per judge. At the same rate of increase and based on a straight- line projection, more than 200 new appellate judges (127 percent over current numbers) will be needed to meet the anticipated caseload in the year 2020. Arguably, such an increase in the size of the court of appeal could compromise the cohesiveness of the law and further undermine the supreme court's ability to assure consistent state-wide actions by the lower courts. [FN35] It also remains doubtful whether California's current and continuing budget crisis will permit such an increase in the number of appellate judges, especially in the near term. Nevertheless, the California legislature must soon seriously consider adding more appellate justices.
Fifty years ago, the appellate court staff was relatively small, and an appellate judge -- who fully authored her own opinions -- may have relied upon her clerks to perform only truly clerical tasks. Those days have long since vanished.
The modern appellate court simply could not operate without relying significantly upon a professional and efficient staff. [FN36] At literally every step in the appellate process, staff help is critical. A judge's primary function is to make the ultimate decision -- to cast one of three or one of seven votes. Prior to making that decision, someone must sift painstakingly through the record, perform additional legal research to confirm the parties have found and cited all of the relevant authority, draft the skeleton of an opinion ( e.g., statement of facts) *443 upon which every decision can be built, and devote time and energy to other decision-making tasks. These are tasks a modern appellate judge often delegates to staff attorneys, who are either short-term clerks or career attorneys.
There is reason to believe additional staff attorneys at the court of appeal would significantly improve that court's efficiency at a much lower cost and with more resultant efficiency than the appointment of new appellate judges. At present, each court of appeal justice is allocated only two research attorneys. [FN37] By contrast, each California Supreme Court justice has five clerks. Many court of appeal judges believe they could easily supervise additional clerks, including up to five clerks as used effectively by the supreme court. The addition of one to three clerks per appellate justice would have a marked impact upon the efficiency of case processing. The Judicial Council, the policy-making body for California's courts, should study this proposal.
(2) Decrease the Number of Appeals
Another way to address rising appellate caseloads is to decrease the number of appeals taken to the court of appeal. Four strategies for reducing the number of appeals stand out for consideration: (a) imposing economic deterrents to appeal; (b) making more appeals discretionary; (c) reassigning appeals in some categories of cases to the appellate department of the superior court; and (d) reducing the need for appeals by reducing the likelihood of trial court error.
a. Providing Economic Deterrents to Appeal
Economic factors already deter civil litigants from filing appeals. Besides additional attorneys fees, civil litigants bear the expense of having the trial court record prepared for appeal. There is also a cost associated with the delay of an appeal, which can prolong litigation for one, two, or more years. [FN38] These cost-related deterrents are virtually nonexistent in criminal appeals because the appellant is often indigent and thus the state has a constitutional responsibility to provide adequate *444 defense resources. As a result, the costs of a criminal appeal are often borne by the state, free of charge to the appellant. [FN39]
A substantial additional economic deterrent to filing meritless civil appeals could be achieved by imposing upon losing parties the state's actual costs. The amount of such costs is unknown at present, and estimates vary widely. Actual costs to the state for criminal appeals might indicate similar costs for civil actions. For example, according to one estimate, an ordinary criminal appeal may cost taxpayers an average of $50,000. [FN40] A court put the figure at only $6,000 per criminal appeal, however. [FN41]
Even if the cost to the state could be reasonably quantified, there remains the difficult policy question of whether judicial services in civil cases -- an essential governmental function -- should be financed from tax revenues (and other sources of revenue such as court fines) or from charges imposed on users. On the one hand, there is a certain fairness in requiring those who use governmental services, including the courts, to pay for those services. On the other hand, charging a user fee for filing a good faith civil appeal is somewhat inconsistent with the traditional view that everyone is entitled to at least one appeal. Moreover, the risk of losing on appeal, and thus having to pay for an appeal,will undoubtedly deter some meritorious appeals. Thus, potential user fees undermine at least two of the core goals of the appellate system: correcting errors (because more trial court errors will go uncorrected) and satisfying the public's demand for justice (because economic burdens will make it more difficult to file meritorious civil appeals).
Criminal appeals present entirely different problems. The Due Process and Equal Protection Clauses of the Constitution require states in criminal cases to provide indigent defendants with the same access to appellate courts as wealthy defendants. To that end, states must provide legal counsel for defendants who are unable to afford it. [FN42] The absence of any economic deterrents to appeal, combined *445 with the serious consequences of a criminal conviction, results in a high proportion of appeals in criminal cases notwithstanding a low reversal rate. [FN43] Since an economic penalty against either appointed counsel or indigent appellant for filing and losing an appeal in good faith is both impractical and probably unconstitutional, some commentators have suggested that indigent appellants could be encouraged not to appeal with economic incentives. For example, indigent criminal appellants could be offered the choice of receiving a free appeal, which might cost the state tens of thousands of dollars, or receiving a cash credit, which might, for example, be $5,000 immediately upon waiving right to appeal or $5,000 upon release. This type of program would save the state money and reduce the number of meritless criminal appeals. There remains, however, the serious constitutional question of whether such an incentive program is consistent with the state's obligation to provide indigent defendants with an equal opportunity to appeal criminal convictions. [FN44]
Overall, there is little hope that new economic deterrents to appeal (or incentives not to appeal) will reduce the appellate caseload in California.
b. Increasing the Number of Discretionary Appeals
Appellate caseloads could be reduced by authorizing the court of appeal to exercise greater control over its docket through limiting the categories of cases in which appeals are mandatory. At present, a relatively high rate of appeal (about twenty-three appeals for every 100 contested civil cases and about 152 appeals for every 100 convictions after contested trials) is linked with extremely low rates of success by appellants, particularly in criminal appeals (during 1991 and 1992 about six out of 100 criminal appeals and twenty- five out of 100 civil appeals resulted in reversal). [FN45]
*446 California could control access to the court of appeal through petitions for review in place of its current practice of allowing every litigant one appeal as a matter of right. Using such a procedure, the court of appeal might dispose of much of its current workload without hearing oral arguments or drafting opinions in every case. Instead, the court of appeal might review each record in light of each petition for review, and, if it appears no meritorious issues for appeal are presented, deny such a petition with a one-sentence order.
However, eliminating a litigant's appeal as a matter of right has extremely troubling implications and consequences. First, even if due process would permit California to abandon appeals as a matter of right, the public's perception of the judicial system would surely suffer, given its long-standing tradition that every litigant has a right to appeal. How would the public react to being told that, notwithstanding trial court errors that may occur in litigation in which they may be involved, the court of appeal could refuse even to hear the appeal by denying the petition for review?
Second, full briefing, oral argument, and the requirement of a written opinion are designed to impress upon the court of appeal its responsibility to consider carefully and then to explain reasonably its disposition of a case. A petition for review procedure could result in the court of appeal shirking its case-by-case responsibility in favor of judicial economy. There would be the additional risk that whole classes of cases might be denied review routinely and unceremoniously because particular appellate judges believe such cases are not worthy of significant court time ( e.g., appeals from guilty pleas in criminal cases).
Third, it is unclear how much time and effort instituting a petition for review procedure would save. Counsel would still have to present full briefs setting forth alleged errors in the trial court proceedings. The court of appeal would still have to evaluate those contentions on their merits. Thus, the only real savings would include reductions in time and resources spent on the number of both oral arguments and written opinions. There are, however, other ways of addressing the oral argument problem, [FN46] and since unpublished opinions already tend to be shorter than published opinions, it is unclear how much judicial energy actually would be saved.
Giving the court of appeal complete control over its docket through petitions for review would be a poor way of addressing the *447 appellate caseload dilemma. Such a procedure would undermine the public's confidence in the judicial system, and the benefits are speculative and perhaps minimal. That is too high a price to pay for docket control. [FN47]
c. Increasing the Use of the Superior Court Appellate Department
Diverting select court of appeal cases to the superior court appellate department stands out as one of the most likely responses to increasing court of appeal caseloads. This option would preserve appeal as a matter of right, an important part of our appellate tradition, but would still reduce the court of appeal's caseload.
Simply transferring appeals from the court of appeal to another tribunal would effect no net savings -- and would thus be unjustifiable -- unless the other tribunal could handle the cases more speedily or accurately. Arguably, the appellate department of a superior court, which is staffed by trial judges who might have direct access to the trial court's file, could handle appeals more speedily and accurately when the issues are limited to questions of trial procedure under established law, repetitive application of certain statutes, or exercise of trial court discretion. For example, appeals after guilty pleas might be routed to the appellate department because they often raise issues pertaining to sentencing errors or trial procedure errors. [FN48] Such a shift would significantly lighten the court of appeal's docket without depriving criminal defendants of appeal as a matter of right. These limited types of appeals would be disposed of more quickly by the superior court appellate department because of its proximity to the trial court.
d. Reducing the Need for Appeals
The best way to lighten the appellate caseload is to reduce the need for and number of trials and diminish errors committed in those *448 trials. Although these factors may not seem to be within the control of appellate courts, rules of law and rules of court adopted by appellate courts in fact have a direct impact on both how many disputes result in trials and how well those trials are conducted.
Certain disputes will reach the trial courtrooms no matter which rules of law are adopted. Indeed, the entire judicial system exists precisely to resolve disputes justly; efficiency for its own sake is not the sole or even a primary consideration.
However, appellate courts can formulate rules of law that would reduce the number of disputes, particularly civil disputes, and would diminish the number of trial errors. A reasonable litigant will not go through the expense and trauma of a trial (or an appeal) unless there is at least a substantial or reasonable likelihood of success. Since it takes two to litigate, cases will go to trial only if both parties think they have a chance of winning, and this is when appellate courts can exercise some influence. 'Lawsuits are fought if both sides think they have a shot at winning. The more stable and certain the law, the less the chance that both sides will think they can win.' [FN49]
Law is made less certain in many different ways. The size and structure of the appellate system may itself create uncertainty. The more opinions there are in a common-law system of precedents, the more likely there will be inconsistent opinions and uncertainty in the law. The more judges there are deciding the cases, the more likely there will be conflicts in the law stemming from inconsistent interpretations of the law and case precedents. This reasoning suggests that expanding the number of appellate judges in an effort to address rising caseloads might actually have the effect of increasing the number of appeals.
Of even greater importance, rejecting narrow rules of law in favor of general standards to be applied by a fact finder makes every case a possible winner for both plaintiff and defendant. The result is an incentive for both parties to litigate. One of the best examples is Justice Cardozo's replacement of a 'stop, look, and listen' rule in railroad crossing cases with a general standard of reasonableness. [FN50] The stop, look, and listen rule had screened out many cases that, under the general *449 standard of reasonableness, suddenly became open to litigation. In California, the clear rule forbidding emotional distress recoveries in negligence cases (except when the emotional distress was an aggravation of a personal injury or property damage) [FN51] was replaced by a rule permitting recovery in certain cases depending upon a balancing of factors. [FN52] The change has resulted in confusion in the law, not only in the trial courts, but among the California Supreme Court's own precedents. [FN53]
Similar ambiguities in other areas of the law have also encouraged litigants to bring lawsuits. For example, the abandonment of contributory negligence in favor of comparative fault has encouraged plaintiffs, who otherwise may have been reluctant, to throw the litigation dice. [FN54] The long and confusing history of products liability in California has kept thousands of lawyers employed for more than thirty years trying to decipher the law. [FN55] Most recently, the California Supreme Court decided a pair of implied assumption of risk cases that has left everyone guessing. [FN56]
*450 Admittedly, there are times when a general standard is appropriate. But by the same token, general standards should not be pursued for their own sake. For example, new jury questions should not be created when a rule of law would do the job just as well. The appellate courts have an obligation to guide the development of the law in a way that gives the public some sense of certainty and predictability. Indeed, that is one of the core functions of an appellate court. [FN57] Developing stable, certain, and predictable rules of law may be the most important thing appellate courts can do to reduce not only their own caseloads, but also the burden placed upon trial courts.
C. Access to and Workload of the California Supreme Court
As the highest court in the state, the California Supreme Court, consisting of a Chief Justice and six associate justices, is primarily responsible for deciding cases that raise important issues of public concern and maintaining uniformity in state law. [FN58] Because the supreme court's primary function is to guide and harmonize the development of state law, it is important that the court be given as much control as possible over its own docket. In fact, access to the supreme court is quite limited, unlike access to the court of appeal. The court has original, but purely discretionary, jurisdiction in cases seeking extraordinary relief in the nature of mandamus, certiorari, prohibition, and habeas corpus. [FN59] Moreover, the court's general appellate jurisdiction over other civil and criminal appeals is by a petition for review. [FN60] For the most part, the supreme court has been given significant, almost absolute, control over its docket.
California's supreme court experienced the same sort of workload increase felt by the court of appeal during the past decade. The supreme court faced 5,403 filings in the 1991-92 term (772 per justice), up thirty-six percent from the 3,969 filings in 1982-83. [FN61] Much of the *451 increase is attributable to increasing review of attorney disciplinary proceedings, [FN62] and a 116 percent increase in original proceedings (virtually all of which was attributable to an increase in habeas filings). [FN63]
Although the supreme court processes many more filings per justice per year than does the court of appeal (772 per supreme court justice compared to 246 per court of appeal judge), [FN64] this discrepancy is not indicative of the relative burdens borne by each court. The supreme court controls its docket by refusing to grant review in most cases. [FN65] In 1991 to 1992, the supreme court granted review in only five percent of the filed petitions for review, and 44.7 percent of that five percent were either grant and holds or grant and transfers; neither dispositions require as much court time as full review. [FN66] When denial of review and holds or transfers are removed from the statistics, the number of filings processed per justice is reduced to 265. The supreme court also rations its resources by resolving a large number of original proceedings without written opinion (1,204 in 1991 to 1992). [FN67] It takes less time per case for the supreme court to determine which petitions are worthy of review and to dispose of many original proceedings without opinion than it does for the court of appeal to give each appeal plenary consideration followed by a written opinion.
Because the supreme court's primary function is to guide and harmonize the development of the law (rather than to decide individual cases), the court must have as much control as possible over its own docket. Until recently a significant portion of the court's docket concerned automatic review of certain attorney discipline matters. Fortunately, that extravagant use of the court's limited resources was ameliorated in 1991 by converting to discretionary review all State *452 Bar Court decisions. [FN68] The court's mandatory jurisdiction now is limited (1) to death penalty appeals [FN69] and (2) to appeals from decisions of the Public Utilities Commission (PUC). [FN70]
(1) Review of Death Penalty Appeals
Capital cases remain a significant portion of the California Supreme Court's workload. [FN71] Although the total number of capital appeals is small compared with all appeals filed in California's appellate system (there were only 36 automatic appeals from 1991 to 1992 compared with the 21,628 appeals filed in the court of appeal), [FN72] the fact that those appeals are concentrated in the supreme court magnifies the burden on the appellate system. The supreme court issued eighty-nine written opinions from 1991 to 1992 (thirteen majority opinions per justice), but twenty-six of those opinions (twenty percent of the total and almost four per justice) were in capital cases. [FN73]
These percentages do not completely portray the supreme court's capital case burden, however. Because capital cases are appealed directly to the supreme court, that court has the responsibility of reviewing each case fully to correct prejudicial errors, discharged in virtually all other cases by the court of appeal. Moreover, capital cases tend to be lengthier and more complex than most other criminal cases, which again increases the burden on the court's resources. It may take a court staff attorney as long as six to nine months working full-time to prepare a capital case for consideration by the justices. As Chief Justice Lucas noted, one recent capital case involved review of 80,000 *453 pages of material. [FN74] Another measure of the burden is found in the total number of pages devoted to capital cases in the official reports. During 1991, for example, opinions in twenty-six capital cases filled 1,656 pages out of a total of 3,454 pages for all opinions during the year. [FN75] Thus, a remarkable forty-eight percent of the text of the court's opinions were devoted to death penalty review.
In addition to workload burden, concentrating capital cases in the supreme court may create unusual pressures on the development of the law. When such a significant portion of the court's criminal docket involves one type of case, there is a risk the court will develop a skewed perspective on criminal law issues. [FN76] There may also be a psychological toll on the justices when considering capital cases. Other commentators have noted possible changes in application of the 'harmless error' rule in capital cases, [FN77] and in consideration of evidentiary questions that may be a result of the court's concentration on capital cases. [FN78] More generally, political attention on the court in the mid-1970s focused primarily on its capital docket. [FN79] Finally, when such a significant portion of the court's work is devoted to a single type of case, its general obligation to oversee the development of California law may suffer. Other commentators have noted, for example, that the court's increasing reliance on depublication of court of appeal *454 decisions may in part be a result of the supreme court's inability to take such cases for full review. [FN80]
There are several suggestions for reducing the court's capital case burden: (1) repeal the death penalty; (2) create a special court to handle death penalty appeals; and (3) give initial appeal to the court of appeal in capital cases and make supreme court review discretionary. Each suggestion has advantages and disadvantages.
a. Repealing the Death Penalty
Repealing the death penalty would have the most dramatic effect upon the supreme court's docket. Given the widespread public support for the death penalty, however, it seems unlikely it will be repealed in California anytime soon. Moreover, relieving the appellate system of the burden of considering death penalty appeals is not a particularly strong reason -- and certainly not a decisive reason -- for repealing the death penalty. Instead, the death penalty should be evaluated upon its own merits as a means of deterring criminal conduct, expressing society's outrage at particularly heinous crimes, and fulfilling society's demand for retribution. Once the legislature or the people determines that the death penalty is an appropriate form of punishment in certain cases, it then becomes the judiciary's obligation to implement that policy decision in a reasonable manner.
b. Creation of a Special Court for Death Penalty Appeals
Some suggest the creation of a special court for death penalty appeals. There are several problems with this suggestion. First, the justices on such a special court would receive an unhealthy judicial diet of nothing but death penalty cases. Second, concentrating all death penalty appeals in one court would make that court an easy target for public criticism and political maneuvering. Third, there is no reason to believe a special 'death court' would do a better job of handling appeals than either the supreme court or the court of appeal. In any event, its decisions would undoubtedly be reviewable by the supreme court. Thus, creating a special court of appeal for capital cases is an unattractive proposal.
*455 c. Discretionary Supreme Court Review in Capital Cases
Others suggest the mandatory appeal to the supreme court of capital cases should be repealed. This change would allow capital appeals to be handled just like any other criminal appeal. Thus, appeals would be of right to the court of appeal and supreme court review would be only by petition. If implemented, the supreme court may be relieved of some of its capital case burden both in the number of capital cases on the court's docket and in the type of review afforded these cases. [FN81] On the other hand, introducing an additional level of appellate review might actually slow down the processing of capital cases and increase their expense, thereby contributing to the public's perception that the judicial system does not competently handle capital cases. [FN82]
A variation on this proposal could relieve the supreme court of its duty to consider guilt-phase issues on appeal by granting the court of appeal review of those issues. The supreme court's mandatory jurisdiction in capital cases would be limited to a review of penalty-phase issues only. This method would insure some consistency and proportionality for capital cases -- although the United States Supreme Court has not required such proportionality as a matter of its Eighth Amendment jurisprudence [FN83] -- yet would have the benefit of relieving the supreme court of at least some of the burden associated with capital appeals.
Although there is no consensus, something must be done to alleviate the backlog. There are some 381 prisoners sitting on death row. [FN84] At the court's present rate of deciding appeals in these cases, it would take ten years just to process the existing capital cases, and, as Chief Justice Lucas noted, juries are imposing the death penalty at a *456 rate of about forty- eight per year. [FN85] The supreme court simply does not have the capacity to process these appeals without substantially interfering with its other important obligations to guide California law.
(2) Review of Public Utilities Commission Decisions
The California Supreme Court has exclusive jurisdiction to review decisions of the Public Utilities Commission by a writ of certiorari procedure. [FN86] Although there are relatively few such decisions for review per year, [FN87] PUC cases tend to involve complex factual records and difficult policy questions that consume the court's limited resources. The California Select Committee on Internal Procedures of the Supreme Court recommended in 1988 that initial review of PUC decisions should be transferred to the court of appeal. [FN88] The PUC opposed this proposal, arguing there are few such appeals in any event, and the cases involve substantial amounts of money and have statewide impact requiring prompt review. [FN89] These arguments are unpersuasive, since the court of appeal and superior court routinely handle many administrative decisions involving huge amounts of money and having a statewide impact. Moreover, if there is a genuine need for prompt review, procedures exist at both the superior court and appellate level to secure quick review. There is thus no rational basis for continuing to treat each PUC decision as though it necessarily involves issues so critical to the state that they require immediate supreme court review. PUC decisions should be routed first to the court of appeal, with ultimate review retained by the supreme court pursuant to a petition for review process. [FN90]
*457 II. The Appellate Process
The appellate process in America has become somewhat standardized over the years. Although there are variations in some details, once a notice of appeal has been filed, [FN91] an appeal typically involves the following steps: (1) the trial court clerk prepares a record from the lower court transcript; (2) counsel prepare and file adversary briefs; (3) in an initial review, the appellate court determines whether the appeal qualifies for special treatment ( e.g., settlement programs, decision without oral argument, denial of review, or alternative disposition in discretionary appeals); (4) counsel argue orally before a panel of three or more judges; (5) the appellate court reaches a decision (which includes preargument analysis, a postargument conference, and collegial drafting of the opinion or opinions); and (6) the appellate court publicly releases its opinion.
At each step in this process, there may be room for increased efficiency, although it should be stressed that the California Supreme Court and California Courts of Appeal appear to be operating at or very near their capacity and are, by and large, operating efficiently. Thus, many of the proposals for change suggested in this paper involve omitting or significantly reducing one or more of the major steps in the appellate process. However, such proposals come at a high cost to the appellate system. The wisdom of adopting such proposals depends upon a critical balancing of the risks and benefits of each, and reasonable minds may differ in striking that balance.
A. Preparing the Record for Appeal
By most accounts, the most significant source of appellate delay (defined as the time from filing a notice of appeal to final appellate disposition) is the time it takes to prepare the record for appeal. [FN92] *458 Although rules prescribe a thirty-day period for preparation of the reporter's transcript and clerk's transcript in civil cases, [FN93] 'the actual median experience for civil and criminal record filing is four times greater than that prescribed by the rules: Averages of current statistics for median record preparation times in all reporting units are 121 days in civil cases, eighty-four days in criminal, and forty-five days in juvenile.' [FN94] At present, the record for appeal is usually prepared by the clerk of the superior court after portions of the record have been designated by the parties for inclusion in the record on appeal. The reporter's transcript is prepared by court reporters. Both the cost of preparing the record and the delay that process engenders indicate that the preparation of the record is a significant problem with the appellate system.
Both the cost and delay associated with preparing the record for appeal may be reduced. The following short-term proposals should be considered: (1) require the appellant to prepare the record (in consultation with appellee) rather than the clerk of the superior court, at least for civil cases in which appellate counsel is very likely to be the same as trial counsel; [FN95] (2) encourage the appellant to file the record (in consultation with appellee) in an approved computer form, for example, ASCII files or one of the widely used word processing formats; and (3) give scheduling priority to appeals on less than a full record, thereby encouraging the filing of such appeals.
In the long-term, technological developments should make delays associated with preparation of records on appeal disappear entirely. Nearly all trial court filings will be in an electronic medium, and the reporter's transcript, which will be created using computer-assisted technology, will be immediately available. Preparing an appellate record in a paperless court will be as simple as transmitting the entire *459 case file from the trial court's computer system to the appellate court's. It is thus very much in the interest of both trial and appellate courts to experiment with electronic filing and jointly to foster creation of electronic records. Besides avoiding delays in record preparation, expedited review of cases in which counsel submit the entire record and complete briefs on computer disks in a common format, such as WordPerfect, would create a real incentive to facilitate achievement of the paperless court.
When this category of delay disappears -- as it surely will by 2020 -- California will undoubtedly discover a bottleneck at some other point in the process. For instance, if the delay in preparation of the record, which discourages a certain number of appeals and slows down many others, were suddenly to disappear, how would the court of appeal process the flood of cases?
B. Preparing and Filing Adversary Briefs
California follows the long tradition in the United States of requiring an appellant to file a brief setting forth alleged errors committed by the lower tribunal and providing legal authorities to support appellant's position. The appellee is then given an opportunity to file a brief in response. And finally, the appellant is usually given the opportunity to file a reply brief.
Appellate judges are well aware, of course, that briefs are usually anything but brief. Some cases require exhaustive briefing, but it is questionable whether full briefing was necessary in all of the 11,000-odd appeals from 1991 to 1992 that resulted in a written opinion. In England, for example, oral argument is of much greater importance than the written brief, which apparently lives up to its name in brevity. [FN96] Although no one would seriously suggest entirely dispensing with written briefs, there have been proposals to reduce the amount of briefing in certain types of cases through an increased reliance upon an oral presentation of possible grounds for appeal. Such proposals are particularly appropriate for certain types of criminal appeals in which the issues may be relatively simple and few in number. [FN97]
Indigent criminal appeals in which appointed counsel has determined the appeal is meritless comprise one class of cases in California for which appellate courts receive no briefing. The Sixth Amendment of the United States Constitution provides that 'in all criminal prosecutions, *460 the accused shall enjoy the right . . . to have the assistance of counsel for his defence. ' [FN98] In the appellate context, the Sixth Amendment's guarantee of assistance of counsel seems to conflict at times with an appellate attorney's obligation as an officer of the court not to press frivolous grounds for the appeal. [FN99] That conflict has been resolved in favor of the obligation not to make frivolous arguments. As the United States Supreme Court recently indicated, 'An attorney, whether appointed or paid, is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.' [FN100]
In California, the current practice is controlled by People v. Wende, [FN101] which permits appointed counsel to file a brief that only 'sets forth a summary of the proceedings and facts with citations to the transcript, raises no specific issues, and calls upon the court to make a thorough review of the entire record to determine for itself whether there were any arguable issues. ' [FN102] In order to ensure adequate judicial review of criminal convictions, the California Supreme Court 'requires the court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous.' [FN103]
The Wende procedure introduced several anomalies into criminal appellate practice. First, it permits counsel to file a brief without raising issues for review, even though counsel has not concluded the appeal is frivolous or requested permission to withdraw. Yet if the appeal is not frivolous, the defendant's Sixth Amendment right to effective assistance of counsel is hardly protected by a brief that raises no issues.
Second, as the court recognized in Wende itself, by filing a Wende brief, 'counsel may ultimately be able to secure a more complete review for his client when he cannot find any arguable issues than when he raises specific issues, for a review of the entire record is not necessarily *461 required in the latter situation.' [FN104] Although the court in Wende was 'confident . . . that this state of affairs will not cause attorneys to abandon their professional responsibility to conscientiously review the record and argue all issues that are arguable,' [FN105] the Wende procedure plainly presents appellate counsel with a difficult tactical choice: whether to sacrifice the full Wende review by the court in order to present a substantive issue that has only a very small likelihood of success.
Third, the Wende procedure in effect casts the appellate tribunal in the uncomfortable role of appellate counsel. When a Wende brief is received by the court, the case is typically assigned to a staff attorney who drafts a memorandum reciting the facts and legally analyzing all possible issues in the case. That staff attorney then makes an oral presentation to the appellate panel explaining the case and the reasons why the case presents no meritorious issues for review (except, of course, in the exceedingly rare case when an arguable issue is found). One or more judges of the panel then read the entire record looking for any arguable issue that could be raised on behalf of the appellant. As described, the Wende process duplicates in all relevant aspects the exact process that appellate counsel must follow in evaluating the merits of the case.
Fourth, Wende appears to waste state resources. Appointed counsel are paid to review the record and decide that the appeal lacks merit, but under Wende, counsel are not required to disclose the reasons for that conclusion and are not required to assist the court in evaluating the legal merits of the case. As a result, the appellate tribunal must then assign its own staff attorney to duplicate the efforts of appointed counsel.
The exact burdens created by Wende are difficult to quantify. It is significant, however, that Wende has been extended in California far beyond criminal appeals from superior court. It has been extended to misdemeanor appeals, [FN106] delinquency proceedings under California Welfare and Institutions Code Section 602, [FN107] termination of parental rights proceedings under California Civil Code Section 232, [FN108] dependency *462 proceedings under Welfare and Institutions Code Section 300, [FN109] conservatorship proceedings, [FN110] and paternity proceedings. [FN111]
The burden placed upon the appellate courts as a result of Wende is increasing and clearly disproportionate to the likelihood or level of any possible error. Justice Anderson correctly notes, ' Wende review is thus just one more obstacle in the peculiar California judicial landscape' that introduces unnecessary delay into the appellate process. [FN112]
Wende must be reconsidered in light of subsequent federal decisions interpreting the Sixth Amendment. The Supreme Court's decision in McCoy v. Court of Appeals [FN113] strongly suggests that the Wende procedure is not compelled by Anders v. California. [FN114] Even more significantly, in United States v. Griffy, [FN115] the Ninth Circuit Court of Appeals squarely held that a Wende brief unconstitutionally denies the appellant effective assistance of counsel under Anders, that a proper Anders brief must contain legal analysis with citations to authorities establishing that the appeal is meritless, and that an Anders brief must be accompanied by a motion to withdraw as counsel. An extended analysis of these cases is beyond the scope of this Article, but both cases raise serious doubts regarding the constitutionality of the Wende procedure.
Even assuming that the procedure in Griffy were to become the law in California, the effect upon the court of appeal or upon the state's finances remains unclear. Griffy still requires the court of appeal to review the record itself to determine whether to grant counsel's motion to withdraw. The court of appeal would undoubtedly discharge that obligation in much the same way that it now discharges its independent review obligation under Wende. In effect, there may be no net savings in the time it takes the court of appeal to review. And, since a Griffy brief is much more substantial than a Wende brief, it would probably cost the state more to compensate appointed counsel to take a Griffy appeal than a Wende appeal. On the other hand, discussions with federal public defenders suggest that the burden of drafting a Griffy brief, as well as the ethical dilemma posed by filing a brief that explains why the appeal is meritless, may deter appointed *463 counsel from filing such a brief. Additionally, appointed counsel would be more likely, faced with the problems associated with preparing a Griffy brief, to find at least one arguably appealable issue, which might result in a substantial reduction in the number of Wende- Griffy appeals.
C. Determining Whether the Appeal Qualifies for Special Treatment
When briefing is complete, an appeal is ready for initial screening and processing by the appellate court. This initial screening, usually performed by a staff attorney under supervision of the presiding judge, but sometimes performed by a judge, gives the appellate court an opportunity to determine the most appropriate form of appellate treatment for the case. Appellate courts around the country, including those in California, have been experimenting for several years with alternative appellate dispute resolution, the most common form of which is the pre-argument settlement conference. [FN116]
The overall merits of the pre-argument settlement conference are still being debated, although initial results are certainly promising. [FN117] A recent survey covering forty-five appellate courts in twenty-five states indicates seventeen courts have adopted the practice, twenty-two appellate courts have never tried it, and six courts rejected the pre-argument settlement conference after experimenting with it. [FN118]
In California, the Third District Court of Appeal has had a settlement conference program in place for almost twenty years. During the last four years, the court held conferences in about one-third of its civil appeals. Slightly more than forty percent of those conferences resulted in a settlement (for a total 295 settled appeals). Other districts have similar programs in effect.
Appellate courts should continue to experiment with decision-making models that use less appellate resources than the traditional model. The pre-argument settlement conference is already accepted as one way to quickly resolve appeals.
*464 D. Arguing Before a Panel of Judges
Appellate review in the United States has traditionally included the right to have counsel appear in person before the appellate tribunal to present oral arguments for the court's consideration. In the golden age of oral advocacy, the courts would sometimes listen for hours or even days to the arguments of counsel. However, that golden age has passed; courts around the country are reducing the time allotted for oral argument. Rising caseloads and the decreasing usefulness of oral argument (compared to written briefs) are the asserted reasons. [FN119]
At its best, oral argument is an informed interchange between well-prepared counsel and a well-informed, actively engaged bench. Judges can use oral argument to test their theories of the case and the law and to press counsel to address points deftly avoided in the briefs. Justices also use oral argument to seek support from a colleague. Counsel use oral argument to emphasize the most critical points for the court's consideration. At its worst, oral argument is a stale rehash of exactly what appears in the briefs. This unfortunate consequence is usually the result of counsel who are unable or unwilling to engage in meaningful dialogue with judges who have already decided the case and do not believe oral argument is necessary in any event.
Sadly, it appears the average oral argument in the court of appeal is closer to the worst-case scenario. Part of the problem is lack of education; teaching oral advocacy skills is not a central part of any law school curriculum, and lawyers in practice get little direct feedback from the courts. But counsel are not entirely at fault. Because of heavy caseloads and the ninety-day rule, [FN120] appellate courts prepare opinions prior to oral argument, a process known as 'front-loading.' [FN121] As a result, in such cases judges are listening to oral arguments after having concluded their research, analysis, and drafting. Unless the court tips its hand in oral argument with very specific questions, counsel may be unaware of what issues, if any, remain open for discussion.
*465 In response to this problem, the court of appeal might routinely release tentative opinions prior to oral argument, at least in cases in which the final opinion probably will not be published. Such tentative opinions would focus attention upon the precise reasoning the court appears ready to adopt in the case. They may also make oral argument a more lively experience. Division Two of the Fourth District Court of Appeal has been releasing tentative opinions for several years. Both bench and bar have found the experiment to be successful. The Appellate Department of the Superior Court for the County of Los Angeles also issues tentative opinions prior to oral argument. All appellate courts in California should consider releasing tentative decisions in at least some cases.
There are, of course, some cases in which no amount of oral advocacy could possibly change the result. Appellate courts in California, however, cannot deny oral argument over the objections of the parties. Counsel have an absolute right to demand oral argument. [FN122] Counsel may waive argument, however, and the court of appeal now routinely requests waiver in many cases with a letter to counsel. [FN123] Because the waiver letters give no specific reason for the request, some counsel view the letters 'with caution.' [FN124]
One solution to this problem -- and a solution that might increase the number of cases in which counsel waives argument -- would be to include with the request for waiver a copy of the court's tentative opinion. Thus, the decision whether or not to have oral argument would be left entirely up to the losing party, who would then have a firm basis for deciding whether oral argument would be likely to change the court's mind. This proposal essentially converts oral argument from an integral part of the initial decision-making process into something more like an oral petition for rehearing. But for all practical purposes, that is what California appellate courts are doing today in most cases. So long as the appellate courts maintain objectivity, this proposal could reduce the time spent in useless oral arguments and improve the focus and quality of remaining oral arguments.
Oral arguments might be modified in one additional respect. All districts could follow the lead set by the First (San Francisco) and Fifth (Fresno) Districts in permitting counsel to argue by teleconference. [FN125] *466 Although teleconferencing deprives the justices and lawyers of one another's personal appearances, the experience in San Francisco and Fresno has been that many counsel give a better prepared and more tightly reasoned argument by telephone than they do in person. [FN126] For many lawyers, standing in front of a panel of three robed judges may be an intimidating experience, somewhat reminiscent of the pressures felt in law school. That sort of apprehension interferes with the presentation of the best possible arguments. A teleargument, by contrast, is much more familiar territory for most lawyers. Lawyers, after all, spend much of their time on the telephone talking to or arguing with people.
There are also significant economic reasons for adopting optional teleargument. As noted by Justice Anderson, the San Francisco and Fresno courts found 'the purchase and installation costs of the telephonic equipment were recovered in just two months through savings achieved by avoiding the necessity of physical appearance of appointed counsel for indigent criminal appellants.' [FN127] Practitioners will realize significant savings from teleargument as well. The reduction in traffic to and from appellate courts will have some minor, though perhaps highly visible, impact on parking and pollution levels. The Judicial Council should encourage teleargument in all six court of appeal districts. [FN128]
E. Reaching a Decision
The heart of the appellate system is the decision-making process. No matter how well or how smoothly everything else functions, if appellate courts reach incorrect results in too many cases, public confidence in the judicial system diminishes. The critical importance of the *467 decision-making process explains in large measure why scholars and judges have focused so much intellectual attention upon it. [FN129]
Appellate courts do not sit abstractly to review principles of law. [FN130] In one sense, the supreme court's primary function is to guide the development of the law in California. But it performs this function only in the context of deciding actual controversies between litigants. The court of appeal may have a primary responsibility of correcting trial court errors, but that function is subordinate to resolving how the particular case should be decided. Ultimately, then, appellate courts -- no less than trial courts -- have one overarching function: to decide cases. [FN131]
In California, appellate courts may set aside a trial court judgment only when 'the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [FN132] Under this provision, an appellate court must first determine whether the trial court committed an error and then determine whether that error was prejudicial. [FN133]
(1) Standards of Appellate Review
In evaluating allegations of error, appellate courts adopt a 'standard of appellate review' appropriate for the type of tribunal from which appeal is being taken, the type of proceeding held in that tribunal, the type of issue being raised on appeal, and the abilities of the appellate tribunal. In the great majority of appeals from trial court judgments, California appellate courts apply, as appropriate, one or all of the following standards of review: (a) independent (de novo) review; (b) substantial evidence review; and (c) abuse of discretion review.
*468 a. Independent (De Novo) Review
When an appellate court employs independent (de novo) review, it generally gives no special deference to the findings or conclusions of the court from which the appeal is taken. The appellate court uses its own independent judgment to resolve the issue or issues presented for consideration.
The independent review standard does not require the appellate court to discard or ignore the reasoned conclusions of the lower court. To the contrary, the good work of the lower court is often of great benefit to the appellate court, as is proven by the number of rulings affirmed, often on the basis of the same reasoning employed by the lower court. Independent review does not mean uninformed or entirely new review; appellate courts are not required to reinvent the wheel already constructed partially or fully by the lower court.
Independent review does mean, however, the appellate court is not constrained to give the lower court's conclusions any particular weight. If the appellate court believes the lower court erred, it need find nothing more, subject to the independent requirement that the error be prejudicial. The appellate court need not find, for example, that the error is 'clear' or 'manifest.' It is enough that the appellate court disagrees with the lower tribunal's conclusion, and the appellate court is thus free to substitute its judgment for that of the lower tribunal.
Independent review is most commonly used to review the lower tribunal's resolution of legal issues. [FN134] It is in the consideration of purely legal questions that an appellate court usually has a significant advantage over the tribunal from which the appeal has been taken. This advantage justifies giving little or no weight to the lower court's conclusions. Quoting extensively from the Ninth Circuit's decision in United States v. McConney, [FN135] the California Supreme Court in People v. Louis [FN136] explained as follows:
Structurally, appellate courts have several advantages over trial courts in deciding questions of law. First, appellate judges are freer to concentrate on legal questions because they are not encumbered, as are trial judges, by the vital, but time-consuming, process of hearing evidence. Second, the judgment of at least three members of an appellate panel is brought to bear on every case. It stands to reason *469 that the collaborative, deliberative process of appellate courts reduces the risk of judicial error on questions of law. . . .
Independent review of questions of law, however, is dictated by still another concern. Under the doctrine of stare decisis, appellate rulings of law become controlling precedent and, consequently, affect the rights of future litigants. Rulings on factual issues, on the other hand, are generally of concern only to the immediate litigants. From the standpoint of sound judicial administration, therefore, it makes sense to concentrate appellate resources on ensuring the correctness of determinations of law. [FN137]
The most obvious examples of purely legal questions involve the interpretation of constitutional or statutory provisions or other sources of positive law. [FN138] Questions of law often involve the interpretation of other types of legally significant writings. For example, a demurrer challenges the legal sufficiency of the written pleadings. A motion for summary judgment raises the legal issue of whether, on the pleadings and other written submissions, a fact question is presented for the jury. [FN139] And the interpretation of an unambiguous, written contract is usually considered to present a purely legal question. [FN140]
Legal questions can also be presented by nondocumentary evidence, of course, although it is much more likely that nondocumentary evidence will raise fact questions. Cases involving the interpretation of writings more often present legal questions because there is usually no dispute about the words that have been written. Thus, the underlying facts are not in dispute, and the dispute relates only to the legal interpretation or consequences of those facts. By contrast, when nondocumentary evidence is involved, such as testimony about what one party remembers seeing or hearing, a dispute about the underlying facts is much more common, and a fact question is thus much more likely to be presented.
When the parties agree in the trial court on the underlying facts, it might seem to present a purely legal question. However, courts have refused routinely to characterize the legal interpretation of undisputed, nondocumentary facts as presenting pure questions of law. Instead, courts often describe such issues as involving the application *470 of the law to the facts or as raising mixed questions of fact and law. [FN141] Appellate courts review such issues under either the independent review or the substantial evidence standard, depending upon whether the issue involves predominately legal or factual questions. The Ninth Circuit in McConney explained:
The appropriate standard of review for a trial judge's application of law to fact may be determined, in our view, by reference to the sound principles which underlie the settled rules of appellate review regarding facts and law separately. If the concerns of judicial administration -- efficiency, accuracy, and precedential weight -- make it more appropriate for a judge to determine whether the established facts fall within the relevant legal definition, we should subject his determination to deferential, clearly erroneous review. If, on the other hand, the concerns of judicial administration favor the appellate court, we should subject the trial judge's finding to de novo review. Thus, in each case, the pivotal question is do the concerns of judicial administration favor the trial court or do they favor the appellate court.
In our view, the key to the resolution of this question is the nature of the inquiry that is required to decide 'whether the rule of law as applied to the established facts is or is not violated.' If application of the rule of law to the facts requires an inquiry that is "essentially factual," -- one that is founded 'on the application of the fact-finding tribunal's experience with the mainsprings of human conduct,' -- the concerns of judicial administration will favor the trial court, and the trial court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo. [FN142]
For example, consistent with this analysis, courts hold that the existence of a duty of care is generally a legal question for the court, [FN143] while the issue of whether the duty has been breached is generally a factual question for the fact finder. [FN144]
The independent review standard as applied in California appears to advance each of the goals identified above for appellate review. Independent review certainly furthers the error correction goal, and it equally furthers the important goal of using appellate courts to determine *471 the law as it should be applied in subsequent cases. Independent review also insures some level of consistency in the interpretation of legal questions. Finally, independent review strongly furthers the goal of securing public confidence in the judicial system. Ultimate responsibility under the independent review standard appropriately lies with the highest judicial tribunal in the state. There is no justification for having the California Supreme Court defer to a lower court's interpretation of a purely legal question.
In sum, there is no reason to alter the California appellate court's approach to the independent review standard.
b. Substantial Evidence Review
Under the substantial evidence standard, an appellate court will not reverse the findings of the lower tribunal -- findings either by the judge or the jury [FN145] -- so long as there is substantial evidence in the record to support the finding. The substantial evidence standard is not satisfied by the existence of 'any' evidence in support of the finding, but the evidence must be of 'ponderable legal significance, reasonable in nature, credible, and of solid value.' [FN146] Even if there is substantial evidence to support a reversal, the appellate court must affirm as long as there is substantial evidence to support the lower court's finding. [FN147] The substantial evidence standard is used primarily in the review of factual determinations and those mixed questions of law and fact in which factual elements predominate.
Quoting again from the Ninth Circuit decision in McConney, the California Supreme Court explained the rationale for a deferential review of factual findings:
The mandate that appellate courts disturb not a trial court's findings of fact unless clearly erroneous serves two policy objectives. First, it minimizes the risk of judicial error by assigning primary responsibility for resolving factual disputes to the court in the "superior position" to evaluate and weigh the evidence -- the trial court. . . . Second, because under the clearly erroneous test, the reviewing court will affirm the trial court's determinations unless it 'is left with the definite and firm conviction that a mistake has been committed,' citation, it is relieved of the burden of a full- scale independent review and evaluation of the evidence. Consequently, *472 valuable appellate resources are conserved for those issues that appellate courts in turn are best situated to decide. [FN148]
Because the 'substantial evidence' standard is so deferential to the lower tribunal's findings, it is to be expected that there will be few cases in which a court of appeal will reverse on the ground of no substantial evidence to support the trial court's findings.
A quick search of published opinions confirms this common-sense intuition. In 1992, there were only a few published opinions in which the appellate courts have held that the trial court's findings were not supported by substantial evidence. [FN149] Searching only published opinions understates the number of 'no substantial evidence' reversals because those decisions usually are very fact-based and are thus less likely to satisfy California's standards for publication. [FN150] Nevertheless, discussions with appellate justices confirm that 'no substantial evidence' reversals are uncommon in both published and unpublished cases.
Given the small number of cases in which substantial evidence review produces a reversal, it is appropriate to consider whether the costs of factual review by appellate courts are worth the benefit, especially when the appellate court's expertise lies in reviewing legal rather than factual questions. The costs of substantial evidence review involve lawyer time in preparing complete transcripts, reviewing transcripts, and making detailed factual arguments. The court must also spend time reviewing briefs and transcripts and drafting detailed opinions setting forth the substantial evidence that supported (or the lack of evidence that did not support) the lower court's judgment. In addition, because the court of appeal is far removed from the trial process and must work from a cold record, there is an additional cost involved *473 in the risk that the court of appeal will incorrectly substitute its judgment on the facts for the judgment of the trial court, thereby reaching a wrong decision.
The benefits of substantial evidence review are negligible. In the very few cases reversed for lack of substantial evidence, the appellate goal of error correction would certainly be advanced. But reversals for lack of substantial evidence advance that goal only incrementally. Because of the substantial evidence rule, reversals occur only in the most obvious and egregious cases of error.
It may be that the mere possibility of reversal on factual grounds operates as a check upon trial courts. If a trial court knew there were no review whatsoever of factual determinations, a trial court seeking to insulate its judgment from appellate review might consciously attempt to frame more issues as involving factual determinations. It is speculative, however, whether any trial court would actually attempt such a subterfuge. It is equally speculative whether any such attempt ultimately could be successful. After all, the characterization of an issue as involving a question of law or fact is itself a legal determination; thus it is unlikely a trial court could successfully convert legal questions into factual questions.
In the last analysis, substantial evidence review may be justifiable primarily to achieve the appellate goal of promoting public trust in the judicial system. An appellate system that denied any review of factual determinations -- no matter how erroneous those determinations were -- would be subject to severe public criticism. That criticism probably would be heard most in the context of appeals from criminal convictions because they involve situations in which a person's liberty or life is at stake. Reviews of this Article by judges, civil practitioners, criminal practitioners, and scholars were almost unanimous in defense of the 'substantial evidence' standard and in rejection of any proposal to reduce appellate review of factual questions.
Notwithstanding these objections, some further study seems warranted to evaluate the merits of denying the appellate courts the power to review for factual error or replacing the 'substantial evidence' standard with a 'no evidence' standard of review. [FN151] A comparative study of jurisdictions adopting these approaches could reveal *474 some of the benefits and risks associated with different levels of appellate factual review. The Judicial Council should prevail upon California's law schools to undertake such a study.
In the future, we may expect greater pressure on appellate courts in the opposite direction, toward independent appellate review of factual questions. This pressure will begin building as soon as the cold, dry reporter's transcript is replaced by a 'hot' video transcript of all trial court proceedings. When the appellate court is presented with a full video record of the trial, appellants will argue the appellate court is in just as good a position as the trial court to assess credibility of witnesses and to weigh the evidence. Scholars are already making the case for greater appellate court intervention in such circumstances. [FN152] Yet it is questionable whether appellate resources are well-spent in retrying cases. There is little reason to believe an appellate court would actually do a better job of judging such issues than a trial judge. Moreover, the availability of independent review of factual issues would undoubtedly encourage many more trial court losers to file appeals focused upon very narrow, case-specific factual questions. Any tendency to expand appellate court review of factual determinations should be resisted.
c. Abuse of Discretion Review
An appellate court will reverse a lower court's exercise of discretion only upon a showing of 'clear abuse of discretion.' A trial court abuses its discretion if it acts contrary to law or if there is no substantial evidence to support the factual determinations on which the discretion was exercised. [FN153] In this way, the abuse of discretion standard incorporates both the independent review and substantial evidence standards. So long as the trial court has substantial evidence to support its factual determinations, and it has not committed an error of law, the appellate court will not substitute its judgment for that of the lower tribunal. A clear abuse exists only if the tribunal 'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [FN154] The tribunal must *475 have exceeded the bounds of reason, taking into account all of the circumstances before it. [FN155]
There is an enormous number of discretionary judicial decisions made during trial. A partial list includes changes of venue, dismissal or stay for forum non conveniens, provisional remedies such as preliminary injunctions, dismissal for lack of prosecution, orders granting motions for continuance, many evidentiary rulings, and new trial orders. [FN156]
The highly deferential abuse of discretion standard appears to further all of the goals of appellate review. When a judge has made a legal error in the course of exercising discretion, that legal error is corrected under the independent review standard, which furthers the error correction goal and promotes uniformity in the law. Apart from legal errors in the exercise of discretion, however, little useful purpose would be served by carefully scrutinizing the sort of decisions subject to the abuse of discretion standard. As the above list indicates, a trial judge's discretion is concentrated in procedural and administrative matters. While these matters are potentially of great practical importance to the parties, they raise few public policy concerns and just as few concerns about the correctness of the ultimate judgment in the case. For example, granting a motion for continuance has virtually no public policy implications and, in theory, should not affect the result in a case.
Some discretionary rulings, such as rulings to exclude or admit evidence, are much more likely to affect the outcome of the case, which may raise a concern that the abuse of discretion standard interferes with the appellate court's error-correcting function. On the other hand, appellate justices are usually in a poor position to determine whether, for example, the introduction of a particular piece of evidence might be unduly prejudicial in the context of an ongoing trial, or whether the introduction of proffered testimony is cumulative. Appellate justices' feel for the context of the trial is necessarily more remote and indirect than that of the trial judge. In these circumstances, appellate justices may be even more prone to error than a trial judge. A deferential standard of review is thus appropriate at the appellate level.
*476 d. Harmless Error
Identifying an error committed by the lower tribunal does not trigger a reversal in all cases. The California Constitution generally prohibits reversal of either a civil or criminal judgment for error unless 'the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [FN157] Similar provisions may be found in the Evidence Code, [FN158] Penal Code, [FN159] and Code of Civil Procedure. [FN160] The Supreme Court of the United States has likewise developed a complex 'harmless error' doctrine applicable in review of constitutional errors. [FN161]
Historically, harmless error provisions were a reaction to the overly technical courts of the nineteenth century, which routinely reversed high numbers of cases when they found any error in the proceedings, no matter how trivial. Justice Traynor cites as an example of this regrettable tendency the decision in People v. St. Clair, [FN162] in which the court found reversible error in an indictment charging the defendant with breaking and entering with intent to commit 'larcey' (rather than 'larceny'). [FN163] Although no one would seriously advocate a return to that type of hypertechnicality, the burdens that the harmless error doctrine imposes upon appellate courts are serious enough to prompt consideration of whether there are better ways of handling at least some categories of harmless error.
The harmless error doctrine creates several types of burdens upon appellate courts. First, it takes significant time for the appellate court to engage in a harmless error analysis. In order to do it well, the court must immerse itself in the complete record. There is no apparent *477 alternative way for a court to determine whether, absent the erroneous exclusion or introduction of a particular piece of evidence, it is reasonably probable that a result more favorable to appellant would have occurred. [FN164]
Second, in considering whether an error is harmless, the appellate court is required to do more than merely search for 'substantial evidence' in support of the judgment. The court is supposed to come to a judgment about the probabilities that the error affected the outcome. Yet that is precisely the sort of speculative inquiry into the factual basis of a judgment that appellate tribunals are relatively ill-equipped to perform.
Third, the harmless error doctrine would seem to undermine the appellate court's error correction function and to encourage essentially useless appeals. [FN165] Characterizing an error as harmless sends a very mixed signal to the bench and bar. On the one hand, the court has found an error, but on the other hand, it appears to be an error that the lower tribunal is permitted to make. In that sense, it is not an error at all. [FN166] And, if it is not really an error (or, more properly, not an error to which serious consequences attach), then there is no reason for the lower tribunal to avoid that error in the future. In this way, the harmless error doctrine may actually perpetuate avoidable, repetitive errors by lower courts, errors that form the basis for more appeals in the future. This consequence, in turn, undermines the appellate court's goal of achieving uniformity in the application of the law by lower courts and, more importantly, may significantly undermine the public's confidence in the judicial system. [FN167]
The somewhat schizophrenic approach to appellate review created by the harmless error doctrine is nicely illustrated in the recent *478 California Supreme Court opinion, People v. Howard. [FN168] Before accepting a guilty plea, the trial court failed to secure from the defendant an explicit waiver of the constitutional right against self-incrimination, the right to trial by jury, and the right to confront one's accusers. In Howard, a capital case, the defendant admitted to the court prior to trial a special circumstances allegation that he had served a prison term for burglary within the preceding five years. [FN169] The trial court used the admission to enhance the defendant's noncapital sentence. [FN170] On appeal the defendant asserted the trial court erred in accepting his admission without advising him on the record of his privilege against self-incrimination. [FN171]
The court agreed that 'the trial court clearly erred,' but, after a review of federal cases, concluded the error was not reversible per se and was subject to a harmless error analysis. [FN172] Applying that analysis, the court concluded the trial court's error was harmless because the record demonstrated that the admission was 'voluntary and intelligent' despite the absence of an explicit admonition on the privilege against self-incrimination. [FN173] Yet the court was plainly concerned that lower courts might misinterpret its affirmance. Notwithstanding the affirmance, the court issued the following caution:
This does not mean that explicit admonitions and waivers are no longer an important part of the process of accepting a plea of guilty or an admission of a prior conviction. Despite the rejection of In re Tahl as a matter of federal law, explicit admonitions and waivers still serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge leaves a record adequate for review. . . . Moreover, the essential wisdom of explicit waivers remains beyond question. . . .
For these reasons we emphasize that explicit admonitions and waivers are still required in this state. [FN174]
Yet the court affirmed the judgment, and while explicit admonitions and waivers are 'required,' the failure to give them may have no consequences.
Is there anything more that appellate courts can do to reduce the number of errors ultimately categorized as harmless without returning to the hypertechnical jurisprudence of the nineteenth century? To begin, *479 more needs to be known about the causes and categories of harmless error; very little is known about harmless error, apart from generalizations that it is often invoked in cases involving the erroneous admission or exclusion of evidence and in cases involving jury instructions. [FN175] Precisely what types of evidentiary mistakes are courts making? Are the errors concentrated in any one area of the law of evidence, such as hearsay? What types of instructional errors are occurring? Are these errors that could be avoided by promulgating clearer pattern jury instructions?
A one- or multi-year study of harmless error might give the appellate courts a much better understanding of the exact contours of the problem and how it best can be addressed. The Judicial Council should prevail upon California's law schools to conduct such a study.
Assuming this research discloses avoidable, repetitive harmless errors, several possible approaches to prevent such errors stand out. First, judicial education efforts through the California Center for Judicial Education and Research should be focused upon these types of errors. Second, to the extent these errors may be avoided by the administrative adoption of rules of procedure, forms of practice, scripts, or pattern jury instructions, such administrative action should be taken. Third, appellate courts should consider classifying certain types of avoidable errors as harmless today, but harmful tomorrow, which is very close to what the court was doing in People v. Howard. Such classification would, in essence, put lower courts on notice that certain types of avoidable errors will no longer be considered harmless, something akin to a one-bite rule. [FN176] These 'error reduction' activities could substantially reduce the number of cases in which appellate courts are forced to use the harmless error doctrine.
e. Review of Administrative Decisions
Because of the explosive growth of the administrative state, a substantial quantity of legislative and judicial activity is now undertaken by people who are neither legislators nor judges. Although it has become customary to refer to such administrative action as either quasi-legislative or quasi-judicial, administrative decisions are not *480 quasi-decisions; they are very real decisions that may have statewide impacts.
Judicial review of administrative action depends upon what type of action is being reviewed -- whether rule-making or adjudicatory -- and upon what type of agency is acting -- specially authorized state agencies, other state agencies, or local agencies. Quasi-legislative determinations must conform to procedures required by law, but otherwise are reviewed to determine if the agency action was arbitrary, capricious, or entirely lacking in evidentiary support. [FN177] This deferential standard 'is grounded upon the doctrine of separation of powers which (1) sanctions legislative delegation of authority to an appropriate administrative agency and (2) acknowledges the presumed expertise of the agency.' [FN178] Quasi-judicial determinations are reviewed under an 'abuse of discretion' standard. [FN179]
In the course of quasi-legislative and quasi-judicial determinations, agencies often interpret the statutes that have created and authorized the agency to act. Because an agency is presumed to possess expertise, courts use a 'clearly erroneous' standard to review a state agency's contemporaneous interpretation of its authorizing statutes. Under this standard, a court will attach 'great weight' to the agency's contemporaneous administrative interpretation and will reverse that interpretation only if the court determines the interpretation is 'clearly erroneous.' [FN180]
California courts have not precisely defined what the 'clearly erroneous' standard means. It is more deferential than the independent review standard, and it appears to be less deferential than the substantial evidence standard, although this relationship is much less certain. [FN181] The United States Supreme Court has defined 'clearly erroneous' to mean that if after looking at all the evidence the reviewing *481 court 'is left with the definite and firm conviction that a mistake has been committed,' it may reverse. [FN182] Federal courts use the 'clearly erroneous' standard to review factual determinations made by the trial judge acting without a jury under Federal Rule of Civil Procedure 52(a). [FN183] Although the issue has room for argument, the better position places the 'clearly erroneous' standard somewhere between de novo review and the deferential review given to jury findings.
In a case arising under the Fourth Amendment, [FN184] the California Supreme Court asserted the 'substantial evidence' standard 'for present purposes, is equivalent to federal 'clearly erroneous' scrutiny.' [FN185] Although in California 'for Fourth Amendment purposes' this equivalence is now the law and it has simplified review in criminal cases, hopefully courts will not take this assertion of equivalence out of context and begin reviewing all factual determinations under the 'clearly erroneous' standard. Even if there is substantial evidence to support a determination, an appellate court can nevertheless find that determination to be 'clearly erroneous' as long as the appellate court firmly believes a mistake has been made. Using the clearly erroneous standard in place of the substantial evidence standard would increase appellate scrutiny on questions of fact. This shift would be contrary to more than a century of California law and contrary to the fundamental principles that underlie limited appellate review of fact questions. [FN186]
Although deferring to an administrative agency's interpretation of the law may appear to be contrary to the rule that legal issues are reviewed independently by appellate courts, the clearly erroneous rule actually furthers the underlying goals of appellate review. The statutes governing the jurisdiction, powers, and operation of an administrative agency are often complex and the result of many years of legislative activity. It is very likely the agency would have a better appreciation of that history than an appellate court. Moreover, the *482 constitutional or statutory creation of an administrative agency and the conferral upon it of substantial quasi- legislative and quasi-adjudicative powers suggests a need for courts to proceed somewhat cautiously in rejecting an agency's interpretation of its own authorizing statutes. The clearly erroneous standard properly reflects that caution.
f. Review of Arbitration Judgments
The future of California's courts will very likely include a vastly increased reliance upon various forms of alternative dispute resolution. This increased reliance will have substantial implications for California's appellate courts.
The statutory grounds for vacating an arbitration award in cases of private, or nonjudicial, arbitration are extremely narrow, including only the following:
(a) The award was procured by corruption, fraud, or other undue means;
(b) There was corruption in any of the arbitrators;
(c) The rights of such party were substantially prejudiced by misconduct of a neutral arbitrator;
(d) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or
(e) The rights of such party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. [FN187]
The grounds for correcting, rather than vacating, an arbitration award are slightly broader, but still quite narrow:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy. [FN188]
There does not appear to be great dissatisfaction with the narrow grounds for appellate review of private arbitration awards, probably because the parties themselves have agreed to the procedure largely to avoid the expense and delay associated with litigation. There has *483 been some controversy about the extent to which an arbitration panel's legal error could form the basis for challenging an arbitration award, but the California Supreme Court's exhaustive opinion in Moncharsh v. Heily & Blase largely puts to rest any argument that legal errors could form the basis for setting aside an arbitration award. [FN189] As the court properly explained, 'The arbitrator's resolution of both issues of law and fact is what the parties bargained for in the arbitration agreement.' [FN190] Moncharsh insures that cases diverted from the trial courts to arbitration as a result of private arbitration agreements will not come back to haunt the judicial system (including the appellate courts) in the form of petitions and appellate reviews of petitions to vacate awards.
Mandatory judicial arbitration, [FN191] in contrast with private arbitration, presently gives the parties the option of securing an independent trial in the trial court following the arbitration award. [FN192] A party seeking an independent trial takes a substantial risk, however, because the statute imposes costs and fees upon a party who fails to secure from the trial court a judgment that is 'more favorable in either the amount of damages awarded or the type of relief granted.' [FN193] In a 1984 study of mandatory judicial arbitration, the Judicial Council's Mandatory Arbitration Rules Advisory Committee came to the following positive conclusion:
The committee finds that judicial arbitration is a valuable dispute resolution mechanism which has favorably affected the cost, complexity, and time associated with litigating smaller civil cases. The users of the program -- litigants and their attorneys -- confirm that dispositions resulting from judicial arbitration generally tend to be more prompt, inexpensive, and predictable, and are frequently more satisfactory to all parties.
The program has emerged as an essential calendar management tool for the courts, permitting the disposition of civil active cases, including those not ordered to arbitration, to occur on the whole more quickly and economically, while providing litigants in smaller civil cases with a desirable alternative to conventional litigation. [FN194]
*484 There appears to be no reason to doubt the continuing accuracy of this study or the wisdom of its recommendation that judicial arbitration be indefinitely extended. Channelling appropriate disputes through arbitration or other methods of alternative dispute resolution promises to reduce the workload in both California's trial level and appellate courts. It also appears to improve the litigants' and attorneys' perceptions of the justice system.
(2) The Postargument Conference and Collegial Drafting of Opinions
One of the hallmarks of the appellate process is its collegial nature. Having three to seven independent judges working to resolve the same problem helps to insure that the ultimate conclusion is just. Dispensing with conferences in selected cases does not seem to be a great time-saver, although some courts have done so. As Professors Carrington, Meador, and Rosenberg have noted, it may significantly undermine many of the benefits of the multijudge appellate bench: 'The conference is an important assurance of collegiality and also reinforces the individual judge's sense of personal responsibility. Moreover, the conference can in some cases contribute to the quality of the result. The group is sometimes greater than its parts; conferring may yield synergistic results.' [FN195]
The same can be said about the collegial process of drafting opinions. Although individual justices may be identified as the author of most opinions, each justice who signs that opinion must assume individual responsibility for its contents.
There appears to be little support for altering the essentially collegial nature of the conference or opinion writing. Technological developments are perceived to be a potential threat to collegiality. In particular, as the nation moves toward a paperless judicial system and the information superhighway makes telepresence routine and real, appellate judges will not need to meet face-to-face regularly. The currently existing six districts might be collapsed into one intermediate appellate tribunal in which three-judge panels are selected from the entire roster of intermediate appellate judges. Public, in-person oral argument before judges and private, postargument judicial conferences will be replaced by video teleconferencing -- in both instances, without meaningful diminution of personal access by justices to one another and staff, or of collegiality. Since all appellate judges will be *485 connected to one large telecommunications network, discussions will be conducted and opinions will be shared and drafted entirely on-line.
Some argue that there will be a continued need for direct personal contact on a daily basis between appellate judges and staff, particularly chambers' staff. In this view, the informal, daily interaction between appellate judges and staff is a critical component of appellate decision making. Ubiquitous, high-definition, miniaturized telecommunication will resolve the apprehension of such arguments because of the ease of highly personal telepresent interactions and because of major cost and time savings.
There are, of course, existing appellate courts that are geographically dispersed. Judges on the Ninth Circuit Court of Appeals, for example, have chambers in Los Angeles, San Francisco, Pasadena, San Diego, Santa Ana, Phoenix, Reno, Seattle, Woodland Hills, Portland, Boise, Fairbanks, and Honolulu. Oral arguments are generally conducted in person, as is the postargument conference, but the collegial process of drafting opinions may be done by judges in three distant locations.
Although technology will permit appellate judges to be geographically dispersed, a careful and refined transition will insure use of telepresence is achieved over time without abandoning the face-to-face collegiality that distinguishes and enhances our state appellate process.
F. Publicly Releasing a Reasoned Opinion
Technology is also changing the way in which appellate courts communicate their judgments and opinions to the public. Appellate courts have traditionally communicated their opinions on paper: A copy of the court's written opinion is sent to the parties, is made available over the counter at the clerk's office, and is sent to a publisher for publication in permanent volumes.
Electronic bulletin boards are fast changing this picture. California's Judicial Council made its electronic bulletin board available to registered users in August 1990. [FN196] The Council's bulletin board includes published opinions from the courts of appeal and the California Supreme Court, as well as news releases, proposed rules of court, calendars, *486 tentative rulings, and other special notices. These developments begin the process of converting to a paperless appellate court.
III. The Public Output of the Appellate Courts
The deliberations of appellate tribunals traditionally have been hidden from public view. Direct contact with the public is limited to oral argument, public announcement of a decision, and release of an opinion in support of that decision. Preparation for oral argument, the conference after oral argument, and the drafting of opinions are private and confidential (except when clerks or judges disclose such processes to the public, a practice that is frowned upon by most appellate judges).
A. Public and Media Access to Appellate Arguments
Appellate arguments are open to the public. Some cases are of interest only to the litigants, while others raise important questions of interest not only to lawyers, but to the entire community. It is altogether appropriate that appellate courts begin planning for the day when all appellate proceedings are available to the public through television.
The benefits of televising appellate arguments are manifold. The public benefits by having access to an important governmental activity. There are significant educational opportunities for students at all levels. The news media will provide better access to the public and enhance its own commentary and editorial resources. Attorneys not directly involved, but who have an interest in monitoring specific cases, will no longer need to travel to the appellate courthouse.
In the 1970s, there was a fear that televising judicial proceedings might interfere with the nature of those proceedings, [FN197] and some appellate justices still express that fear. Yet experience with the media in the trial courtroom, controlled by the judge, [FN198] indicates litigants and attorneys tend to behave as though the cameras are not present. The California Supreme Court has been willing to experiment with televising its own oral arguments. The first delayed broadcast of a supreme court oral argument occurred in 1981 in People v. Shirley. [FN199] The first live broadcast occurred in the 1991 oral arguments in Legislature *487 of the State of California v. Eu. [FN200] The court of appeal should begin experimenting with televising oral arguments in selected cases, perhaps coordinating the broadcast with local law schools.
Many oral arguments in the court of appeal would be of interest only to the litigants and the court, and the audience for such arguments presumably would be relatively small. However, there will be exceptions; some key cases of real significance are dealt with conclusively in the intermediate appellate courts. [FN201] Supreme court arguments, by contrast, are much more likely to command wide public attention. The supreme court should study the possibility of broadcasting all its oral arguments.
B. Publication or Depublication of Opinions
Without doubt, the reasoned opinions drafted in support of appellate decisions represent the most significant access the public has to the work of appellate tribunals. Public release of a written opinion supporting an appellate decision advances all of the core appellate goals. First, the process of researching and analyzing a case, followed by writing an opinion joined by two of three (or four of seven) justices helps to insure the appellate court's initial decision withstands the disciplined rigor of a written memorialization. One thoughtful appellate judge has described the process as follows:
A remarkably effective device for detecting fissures in accuracy and logic is the reduction to writing of the results of one's thought processes. The custom of American courts of embodying decision in a written opinion setting forth facts, law, logic, and policy is not the least of their strengths. Somehow, a decision mulled over in one's head or talked about in conference looks different when dressed up in written words and sent out into the sunlight. Sometimes the passage of time or a new way of looking at the issue makes us realize that an opinion will simply not do, and back we go to the drawing board. Or we may be in the very middle of an opinion, struggling to reflect the reasoning all judges have agreed on, only to realize that it simply 'won't write.' The act of writing tells us what was wrong with the act of thinking. [FN202]
There is of course a distinction between requiring that all appellate decisions be supported by a written opinion and requiring that all written opinions be published. Arguably, the error correction goal could be adequately served by the writing requirement without imposing a publication requirement. At the same time, however, a court, *488 aware its written opinion will be published and could influence decisions in future cases, is more likely to spend more effort insuring the opinion fully and clearly supports the conclusion. Requiring all decisions to be supported by a written opinion and to be published would best advance the error correction goal.
Second, publication of a written opinion appears to be the only practical way of insuring a uniform declaration of the law. Absent publication of an appellate tribunal's decisions, the media, the public, the bar, and the bench may be left guessing at the rationale for a particular decision. Publication of written opinions thus appears to be helpful in securing uniformity in the law.
Third, publication of written opinions reinforces the public's respect for and understanding of the judiciary. It gives litigants and the public the ability to assess for themselves whether the decision reached by the appellate court is grounded in the facts of the case and the law applicable to those facts.
(1) The Nonpublication Problem
Although publication of written opinions clearly advances all of the core goals of an appellate system, the California Courts of Appeal now routinely dispense with publication of written opinions. [FN203] Although a written statement of reasons in support of an appellate decision is constitutionally required, [FN204] publication is not required. [FN205] In fiscal year 1991 to 1992, around ninety percent of the written opinions issued by the court of appeal were unpublished, [FN206] and thus available only sporadically to the public and not citable as precedent in subsequent cases. The figure is up from eighty-five percent just six years ago. [FN207] Unpublished opinions are of use and guidance only to the parties and the California Supreme Court as it decides whether to grant review.
The standards for publication are contained in the California Rules of Court as follows:
No opinion of a court of appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion:
(1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published *489 opinions, or modifies, or criticizes with reasons given, an existing rule;
(2) resolves or creates an apparent conflict in the law;
(3) involves a legal issue of continuing public interest; or
(4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law. [FN208]
To publish an opinion, a majority of the panel deciding the appeal must agree that the opinion meets one or more of these criteria. [FN209] The court of appeal's decision to publish or not to publish is reviewable by the supreme court upon proper application. [FN210]
The consequences of not publishing an opinion are significant. 'An opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subdivision (b). ' [FN211] Narrow exceptions are created for application of 'the doctrines of law of the case, res judicata, or collateral estoppel' and for use in 'a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another such action or proceeding.' [FN212]
The substantive standards contained in California Rule of Court 976 and the no-citation rule contained in California Rule of Court 977 are premised on the belief that the error correction goal of appellate review is primarily of interest only to the parties and not the public and that the error correction goal is not advanced by routine publication of opinions. The publication standards are more closely linked to the second goal of appellate review -- promoting a uniform declaration of the law. Starting from that premise, the substantive standards in California Rule of Court 976 trigger publication only if the opinion makes a change in the law, creates a conflict in the law, involves an important legal issue, or contributes to the development of the law. The no-citation rule is designed to insure that an unpublished opinion has no effect on the development of the law in subsequent cases.
There are good reasons to believe that the premises underlying the non- publication rule -- namely, that error correction is of interest only to the parties and publication does nothing to advance that interest -- *490 are wrong. First, as noted above, there is some reason to believe that a tribunal will be more careful in its approach to a case if it knows that its final work product, a written opinion, will be disseminated to the public. Second, Professors Carrington, Meador, and Rosenberg correctly observe that
non-publication inevitably reduces the visibility of the correcting function of the appeal. Over time, it must depreciate that basic function, leaving trial courts and administrative agencies more on their own, and increasing general anxiety about the integrity of the legal process at all levels. Visibility is too important to too many of our imperatives to be abandoned in favor of the limited benefits of non-publication. [FN213]
Third, even if the error-correcting function in a particular case is of primary interest only to the parties, the public surely has an interest in how well error correction is working in the great mass of cases. The nonpublication rule discourages interested members of the public from even attempting to study error correction. It creates a great risk that errors are simply being swept under the rug. Indeed, when the nonpublication rule is combined with the harmless error doctrine, it is possible for the court of appeal to sweep trial court errors under two layers of rugs: first, the error is declared harmless, and second, the error is not published. The public has an interest in how well error correction is working, and publication of opinions advances that goal.
Routine nonpublication of opinions also undermines the second goal of appellate review -- promoting a uniform declaration of the law. California Rule of Court 976 attempts to protect this goal by requiring publication of opinions that may have an influence on the law. In both theory and practice, however, Rule 976 fails. As a matter of jurisprudential theory, it is simply impossible for the court that writes an opinion to know with certainty whether that opinion or decision changes the law. The meaning of a judicial opinion is in the eye of the beholder, not in the mind of the author. Opinions have the meaning that is attributed to them by subsequent courts.
This is more than just a matter of mere theory. Scholars have documented instances when multipanel appellate courts appear to disagree internally in their application of law to recurring fact patterns. [FN214] Yet by virtue of the no-citation rule, counsel is unable even to bring the state of disarray to the appellate courts' attention.
*491 Routine nonpublication also creates an unlevel playing field that may undermine the public's confidence in the fairness of appellate processes. Although unpublished opinions are not widely available to the public, they are in fact publicly released by the court and are therefore available to anyone with the resources to collect them. In particular, as Professors Carrington, Meador, and Rosenberg have noted, 'Access is limited to lawyers who can conveniently get to the court's files and to the governmental and institutional law offices that are in position to maintain their own collections of clandestine opinions.' [FN215] Dean Uelmen reported in a 1990 article that 'some major law firms and public offices have a standing order for copies of all unpublished opinions.' [FN216]
Finally, routine nonpublication diminishes the importance of the court of appeal in our constitutional structure. Why is California dedicating such significant resources (three judges per case, associated staff, building space, and so on) to resolve appeals when nine out of every ten appellate decisions are of practical interest and utility only to the litigants? California either should make the court of appeal's work product publicly available to all for review, or should redirect significant numbers of cases away from that court (perhaps towards the appellate department of the superior court).
The pressure to publish only selected opinions (or selected portions of opinions) appears to have been largely economic. As the number of appeals increased, the sheer volume of published opinions began to overwhelm the shelf space capacity of our libraries and the research capacity of lawyers trying to differentiate the wheat from the chaff. [FN217] Technology ultimately may provide a solution to the shelf space problem. As California moves in the direction of a paperless court, we can visualize the day when all appellate opinions would be readily available to all members of the public through electronic publishing services operated by the state and private publishers.
As for the problem of separating important from unimportant opinions, courts could still publish two types of opinions, a full-blown opinion in appropriate cases and a memorandum opinion in all other cases (that would, in all significant respects, look like an unpublished *492 opinion). [FN218] The simple act of labeling an opinion as a 'memorandum opinion' would be a signal to the bar that the court does not view the opinion as having much precedential value.
Notwithstanding these arguments, the almost uniform reaction of appellate judges and practicing lawyers has been that the nonpublication and noncitation rules are critically important to the court of appeal in preparing and processing its cases and to the practicing bar in litigating appeals. Pride of authorship and concerns that a published opinion may be cited as precedent result in court of appeal judges spending proportionally more time editing and crafting published opinions than unpublished opinions. Thus, judges likely would spend more time on a published memorandum opinion than on an unpublished memorandum opinion even though the ultimate work product might be just as short as an unpublished opinion. With approximately 9,000 unpublished opinions per year, requiring court of appeal justices to spend even slightly more time per opinion would have a significant impact upon their ability to keep up with the court's caseload.
Moreover, both bench and bar agree the overwhelming majority of unpublished opinions are actually useless for future litigation because they involve no new law and no new, applicable factual situations. Yet if these opinions were published and citable, lawyers would have to search them to confirm that nothing useful was in them, thereby increasing the cost of legal research.
There is a compromise position between publication of all opinions and nonpublication of nearly all opinions that might satisfy proponents on both sides of this issue: Make all unpublished opinions available electronically (which would give the public, scholars and the court of appeal easy access) but retain the no-citation rule (which would address the practical concerns expressed by appellate lawyers and judges). As appellate courts become paperless, provision should be made for giving the public access to unpublished as well as published opinions.
(2) The Depublication Problem
The practice of not publishing certain court of appeal opinions sets the stage for an additional problem: the California Supreme *493 Court's related power to depublish court of appeal opinions. If the supreme court were to restrict its depublication orders to those instances in which a published court of appeal decision did not meet the criteria contained in California Rule of Court 976, few would be heard to complain. However, for many years the supreme court has used its depublication power as a way of shaping the development of California law. More particularly, depublication often occurs 'because a majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained as citableprecedent.' [FN219]
The depublication practice has long been criticized. Some critics, including some court of appeal judges, liken depublication to a form of censorship and complain that depublication results in the consignment of some of the best work of court of appeal judges to a sort of purgatory. [FN220] However, as Kent Richland has noted, an opinion that is depublished is not censored; the opinion remains published in the unofficial reporter and is available electronically. [FN221] The only effect a depublication order has is to deprive the lower court decision of any precedential effect. [FN222] Even more to the point, a court of appeal opinion is not the property of any single justice or the panel of three justices who heard the appeal. The opinion is the opinion of the court, and the California Supreme Court, as the highest court in the state, undoubtedly has the responsibility, as well as the power, to control the output of lower courts.
Some complain the process is essentially unfair to appellants because, having decided something in the court of appeal's opinion was wrong enough to justify depublication, the supreme court nevertheless denied review of the decision. This criticism simply misses the point of depublication; depublication does not mean the decision was wrong, but usually only that something in the opinion was wrong even though the decision was correct. [FN223] There is thus no unfairness or illogic in depublishing an opinion while leaving the decision intact.
*494 A more substantial objection to depublication is that such orders leave the bench and bar guessing about the law. Yet the California Supreme Court's primary responsibility is to rationally guide the development of the law by its decisions, not to decide all of the open questions of law at the earliest opportunity. As Justice Grodin noted, requiring the supreme court to draft a statement of reasons for depublication would substantially undermine the administrative convenience presently associated with the depublication process, and the precedential value of such a statement of reasons would be open to question. [FN224]
Not all of the criticisms are so easily answered, however. The best reason in support of depublication is that it gives the court the ability to eradicate the court of appeal's erroneous statements of the law without requiring the supreme court to expend its full resources in plenary review of a case that otherwise is not deserving of full review. It is, in short, an efficient way of keeping the law clean. [FN225]
There are several errors in this analysis. First, the depublication process consumes a substantial amount of the court's resources because it diverts the court's attention away from its more important responsibility of declaring what is the law (rather than implicitly indicating by depublication what is not the law). In order to decide whether an opinion should be depublished, the court must engage enough of its attention to determine that something in the opinion is wrong, and presumably, the court spends more time thinking about a depublication than it does a denial of a petition for review. This raises a question of whether the incremental savings from the depublication process compared to plenary review (especially when the court can limit review to one or more issues) is worth the discomfort created by the depublication process.
Second, the analysis assumes the supreme court can correctly determine whether the court of appeal did something wrong short of full briefing, oral argument, and preparation of a draft opinion. A petition for review is no substitute for full briefing. And even if oral argument is dispensable (a dubious proposition in the context of cases important enough to attract the supreme court's attention), the requirement *495 of an opinion with attendant reasoning is designed not only for the benefit of the parties and the public, but to insure the court itself has fully analyzed the issues involved in the case. Every time the court takes the shortcut of ordering depublication, it risks falling into error.
Third, the depublication practice would appear to violate the spirit, if not the letter, of the constitutional requirement that all decisions that determine causes by California Appellate Courts be supported by an opinion with reasons. [FN226] It is plain that an order of depublication -- unlike a mere denial of review -- changes the state of the law. At the very least, an opinion that was part of California law is expurgated, and the law has thereby been changed. [FN227] The written-opinion-with-reasons clause of the California Constitution expresses the long tradition that significant judicial decisions and judicially caused changes in the law be supported by publicly available reasoning. [FN228] Indeed, the reasoned opinion is intended to distinguish the judicial branch from the other branches of government.
Finally, even the defenders of the depublication practice have recognized that there is a danger of abuse. Kent Richland, who otherwise supports depublication, issued the following caveat:
*496 But like any other useful tool, depublication can be misused. California needs a supreme court that issues opinions on the significant legal questions of the day. Depublication provides no substitute for that function. If, as some have suggested, the supreme court is responding to its current workload crisis by depublishing opinions where it should grant review, the answer is not to abolish depublication, which plainly has a legitimate role to play. The answer, rather, is to institute whatever reforms are necessary to insure that the supreme court can perform its fundamental job -- to provide guidance to our legal system on important issues -- in optimum fashion. [FN229]
The sheer number of opinions depublished causes concern about whether the court has not crossed the line from a proper use of depublication to its misuse. Dean Uelmen reports that the California Supreme Court, during the six years under Chief Justice Lucas, published 650 opinions and depublished 695 opinions. [FN230] From sheer volume, the incidence of depublication strongly suggests it is an abused, overused tool.
California appears to be the only jurisdiction in the country to permit its highest court to control the development of the law by depublishing court of appeal opinions. It is a practice that should be stopped.
IV. Relationships Between the Appellate System and Other Entities
The appellate system shares interests and goals with several other governmental and court entities. The appellate courts should reach out to encourage collaboration with these entities when collaboration will benefit the entire judicial system.
A. Relationship to the Legislative and Executive Branches
The appellate judiciary has an important interest in coordinating its activities with the legislative and executive branches of state government. All three branches have a common interest in providing the highest quality of justice on an equal basis, with sensitivity to the legitimate concerns and needs of a pluralistic society. The appellate judiciary must continue to work cooperatively with the other branches to encourage the enactment of legislation that advances this general interest as well as the narrower interests of the appellate system. Many of the changes suggested in this Article require rule, statutory, or even *497 constitutional changes, and those changes will not take place without the active cooperation and support of the coordinate branches.
Appropriations, one aspect of the relationship between appellate courts and the other branches, deserves special mention. The California Constitution does not grant the judicial branch express authority to appropriate funds necessary for its operation. While by statute, superior and municipal courts are expressly given the power to appoint county officers to authorize expenditures necessary for the operation of those courts in the event the local governmental units fail to appropriate sufficient resources, [FN231] no similar express power has been vested in the California Supreme Court or California Courts of Appeal. Thus, if these courts have any power to order appropriations for the benefit of the judiciary, such a power must be derived as a necessary adjunct to the grant of judicial power to the judicial branch of the state.
There is some reason to believe that the judicial power may encompass the power to order expenditures when constitutional principles will necessarily be sacrificed in absence of those expenditures or appropriations. [FN232] Indeed, for constitutional remedies, courts may have the power to impose taxes on the people and raise revenue if new revenues can be shown absolutely necessary to achieve constitutional compliance. [FN233] The budget crisis in New York through 1991 and 1992 triggered a lawsuit by members of the judicial branch against the executive branch on these very grounds. [FN234]
Although the appellate courts may have residual power to order appropriations when absolutely necessary to preserve the core functions of the judicial branch, painful budget cuts can occur long before the constitutional line has been crossed. It is therefore very much in *498 the appellate judiciary's interest to cooperate with the legislature and governor to reach a shared understanding and consensus about the budget needs of the appellate system.
One particular aspect of the appellate budget stands out as something of an anomaly. The proposed budget for 1993 to 1994 for the appellate system -- which includes the California Supreme Court, the Courts of Appeal, the Judicial Council, and the Commission on Judicial Performance -- is $155.6 million, only 0.3 percent of the state's total budget. But $45 million of that budget (twenty-nine percent) is used to compensate constitutionally required appellate defense counsel.
This constitutionally mandated $45 million expense should not be included in the judiciary's budget because the judiciary is constitutionally obligated to spend this money. The practical, political result of inclusion is that when the Governor calls for a fifteen percent reduction in the appellate judiciary's budget, that fifteen percent (which equals $23 million of the $155.6 figure) must be cut from what remains after deducting the $45 million expense from the $155.6 million budget. In other words, a so-called fifteen percent reduction in the appellate judiciary's budget is actually a twenty-one percent cut in funds used to operate the judiciary. Although experienced legislators undoubtedly understand this financial reality, some legislators and the public are unaware that a fifteen percent cut in the appellate judiciary's budget cuts much deeper than the fifteen percent figure would otherwise indicate.
B. Relationship to Trial Courts
At present, a substantial gulf exists between the trial courts and our appellate tribunals. Communication between the two systems occurs primarily in the form of opinions by the court of appeal reviewing the work of the trial courts in individual cases. Trial court judges are represented in the Judicial Council and upon the Council's many committees, although trial judges do not make up a majority of the Council's voting members, [FN235] a point of contention among some trial judges. But when it comes to the core goals of the appellate system, the written opinion in the individual case remains the primary mode of communication.
There is some reason to believe that additional channels of communication should be opened ( e.g., by creating an Appellate and Trial *499 Courts Coordinating Council) and that a significant amount of error reduction (not just error correction) and improvements in coordination could be accomplished through these alternate channels. [FN236] For instance, around ninety percent of the criminal cases filed in California are pled prior to trial, and a significant portion of the court of appeal's criminal docket consists of appeals following guilty pleas. For example, around forty-four percent of the Third Appellate District's criminal docket are appeals following guilty pleas, and many of those are Wende appeals. [FN237] Correctly accepting a guilty plea is a more involved process than the public (or even most lawyers) imagine, and perfecting an appeal from a plea is an equally challenging adventure. Both of these processes are, however, amenable to standardized treatments through the use of forms, scripts, and rules, and there is no reason why such standardized processes should not be contemplated by the appellate courts in consultation with members of the trial bench. Justice Nicholson of the Third Appellate District, in the first paper prepared as part of a study of the 'Trial Court Plea/Disposition Continuum,' [FN238] includes analysis and a series of forms for superior courts to use after sentencing in criminal cases disposed of by plea as guidance through the process of perfecting an appeal under California Penal Code Section 1237.5 and preparing the trial court record on appeal. [FN239]
Figure 2 Figure 3 *501 There are undoubtedly many other routine trial court functions that, if improperly performed, generate extra work for the appellate system, and many of these routine functions are susceptible to a similar sort of standardized treatment. One could imagine, for example, the adoption of a standardized presentence report. Perhaps sentencing errors, which form a substantial portion of criminal appeals, could be reduced by uniformly developing or adopting existing computer programs to assist the trial judge in arriving at a sentence.
This sort of a systemic approach to reducing errors in the trial courts can be viewed as another alternative form of appellate review. Instead of reviewing individual errors, the appellate courts, working with the trial courts, should seek to identify repetitive, avoidable errors and to develop mechanisms by which those errors can be avoided. It is very much in the appellate courts' interest, after all, to reduce trial court errors, rather than simply correct them after they have occurred.
Many, and perhaps most, of these efforts could be readily accomplished through the California Center for Judicial Education and Research (CJER). Formed in 1973, the CJER, which is funded by the *502 Judicial Council, is responsible for educational programs for judges and other judicial officers. In addition to providing training for new trial and appellate judges, the CJER has continuing educational programs for judges and regularly published written materials to keep California's judiciary current, such as judges' benchbooks. With the creation of a state-wide judicial computer network, the CJER will be able to digest and transmit timely information to trial courts regarding trial court errors as identified by the appellate courts. The CJER should become an important conduit between the appellate courts and the trial courts. [FN240]
C. Relationship to Federal Courts
California's appellate courts have a special interest in forming links with the federal courts that have jurisdiction in California. The most significant reason for such a link is to facilitate the coordination of state criminal cases that ultimately may be habeas cases in federal court. Although the United States Supreme Court has significantly streamlined the habeas process in recent years, [FN241] California appellate courts would benefit by opening a dialogue with the federal bench regarding the reduction of constitutional errors in California's courts. Such errors form the basis for federal habeas challenges and California courts could help streamline federal courts' habeas petitions process through error reduction. [FN242] Such efforts promise increased speed in processing habeas review, a decreased likelihood of state court error, and a resulting strengthening in the public's confidence in the judiciary.
D. Relationship to Foreign Courts and Sovereigns
To meet its constitutional responsibility, California's appellate courts need to use creativity, wisdom, and judgment. As the largest *503 state judicial system in the country, some of California's problems are unique. But many of California's problems are similar to problems in other states, in the federal system, and in other countries, including this nation's immediate neighbors, Canada and Mexico. California's courts should draw upon the experiences and expertise of other systems to modify their own and to be able to cooperate with other systems if necessary. Through a process of comparison, critical self- reflection, and thoughtful growth, California's courts will be able to assure California's citizens that their judicial system is worthy of respect and pride and able to deal effectively with other systems.
Cooperation with the Canadian and Mexican bench and bar is especially important in light of the North American Free Trade Agreement (NAFTA), which will go into effect on January 1, 1994. [FN243] NAFTA creates a free trade area and provides for the gradual removal of tariff and nontariff trade barriers in goods and services between the three signatories, the United States, Canada, and Mexico. Unlike the Treaty of Rome [FN244] and the Maastricht Treaty, [FN245] both of which establish the supranational authority of institutions comprising the European Economic Community (EEC), NAFTA does not create formal dispute-resolution institutions that are empowered to issue binding judgments or enact binding laws. But NAFTA does, in advisory language, call for the harmonization of laws affecting trade, and there is a good possibility that more formal supranational institutions will ultimately be created as problems of implementation under NAFTA arise. [FN246]
History demonstrates that sovereigns constantly strive to expand their spheres of influence and control beyond their existing territorial boundaries, in part simply to satisfy the sometimes insatiable desire for more power and in part to create governmental structures that can legitimately regulate expanding private institutions ( e.g., the international conglomerate). Throughout most of history, expansion was accomplished through the use of force. In recent years, expansion has *504 often taken the form of intergovernmental alliances in which elements of sovereignty are either bargained away to a larger governmental structure, as in the case of the EEC, or made subject to superior international obligations, as in the case of the United Nations. While no one today would forecast the creation by 2020 of a unified North American (or hemispheric) state along the lines of the EEC, increase in transnational cooperation between Canada, Mexico, and the United States is likely, and such cooperation may have effects on the United States' judicial system. As the nation's largest judicial system and in light of California's proximity to Mexico, California will likely become a ground for judicial experimentation. The California appellate courts should at minimum be aware of this position and be willing to take an active role.
E. Relationship to the Court Library
The court library is an integral part of the appellate system. It is the court's access to all materials, besides the record and briefs, that are necessary to resolve appeals. Because of its importance to the decision-making process, appellate courts must insure that court libraries remain adequately funded and staffed. In recent years, these issues have been extensively studied by the State, Court, and County Law Libraries Section of the Appellate Court Library Standards Committee, which is in turn part of the American Association of Law Libraries. [FN247]
While the library of the future will be changed fundamentally by technology, it will not disappear, as noted by Harry Martin, law librarian at Harvard Law School:
Will the personal computer and the growth of electronic information threaten the very existence of the library? If everyone can access the library catalog, computer-assisted instruction, full-text databases, and electronic bulletin boards from their office or dorm room, will the library atrophy? I think not. The library serves as the interface between its community and the universe of information. Its role is changing from being a mere custodian of books and printed material to a multimedia information outlet, providing information, knowledge, and experience in other forms and media. . . . Proactive libraries committed to the new technologies are learning centers with huge potential for enabling individuals and groups to *505 control the direction and set the pace of their own intellectual growth. [FN248]
The new technology will allow all court libraries to be linked together in one network, creating a unified state court law library (perhaps centered in the existing state law library in Sacramento), which will, in turn, be linked to a national law library, probably operated out of the Library of Congress. [FN249] These communication links will dramatically improve judicial access to the universe of information relevant to deciding appeals.
Especially in light of the fundamental changes to our libraries from new technology, the Judicial Council should create a Law Library Coordinating Council including representatives of existing state and local libraries, the State Law Librarian, and judges of all levels with a judge designated by the Chief Justice as chair of the committee. Intelligent planning for libraries of the future requires the centralized oversight and planning that the Council would provide.
F. Relationship to the Center for Judicial Education and Research
The Center for Judicial Education and Research will continue to play the leadership role in preparing new and sitting trial and appellate judges for the twenty-first century. [FN250] New technologies will make it possible for the CJER to organize and conduct its courses more efficiently. [FN251] Those courses and the written materials pertinent to them will be paperless. [FN252] Judges will use telecommunications and computers for full and inexpensive access from wherever they may be, day or night, of the CJER's written, oral, and video resources, as well *506 as case law, statutes, and legal treatises. [FN253] The CJER resources will be kept current virtually daily. [FN254] Moreover, with the advent of mandatory judicial education, computers will facilitate reliable tracking of judges and their completion of required courses. [FN255]
The CJER might consider undertaking preliminary communications with its counterpart organizations responsible for education and training of the various professions that comprise the justice network. Such communications may lead to new techniques to educate and inform other professionals and participants in the broader justice network, including, among others, staffs of the offices of the Attorney General, the State Public Defender, corrections agencies, the Department of Motor Vehicles, the California Highway Patrol, probation departments, county counsels, district attorneys, public defenders, and local law enforcement agencies. Appellate courts, which are primarily responsible for insuring the uniform explication of the law, may find such an outreach effort to be helpful in promoting the uniform application of law.
Should dialogue with other educational elements of the justice network prove preliminarily successful, the CJER may find ways to reach the appellate courts' audience directly with timely information about the most current interpretations of the law. The CJER staff, working in conjunction with these various educational devices and the appellate courts, may identify important decisions, draft summaries of those decisions in language appropriate for the audience, and electronically transmit those summaries state-wide. There is no reason, for example, why law enforcement agencies around the state should not be made immediately aware of new search and seizure decisions in understandable language. [FN256]
*507 Any such outreach programs will also require new approaches and new technologies. Expansion of the CJER's existing target audience to include other participants in the broader justice network will entail an increase in the CJER's communication responsibilities. Those responsibilities will not be overwhelming, however, because the justice network will be entirely interconnected via a state-wide computer network. With a communication network in place, reaching an expanded audience will be as simple as communicating with the CJER's existing audience.
G. Relationship to Law Schools
There was a time when law schools worked hand-in-hand with both the bench and bar to improve the administration of justice. As recently as 1940, Dean Roscoe Pound authored a book devoted entirely to the structure of the court system. [FN257] But during the past thirty years or so, an ever-widening gulf has opened between academia, on the one hand, and the bench and bar, on the other hand. The gulf can be seen most dramatically in the increasing irrelevance of legal scholarship to the practice of law. [FN258] The gulf goes beyond that most visible symptom to include law school curricula that increasingly emphasize 'law and fill in the blank' courses in which the 'blank' is more important than the law.
The American Bar Association (ABA) has addressed law schools in a recent report of the ABA's Section of Legal Education and Admissions to the Bar. [FN259] This report, known as the MacCrate Report, [FN260] set forth a vision for increased cooperation between the bar and law schools and suggested a renewed commitment by law schools to the needs of the profession.
In 1984, at a program entitled 'Legal Education and the Profession: Approaching the 21st Century,' Judge J. Clifford Wallace of the Ninth Circuit Court of Appeals made a similar call to academia:
Law schools have an important role to play in the transformation of law in the twenty-first century. Law schools should provide research to determine what structural and procedural changes should be made throughout our system of justice. In looking to the law *508 schools for research, we look to an historical strength of purpose, albeit unfulfilled in some areas. There are examples of law school faculty members who do provide us with research and insight into the nature of the problems we face, often challenging our basic assumptions about the limits of the current legal system in ways that may help shape our future. Yet, too often the law schools' contribution is in other areas, sometimes exclusively so. I believe the law schools contain an excess capacity for purposeful research and that they should be called upon to use that capacity in conscious planning for the future. [FN261]
This Article has called for further research to be conducted in a number of areas. Needless to say, the Judiciary's limited financial resources effectively preclude this much research from being conducted by the Judiciary itself. The Judicial Council and law schools should reach out to one another and identify talented faculty members and students able to contribute to a better understanding of how the judicial system may be refined and improved.
There is great promise for this cooperation, largely through the work of the Commission on the Future of the Courts. With encouragement from the Chief Justice, law schools were of real interest to the Commission. As a result, Boalt Hall, McGeorge School of Law, Stanford Law School, and the University of Southern California, among others, have contributed significantly to the Commission's work. [FN262] This hopeful beginning should be nurtured by the Council and the state's law schools.
H. Relationship to Technology
The appellate system will not be immune to new technology. Indeed, it is likely that the most far-reaching changes in handling appeals will be brought by technology. The look and feel of an appeal will be fundamentally different when an appellate judge and his or her staff have immediate computer access to the entire record of proceedings below (including the Reporter's Transcript and Clerk's Transcript), counsels' appellate briefs directly linked to all authorities cited and to all record cites, [FN263] an all-inclusive 'World Law Library,' the draft opinion, and comments from other judges on the panel. Refined *509 and wide-spread telepresence will also make it possible for appellate justices to continue working regardless of location without meaningful diminution of personal access to one another and staff or of collegiality.
Technology comes with a price, of course, and carries its own peculiar risks. Harry Martin of Harvard Law School warns us about 'the technocentered personality,' who tries to match the performance level of the machines with which she works, forgetting that the machine is a machine, and she is human. [FN264]
Intelligently planned and carefully used, however, new technology will facilitate working relationships between appellate justices and their staffs, improve the efficiency with which the appellate system does its job, and enhance the quality of its ultimate work product. Properly conceived and applied, technology will be embraced by the judiciary as a friendly and useful resource.
I. Relationship to the Media
Although many citizens end up in court at one time or another during their lives (either as a party or as a member of a jury), most information about the courts reaches the public through instruments of mass media. The public in California appears to hold a generally low opinion of the courts, a majority of Californians (fifty-two percent) indicating in a recent survey that they had an 'only fair' or 'poor' opinion of the courts. [FN265] To the extent the public's opinion is based on a thorough understanding of the court system, it becomes incumbent upon the courts to reexamine the system. Yet the same survey indicates that most citizens know very little about the court system, with forty percent indicating they are 'somewhat familiar' with the courts and twenty-one percent indicating they are 'not familiar at all' with the courts. [FN266]
The judiciary should reach out to the instruments of mass media, helping reporters to understand better how the system works (and sometimes does not work), giving the media more convenient and greater access to the courts, and cooperating, when possible, with the media as it attempts to inform the public about judicial business. Local bench, bar, and media committees, which give the local media an opportunity outside of the courthouse to become better acquainted with the members of the bench and bar, is another avenue which *510 should be exploited. In general, giving the public greater access to and information about the judiciary through the mass media is almost certain to improve public understanding of and respect for the court system.
The ultimate purpose of this Article is to conceive and portray a preferred future for California's courts. California's appellate courts should begin planning today by creating the framework for the future.
For centuries, appellate courts have promoted public trust in the judicial system and in government by reviewing decisions from lower courts or other governmental tribunals for legal or factual error. In the course of reviewing those decisions, appellate courts have contributed to the development of a body of more or less predictable, uniform, and just laws. The three core goals -- correcting errors committed by other tribunals; enhancing predictability, uniformity, and justice in the development of the law; and promoting public trust in the judicial system -- should remain the focus of the California appellate system.
Appellate judges are charged with the function of identifying legal and factual errors committed by trial courts. Reversing decisions based on prejudicial errors and affirming all other decisions ( i.e., error correction) protects litigants' rights to have disputes resolved in accordance with law. Explaining appellate decisions in publicly available written opinions would satisfy litigants' demands for individualized justice and, by educating trial counsel and trial judges, reduce the likelihood that similar errors will be repeated in the future ( i.e., error reduction).
Appellate courts should still pursue error correction and reduction primarily through review of individual cases. Error correction necessarily involves individualized review. Error reduction, by contrast, may be accomplished in other ways. Appellate courts should organize themselves more actively to reduce errors. For example, the Judicial Council could include an Appellate and Trial Courts Coordinating Council to recommend procedures, rules, and statutes to simplify trial court functions and assist trial court judges in performing those functions. The Judicial Council may include a State and Federal Courts Habeas Corpus Council to identify repetitive constitutional errors in criminal cases that lead to subsequent federal habeas challenges and recommend procedures, rules, and statutes to reduce such errors. Both of these councils -- and the Judicial Council as a whole -- *511 would utilize the scholarly and research resources of the Center for Judicial Education and Research and the state's law schools.
Increased public availability of appellate opinions and the principle of stare decisis would foster development of a body of law to guide the public, litigants, lawyers, and the courts in resolving future disputes. Law that is clear in formulation and predictable in application facilitates conformation of conduct to the law, and would thereby reduce the number of disputes which need to be litigated. When disputes arise, lawyers would be able to render advice regarding likely resolution with more certainty. Finally, trial courts would be less likely to err because the law would be clear and predictable.
Appellate courts could maximize clarity and predictability in the law consistent with the demands of justice by promoting public harmony and trust in government. Particularly, appellate courts should seek to establish clear rules of law in preference to general standards or guidelines for consideration by a trier of fact. General guidelines, while arguably serving the needs of justice, create unnecessary battlegrounds for litigants.
Appellate courts should no longer be physically and informationally remote from the public, litigants, lawyer, or trial courts. Appellate courts, with the help of educational institutions (including the Center for Judicial Education and Research), should utilize multimedia programs to explain the goals, rules, and procedures of the appellate system and to disseminate summaries of important appellate decisions. The programs should be accessed easily on computer or video terminals throughout the entire justice network, at trial court facilities, law enforcement agencies, jails and prisons, educational institutions, public libraries, public and private law firm libraries, the media, and through dial-in services.
Appellate courts must utilize a wide range of information and communication technologies. Most components of state government would be essentially paperless. Information should be stored electronically, and paper copies of that information would be used only when paper provides a clearly superior medium. All state agencies, including the appellate courts and the Center for Judicial Education and Research, should agree upon a standard electronic data structure to make it possible for information to be shared electronically between agencies.
Appellate courts and trial courts would be paperless as well. All filings would be in an approved electronic medium (any paper, including those in pro se cases, would be immediately scanned by trial court *512 staff into that electronic medium). All filings would also automatically be included in the clerk's transcript, electronically accessible as a public document. Court reporters could prepare and compile an accurate reporter's transcript in real- time by using computer-assisted transcription technology. The reporter's transcript would also be electronically accessible as a public document.
The clerk's transcript and reporter's transcript of a perfected appeal would be immediately available to the appellate court for review and processing. All motions and briefs on appeal would be submitted in an approved electronic medium or scanned by appellate court staff into electronic medium. Absent court order, the entire record on appeal and all appellate motions and briefs would be accessible as public documents with direct access from telephones or interactive television to other public court information as well, such as the scheduling of arguments, hearings, or trials.
An electronic law library network would link together all law libraries in the state and the country and be freely available by telecommunication to all litigants, counsel, and the appellate courts through terminals located in trial court and appellate court facilities, law enforcement agencies, jails and prisons, educational institutions, public libraries, public and private law firm libraries, and through dial-in services. The public should have direct access through telephone and interactive television to law library resources. The Judicial Council would include a Law Library Coordinating Council to define and foster application of policies related to, and the development of, the law library network.
Without meaningful diminution of personal access to one another and staff or to collegiality, telepresence and telecommuting would permit appellate justices to perform their work anywhere and at any time. Simply by dialing into the Appellate Court Network, justices would have instant access to all publicly available materials such as published cases, statutes, and treatises, along with the record and all filings and motions in every case. The court's private materials like internal memoranda from clerks, electronic mail from judicial colleagues, staff, and draft opinions would also be immediately accessible.
Most appellate arguments would be conducted by telepresence using High Definition Television video-conferencing capabilities to save time and money for both the courts and counsel. All supreme court arguments and selected court of appeal arguments would be broadcast live through the cable system directly to the media and the *513 public. This easy access to appellate processes should facilitate public understanding and trust in the judicial system.
While the use of new technologies would enable appellate courts to keep pace with increasing caseloads, those technologies will not interfere with the judiciary's fundamental character as an institution that relies upon human judgment in applying law to resolve individual disputes.
Finally, although the judiciary would remain the indispensable core of the state's broader justice network, the purpose of which is to preserve public trust, promote civil liberties, and foster domestic order, the judicial branch -- and the appellate courts in particular -- would continue to require but a comparatively small portion of the state's overall budget. The number of appellate judges should not significantly increase, but staff support should more than double, with each intermediate appellate justice assigned five law clerks, and each supreme court justice even more.
Preferred Vision for the Future of the Appellate Courts Appellate Courts
Committee Commission on the Future of the Courts
July 20, 1993.
1. Although the appellate system operates in the context of a changed society and environment, it continues to serve the same fundamental governmental functions it has served for centuries.
2. The core goals of the appellate system continue to be:
(a) to correct and reduce the number of errors committed by other tribunals;
(b) to enhance predictability, uniformity and justice in the development of the law; and
(c) to promote public trust in the judicial system.
3. Appellate courts continue to correct erroneous trial court decisions by reviewing the record on appeal for legal and factual errors. Appellate courts reduce the number of trial court errors and improve the quality of justice by expanding the channels of communication with trial courts, other branches, agencies and levels of government, federal courts, the bar, and law schools.
4. Appellate courts continue to guide the development of the law to maximize clarity and predictability in its formulation and application. Thus, citizens are better able to conform their behavior to the law and to anticipate legal consequences, with the result fewer disputes need to be litigated at the trial court level, and fewer litigated disputes lead to appeal. The quality of justice at the trial court level, which includes a rich mix of alternative dispute resolution mechanisms, satisfies most litigants their claims are fairly and fully heard, and, most importantly, correctly and clearly decided.
5. Multimedia programs are transmitted from appellate courts to computer terminals or video kiosks located in trial court facilities, law enforcement agencies, jails and prisons, educational institutions, and public and private libraries to inform users (trial court staffs, public and private lawyers, litigants, and the public) about the law, including appellate rules and procedures. These programs improve submissions to the appellate courts by increasing users' understanding of the appellate process. Such understanding promotes better, more timely submissions and enhances greater public *515 trust that appellate justice is being rendered in compliance with the law, fairly and justly to all.
6. The appellate courts are paperless, thereby reducing the time and costs associated with processing appeal. Appellate justices and their staffs, lawyers, litigants, and the public have easier access to briefs, records, files, law libraries, court schedules, and legal opinions. Without meaningful diminution of personal access to one another and staff or to collegiality, telepresence and telecommuting permit appellate justices to work anywhere and at any time. Many appellate arguments are conducted by telepresence using video-conferencing capabilities. Trust in the judicial system is promoted by making available to the media and the public live broadcasts of all supreme court oral arguments and selected court of appeal oral arguments.
7. In cooperation with other agencies, appellate courts have agreed to uniform standards for electronic data structures, permitting information to be transmitted electronically throughout the justice network.
8. An electronic law library network links together all law libraries in the state and the country. The network is accessible to each appellate and trial court, lawyers, litigants, and the public. The public has direct access to law library resources through telephone and interactive television. The Judicial Council includes a Law Library Coordinating Council to define and facilitate application of policies related to, and the development of, the law library network.
9. Recognition of the indispensable core role the judiciary plays in preserving public trust, civil liberties, and order, and appreciation of the fragility of the judiciary in light of the comparatively small portion of the state budget accorded to appellate courts, has created better, more effective budgeting for the appellate courts by the Legislature. The number of appellate judges has not significantly increased, but staff support has more than doubled, with each intermediate appellate justice being assigned five law clerks, and each supreme court justice even more. The judiciary's budget includes only those items that properly reflect judicial functions. The Legislature does not consider costs associated with providing indigent counsel as part of the judiciary's budget. The judiciary's budget includes probation services, which are overseen by the Administrative Office of Courts since those services are under the direct control and supervision of, and indispensable to, the judiciary.
*516 The first draft of this Article was sent to more than 125 reviewers, including California appellate judges. The penultimate draft was sent to all members of the Commission on the Future of the Courts. The author acknowledges the helpful responses received from the following:
Judge Arthur Alarcon (9th Circuit Court of Appeals); Justice Carl W. Anderson (First District Court of Appeal); Justice James A. Ardaiz (First District Court of Appeal); Justice Coleman A. Blease (Third District Court of Appeal); Justice Winslow Christian (Retired, First District Court of Appeal); Justice Howard M. Dabney (Fourth District Court of Appeal); Justice Charles W. Froehlich Jr. (Fourth District Court of Appeal); Justice Joseph R. Grodin (Retired, California Supreme Court); Justice Zerne P. Haning III (First District Court of Appeal); Judge Anthony W. Ishii (Parlier-Selma Justice Court District); Justice Otto Kaus (Retired, California Supreme Court); Justice J. Anthony Kline (First District Court of Appeal); Justice Henry T. Moore Jr. (Fourth District Court of Appeal); Justice Michael G. Nott (Second District Court of Appeal); Justice James F. Perley (First District Court of Appeal); Justice Arthur G. Scotland (Third District Court of Appeal); Justice Robert Thompson (Retired, Second District Court of Appeal); Justice Steven M. Vartabedian (Fifth District Court of Appeal); Justice Fred Woods (Second District Court of Appeal).
Alexander B. Aikman (Senior Fellow, National Center for State Courts); Robert Bacon (Deputy State Public Defender); Professor Stephen Barnett (Boalt Hall); Professor Keith Boyum (C.S.U., Fullerton, 2020 Vision Project Evaluator); Janice Rogers Brown (Legal Affairs Secretary, Office of the Governor of California); Gary Scott Decker (President, Sacramento County Bar Association); Robert Dockson (Chair, Commission on the Future of the Courts); Dennis Fischer (President, California Academy of Appellate Lawyers); Paul S. Fu (Librarian, Supreme Court of Ohio); Jeffrey Hogge (Esq.); Paula Hui (Esq.); Professor Emeritus Gideon Kanner (Loyola Law School); Robert Keldgord (Chief Probation Officer, Sacramento County Probation Department); Professor Julian Levi (Hastings College of Law); Robert Liston (Clerk, Third District Court of Appeal); Los Angeles County Bar, Appellate Court Committee; Catherine Lowe (Director, Center for Judicial Education and Research); Honorable *517 Alister McAlister (California Assembly, Retired); Professor Daniel Meador (director of appellate judges advanced; graduate study program, University of Virginia School of Law); Albert J. Menaster (Deputy In-Charge, Los Angeles County Public Defender); Michael Millman (Director, California Appellate Project); Dean V. Robert Payant (National Judicial College); Harry B. Sondheim (Head Deputy District Attorney, Appellate Division, Los Angeles County District Attorney's Office); San Diego County Bar Association, Appellate Court Committee; Joseph A. Santoro (Police Chief, Police of Monrovia City); Professor John Sprankling (McGeorge School of Law); David Stanley (Executive Director, First District Appellate Project); State Bar of California, Committee on Appellate Courts State Bar of California, Committee on the Administration of Justice State Bar of California, Litigation Section; Sanford Svetcov (Chair, San Francisco Appellate Courts Committee); Dean Gerald Uelmen (Santa Clara University School of Law); Linda Wallahan (Librarian, Third District Court of Appeal); Bernard Witkin (Esq.).
FNd. The first draft of this Article was sent out to more than 125 reviewers, including all appellate judges in California. The penultimate draft was sent to all members of the Commission on the Future of the Courts. The author acknowledges the helpful responses received from all reviewers. There are too many to thank here. Accordingly, please see the list in the Appendix following this Article.
FNa. Professor, University of the Pacific, McGeorge School of Law. This Article was prepared for the use of the Appellate Courts Committee, Commission on the Future of the Courts, State of California. The Committee consists of the Honorable George Nicholson (Chair) (Third District Court of Appeal), the Honorable Harry Low (Retired), the Honorable Vance Raye (Third District Court of Appeal), the Honorable Judith McConnell (Superior Court, County of San Diego), the Honorable Dan Lungren (Attorney General), Ms. Fern Laethem (State Public Defender), and Mr. Richard Chernick (Gibson, Dunn & Crutcher). The views expressed herein are the views of the author.
FN1. McKane v. Durston, 153 U.S. 684, 687-88 (1894). The Court's interpretation of the Due Process and Equal Protection Clauses is of course informed by long-standing practice. In light of the almost universal availability of one appeal as of right, there is an argument that, notwithstanding the Court's decision in McKane, the Constitution today requires one appeal as a matter of right. But see Evitts v. Lucey, 469 U.S. 387, 393 (1985) (holding that if a state has an appellate system, the procedures must comport with due process and equal protection) (citing McKane).
FN2. 1 John Henry Wigmore , A Panorama of the World's Legal Systems 11-13, 28- 34 (1928).
FN3. Id. at 289-93.
FN4. Frank M. Coffin , The Ways of a Judge 16 (1980).
FN5. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). Accordingly, the mere fact that an appellate court may reverse the decision of the lower court does not necessarily mean that the appellate court's decision is right and the lower court's decision is wrong. Thus, in analyzing the work of appellate courts, one must exercise caution in interpreting rates of reversal or affirmance. Affirmance and reversal statistics, standing alone, may be poor indicators of how well the appellate system is working.
FN6. See infra Part III.B. As will be seen below, the error correction goal should be broadened to include the idea of error reduction. That is, appellate courts should be doing more than merely correcting an error in a completed trial; appellate courts should be actively seeking ways to reduce error in future proceedings and, equally important, to reduce the need for future trials at all.
FN7. See, e.g., Standards Relating to Appellate Courts 4 (1977) hereinafter Standards Relating to Appellate Courts ; Paul D. Carrington et al. , Justice on Appeal 2-3 (1976); Coffin , supra note 4, at 16; Roscoe Pound , Appellate Procedure in Civil Cases 1-3 (1941); Philip B. Kurland, Jurisdiction of the United States Supreme Court: Time for a Change?, 59 Cornell L. Rev. 616, 618 (1974).
FN8. See infra Part I.A.
FN9. These goals have been reordered from the priorities established by the Judicial Council of California. See Judicial Council of California, 1992 Annual Report xxvii-xxviii (1993) hereinafter 1992 Annual Report .
FN10. See infra Figure 1.
FN11. This set of relationships may be conceptualized as a 'justice network' that consists, in part, of:
State Judicial Branch -- Supreme Court, Court of Appeal, Judicial Council, Administrative Office of the Courts, and the Commission on Judicial Performance.
State Executive Branch -- Attorney General, Public Defender, Youth and Adult Corrections Agency, Department of Motor Vehicles, and the California Highway Patrol.
State Legislative Branch.
Counties -- Superior Courts, Municipal Courts, Probation Departments, Law Libraries, County Counsels, District Attorneys, Public Defenders, and Sheriffs.
Cities -- City Attorneys, Police Departments.
George Nicholson, 2020 Justice -- Technology and the Future of Justice in California, Gov't Tech. , June 1993, at 5 (special section on 'Judicial Automation').
FN12. National Center for State Courts, The Pulse of Justice 51 (1993).
FN13. Municipal and justice courts have jurisdiction in criminal misdemeanor and infraction cases, Cal. Penal Code s 1462 (Deering Supp. 1993), in civil cases of $25,000 or less, and in small claims cases not exceeding $5,000, Cal. Civ. Proc. Code ss 86, 86.1, 116.210-.220, 904.2 (Deering Supp. 1993). A litigant dissatisfied with a judgment in a small claims matter may request trial de novo in the superior court. Cal. Civ. Proc. Code ss 116.710(b), 116.770(a) (Deering Supp. 1993). Criminal misdemeanor and infraction cases, and civil cases with a value of $25,000 or less, are appealed to the appellate department. See generally 2 Judicial Council of California , 1993 Annual Report 34 (1994) hereinafter 1993 Annual Report .
FN14. 1 1993 Annual Report , supra note 13, at 56 (including civil and criminal appeals from lower courts).
FN15. Id. at 59, 86.
FN16. Cal. Civ. Proc. Code s 77(a) (Deering Supp. 1993).
FN18. See Cal. Ct. R. 121-44.
FN19. There is no requirement that appellate department decisions be supported by a written opinion, however. Cal. Ct. R. 106.
FN20. Cal. Ct. R. 976.
FN21. Cal. Ct. R. 62, 63; Cal. Civ. Proc. Code s 911 (Deering Supp. 1993).
FN22. Cal. Const. art. VI, s 11.
FN23. Cal. Const. art. VI, s 10.
FN24. In 1991-92, for example, there were 22,415 total dispositions by the court of appeal. 2 1993 Annual Report , supra note 13, at 27. In the same year, the California Supreme Court disposed of only 5,466 matters, and not all of those involved review of court of appeal decisions. Id. at 7. Moreover, the supreme court decided only 89 matters by written opinion, less than one- half of 1% of the court of appeal's dispositions, and 26 of those opinions involved death penalty appeals directly from the superior court. Id. at 7, 13.
FN25. See, e.g., Standards Relating to Appellate Courts , supra note 7, at 4; Carrington et al. , supra note 7, at 2-3.
FN26. 1 1993 Annual Report , supra note 13, at 25.
FN27. Id. at 44.
FN28. These appellate filing figures, assuming there actually is a rough equivalence between superior and appellate court filings, are based on one researcher's projected filings in the superior courts. Samuel Krislov , 2020 Vision: A Future of the California Civil Courts tbl. 8, at 88 (1992). Moreover, filings in superior courts are well-correlated with local population growth, and appellate filings nationwide (as well as in California) are well- correlated with overall population growth. State Justice Institute National Center for State Courts, and Conference of State Court Administrators, The Pulse of Justice -- The Business of State Trial and Appellate Courts 51-52 (1993) hereinafter The Pulse of Justice .
FN29. 1 1993 Annual Report , supra note 13, at 25.
FN30. Id. at 25, 27.
FN31. Id. at 16.
FN32. Id. at 15.
FN33. Carrington et al. , supra note 7, at 230.
FN34. The Pulse of Justice , supra note 28, at 54-55. A clearance rate of 100 indicates that the court disposed of the same number of cases as were filed in the same year. A clearance rate over 100 indicates the court disposed of more cases than were filed, and a clearance rate of less than 100 indicates the court disposed of fewer cases than were filed. In 1989, the California court of appeal had a clearance rate for mandatory appeals of 120.3. The rate fell to 114.8 in 1990, and fell again to 98.9 in 1991. Id. The clearance rate for all dispositions and filings in 1991 was slightly less than 92%. Judicial Council of California , Annual Data Reference: 1991-92 Caseload Data by Individual Courts 5 (1993).
FN35. A similar debate over how large the federal judiciary can become before it begins to crumble under its own weight is now under way. See, e.g., Jon O. Newman, Expansion of the U.S. Judiciary Will Diminish Federal Law, S.F. Daily J. , May 19, 1993, at 4 (arguing that expanding federal judiciary will damage the system). But see Stephen Reinhardt, Freezing the U.S. Bench at 1,000 Means 2nd-Class Justice for Most, S.F. Daily J. , May 19, 1993, at 4 (arguing that freezing the number of federal judges will create an elite institution).
FN36. See generally Bernard E. Witkin , Manual on Appellate Court Opinions ss 7-15 (1977) (describing the duties and functions of law clerks in the appellate courts) hereinafter Witkin, Manual on Appellate Court Opinions .
FN37. The effective number of clerks per judge may be larger since some judges use judicial externs, law students who earn credit while performing certain research tasks, usually supervised by a staff attorney. Id. s 15.
FN38. Of course, to the extent that the rate of postjudgment interest is less than the market rate of interest, an appellant may have an economic advantage in delaying enforcement of the judgment for as long as possible in order to exploit the spread between the two interest rates. At present, postjudgment interest is set at 10%, Cal. Civ. Proc. Code s 685.010(a) (Deering 1987), which should deter appellants from filing an appeal solely for purposes of delay.
FN39. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393-94 (1985) (holding that due process and equal protection guarantee criminal defendants effective assistance of counsel on their first appeal as of right); Douglas v. California, 372 U.S. 353, 355-56 (1963) (holding that denial of appointment of counsel for indigent criminal defendants violates the Equal Protection Clause of the Fifth Amendment).
FN40. Stephen Green, Tougher Crime Laws Hit the Pocketbook, Sacramento Bee , Feb. 5, 1989, at A3.
FN41. People v. Olson, 264 Cal. Rptr. 817, 819 (Ct. App. 1989). The disparity may be due in part to consideration of all governmental costs as compared to costs limited exclusively to the appellate court.
FN42. See, e.g., cases cited supra note 39.
FN43. In 1991-92, there were 152 appeals from every 100 convictions after contested trials. 1 1993 Annual Report , supra note 13, at 15. A significant number of appeals follow guilty pleas, which explains how 152 appeals follow 100 convictions after contested trials. Id. Ninety-four percent of criminal appeals result in affirmances. Id. at 16.
FN44. First, how could an indigent defendant intelligently determine whether to accept the offer without having appellate counsel make a determination about the likely success on appeal? Arguably, the state would have to appoint counsel to help the defendant make that decision (an appointment that would increase the cost of the program to the state). Second, even if an indigent defendant received competent advice from counsel, $5,000 may be so great a sum of money as to cloud the defendant's decision-making ability. There is certainly an element of over-reaching in a program that offers a substantial sum of money to a criminal defendant for waiver of a constitutional right.
FN45. 1 1993 Annual Report , supra note 13, at 15-16.
FN46. See infra Part II.D.
FN47. Although a general petition for review procedure is inefficient, there may be greater merit in identifying certain narrow classes of appeals that would be subject to a petition for review procedure. In Virginia, such a system is in place at the intermediate appellate level, where certain categories of cases are reviewable only by petition. See Bernard G. Barrow, The Discretionary Appeal: A Cost Effective Tool of Appellate Justice, 11 Geo. Mason U. L. Rev. 31, 31-39 (1988).
FN48. Appeals in cases in which the offender has been sentenced to less than six months would also appear to be amenable to appellate department review, although for a slightly different reason. At present, review by the court of appeal is usually impractical in these cases because the sentence is served before the appeal can be heard. An expedited appeal to the appellate department based upon the trial court's file would appear to be a possible solution to this problem.
FN49. Paul M. Bator, What Is Wrong with the Supreme Court?, 51 U. Pitt. L. Rev. 673, 690 (1990) (emphasis added); see also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989) (arguing that the establishment of broadly applicable general principles is an essential component of the judicial process).
FN50. Compare Pokora v. Wabash Ry. Co., 292 U.S. 98, 105 (1934) (Cardozo, J.) (advising the 'need for caution in framing standards of behavior that amount to rules of law') with Baltimore & Ohio R.R. Co. v. Goodman, 275 U.S. 66, 69-70 (1927) (Holmes, J.) ('When the standard of conduct is clear it should be laid down once and for all by the courts.').
FN51. Amaya v. Home Ice, Fuel & Supply Co., 29 Cal. Rptr. 33, 44-45 (Ct. App. 1963).
FN52. Dillon v. Legg, 441 P.2d 912, 920-21 (Cal. 1968).
FN53. Burgess v. Superior Ct., 831 P.2d 1197, 1199-1203 (Cal. 1992) (holding that mother who observes injury to child during delivery results in 'direct victim' rather than 'bystander' cause of action for negligent infliction of emotional distress); Christensen v. Superior Ct., 820 P.2d 181, 188-92 (Cal. 1991) (permitting recovery to close family members for negligent infliction of emotional distress due to mishandling of corpses); Thing v. La Chusa, 771 P.2d 814, 829-30 (Cal. 1989) (allowing recovery for negligent infliction of emotional distress when plaintiff is closely related to victim, present at scene of injury, and suffers serious emotional distress); Elden v. Sheldon, 758 P.2d 582, 583-87 (Cal. 1988) (holding no cause of action for negligent infliction of emotional distress when death of unmarried cohabitant witnessed); Ochoa v. Superior Ct., 703 P.2d 1, 6-8 (Cal. 1985) (holding negligent infliction of emotional distress exists when parent observes defendant's negligent conduct toward child); Molien v. Kaiser Found. Hosps., 616 P.2d 813, 814-23 (Cal. 1980) (allowing recovery by direct victim for negligent infliction of emotional distress when only mental injury suffered).
FN54. Li v. Yellow Cab Co., 532 P.2d 1226, 1230-32 (Cal. 1975) (replacing 'all or nothing' contributory negligence theory with comparative negligence system).
FN55. J. Clark Kelso, One Lesson from the Six Monsanto Lectures on Tort Law Reform and Jurisprudence: Recognizing the Limits of Judicial Competence, 26 Val. U. L. Rev. 765, 786-92 (1992).
FN56. Ford v. Gouin, 834 P.2d 734, 740 (Cal. 1992) (holding that the duty of co-participants in a cooperative activity is to avoid intentional injuries or reckless conduct outside the range of the activity); Knight v. Jewett, 834 P.2d 696, 707 (Cal. 1992) (holding that when risks are inherent in an activity, participants may only be held liable for intentional injuries). The fallout and confusion engendered by these decisions have been quick in coming. See, e.g., Handelman v. Mammoth Mountain Ski Area, 19 Cal. Rptr. 2d 126, 138 (holding that skier did not assume risk of injury while skiing) (Raye, J., dissenting), depublished and review denied, 1993 Cal. LEXIS 4168 (Ct. App. 1993); Milwaukee Elec. Tool Corp. v. Superior Ct., 19 Cal. Rptr. 2d 24, 34 (Ct. App. 1993) (holding that the primary assumption of risk doctrine is inapplicable to strict products liability causes of action).
FN57. See supra text accompanying notes 6-7.
FN58. In exercising its discretion to review the decision of a court of appeal, the supreme court looks for the following types of errors: '(1) where it appears necessary to secure uniformity of decision or the settlement of important questions of law; (2) where the Court of Appeal was without jurisdiction of the cause; or (3) where, because of disqualification or other reason, the decision of the Court of Appeal lacks the concurrence of the required majority of qualified judges.' Cal. Ct. R. 29(a).
FN59. Cal. Const. art. VI, s 10.
FN60. Cal. Const. art. VI, s 12; Cal. Ct. R. 28.
FN61. 1 1993 Annual Report , supra note 13, at 7.
FN62. There were 113 filings in 1982-83, as compared to 269 filings in 1991- 92. 1 1993 Annual Report , supra note 13, at 7.
FN63. There was a 16% increase in petitions for review from 1982-83 to 1991-92 (3,205 to 3,724). Original civil filings rose from 206 in 1982-83 to 297 in 1991-92, and original criminal filings grew by 151.6% -- from 411 in 1982-83, when all filings were non-habeas corpus, to 1,034 in 1991-92, when 970 of the 1,034 filings were habeas. Id. at 8.
FN64. These figures are somewhat misleading, of course, since all seven justices on the supreme court act upon nearly all cases. Similarly, the figure given for the court of appeal is also understated because this court sits in panels of three.
FN65. As noted above, the level of staff support is also an important factor in an appellate court's efficiency. Supreme court justices have significantly more staff support than court of appeal justices.
FN66. In 1991-92, the court granted review in 99 cases, granted and held in 56 cases, and granted and transferred in 24 cases. It denied review in 3,467 cases. 1 1993 Annual Report , supra note 13, at 13.
FN67. Id. at 13.
FN68. Prior to the 1991 rule change, the court automatically reviewed interim suspensions upon conviction of a crime involving moral turpitude and recommendations of suspension or disbarment. As a result of the rule change, the court will review interim suspensions only when:
(1) necessary to settle important questions of law; (2) the State Bar Court has acted without or in excess of jurisdiction; (3) petitioner did not receive a fair hearing; (4) the decision is not supported by the weight of the evidence; or (5) the recommended discipline is not appropriate in light of the record as a whole.
Cal. Ct. R. 954(a).
FN69. Cal. Const. art. VI, s 11; Cal. Penal Code s 1239(b) (Deering 1982).
FN70. Cal. Const. art. XII, s 5; Cal. Pub. Util. Code ss 1756, 1759 (West 1975 & Supp. 1993).
FN71. But see Justice Marcus M. Kaufman, California's Overloaded Supreme Court, L.A. Law. , Aug.-Sept. 1990, at 30, 59 ('Review of death penalty cases, though a part of the overall problem, is not nearly so burdensome as some have suggested ....').
FN72. 1 1993 Annual Report , supra note 13, at 7, 25.
FN73. Id. at 7.
FN74. Justices Field Questions at Annual Barristers Luncheon, The Recorder , Mar. 9, 1993, at 1 hereinafter Annual Barristers Luncheon.
FN75. The opinions for the 1991-92 year begin at People v. Daniels, 802 P.2d 907 (Cal. 1991), and end with People v. Price, 821 P.2d 610 (Cal. 1991), which finishes at page 713. The shortest capital opinion, People v. Fuentes, 818 P.2d 75 (Cal. 1991), was 15 pages, and the longest, People v. Price, 821 P.2d 610 (Cal. 1991), was 170 pages. The average length of a capital opinion is 64 pages.
FN76. Karl Llewellyn observed that litigated cases (especially appeals) bear the same relation to reality 'as does homicidal mania or sleeping sickness, to our normal life.' Karl N. Llewellyn , The Bramble Bush: On Our Law and Its Study 58 (2d ed. 1951). On the non-representativeness of litigated cases and their influence upon the decision-making process, see Kelso, supra note 55, at 777, 785; George L. Priest, Reexamining the Selection Hypothesis: Learning from Whittman's Mistakes, 14 J. Legal Stud. 215 (1985); Donald Whittman, Is the Selection of Cases for Trial Biased?, 14 J. Legal Stud. 185 (1985).
FN77. C. Elliot Kessler, Death and Harmlessness: Application of the Harmless Error Rule by the Bird and Lucas Courts in Death Penalty Cases-A Comparison & Critique, 26 U.S.F. L. Rev. 41, 84-90 (1991).
FN78. Scott G. Parker & David P. Hubbard, Comment, The Evidence for Death, 78 Cal. L. Rev. 973, 1006-26 (1990).
FN79. See, e.g., J. Clark Kelso & Brigitte A. Bass, The Victims' Bill of Rights: Where Did It Come From and How Much Did It Do?, 23 Pac. L.J. 843, 859-60 (1992) (discussing the struggles from 1972 and 1982 to enact the death penalty between California voters and legislators and the California Supreme Court, which struck the laws down as unconstitutional).
FN80. See, e.g., Stephen R. Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court, 26 Loy. L.A. L. Rev. 1033, 1036-37 (1993).
FN81. The additional burden on the court of appeal would have staffing implications, of course.
FN82. At present, the bottleneck in processing capital cases appears to be due to a lack of appellate counsel. As noted in the 1992 Annual Report, 'In death penalty cases, the court was nearly up to date in calendaring fully briefed cases during 1991. The backlog was worsened by lack of counsel for more than 60 inmates on death row.' 1992 Annual Report , supra note 9, at 4. Of course, one wonders what the Supreme Court would do if suddenly faced with 60 additional death penalty cases in any one year. Moreover, as Chief Justice Lucas recently noted, the death penalty is being imposed at the rate of about four per month. See Annual Barristers Luncheon, supra note 74, at 1. Is the supreme court prepared to both reduce its existing backlog of death penalty cases and handle 48 or more new death penalty appeals every year?
FN83. Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988), cert. denied, 493 U.S. 1051 (1990).
FN84. Telephone Interview with Christine May, Public Information Officer, California Department of Corrections (Jan. 27, 1994). This figure is correct as of January 1, 1994.
FN85. Annual Barristers Luncheon, supra note 74, at 1.
FN86. Cal. Const. art. XII, s 5; Cal. Pub. Util. Code ss 1756, 1759; see also County of Sonoma v. State Energy Resources Conservation & Dev. Comm'n, 708 P.2d 693, 697 (Cal. 1985) (stating that the California Supreme Court exercises exclusive jurisdiction over PUC matters).
FN87. There were seven PUC appeals in 1988-89, eleven in 1989-90, eight in 1990-91, and nine in 1991-92. 1 1993 Annual Report , supra note 13, at 10.
FN88. Select Committee on Internal Procedures of the Supreme Court, Report to Hon. Malcolm M. Lucas, Chief Justice of California 24-25 (1988).
FN90. A compromise position would continue requiring petitions for review to be filed with the supreme court but authorize the supreme court to transfer cases to the court of appeal. This procedure would be similar to the review process for Workers' Compensation Appeal Board decisions. See Cal. Labor Code s 5950 (West 1989); see also 2 B.E. Witkin , Summary of California Law, Workers' Compensation s 436 (9th ed. 1987) ('Although Labor Code Section 5950 provides that the application for writ of review may be made to 'the Supreme Court or to the court of appeal,' the Supreme Court, by minute order, transfers original petitions filed with it.'). In exceptionally important cases, the PUC could argue to the supreme court that it should not transfer the case. The supreme court would have the opportunity for a quick look at PUC decisions while retaining the flexibility to offload most cases to the court of appeal.
FN91. Filing a notice of appeal triggers the beginning of the appellate process in many, but not all, cases in California. California Penal Code s 1237.5 and California Rule of Court 31(d) authorize appeals following guilty pleas in criminal matters if the trial court issues a certificate of probable cause. As much as one-third of the court of appeal's criminal docket involves appeals after guilty pleas.
FN92. 1 1993 Annual Report , supra note 13, at 16 ('In both civil and criminal appeals, studies indicate that most case delay is beyond an appellate court's control. For example, appellate courts typically must wait a significant amount of time for the trial court record to be completed. After the record and briefs are filed, most Courts of Appeal decide cases quite promptly.... '). Arguably, the time it takes to prepare an appellate record should not be included in an evaluation of court of appeal efficiency because the court of appeal has little practical ability to control the speed of preparation. In a very real sense, the clock does not begin running for the court of appeal until the record and all briefs have been filed. Only then is the case ready for appellate court treatment. Notwithstanding this argument, virtually all commentators on the appellate process include preparation of the record as an appellate, and not a trial, concern. See, e.g., Daniel J. Meador, Appellate Case Management and Decisional Processes, 61 Va. L. Rev. 255, 257 (1975).
FN93. Cal. Ct. R. 4(d), 5(d).
FN94. The Honorable Carl West Anderson, Are the American Bar Association's Time Standards Relevant for California Courts of Appeal?, 27 U.S.F. L. Rev. 301, 312 (1993) (emphasis in original). Justice Anderson's article is vital reading for anyone concerned about appellate delay.
FN95. At present, the appellant can elect to file an appendix or joint appendix, Cal. Ct. R. 5.1, and the parties can jointly agree to file a superior court file or an agreed statement in lieu of the clerk's transcript, Cal. Ct. R. 5.2, 6.
FN96. Carrington et al. , supra note 7, at 27.
FN97. Id. at 27-29.
FN98. U.S. Const. amend. VI.
FN99. See ABA Comm. on Ethics and Professional Responsibility, Informal Op. 955 (1967) ('When a lawyer finds that a motion for a new trial or appeal would be wholly frivolous after a consciencions sic examination of the record, he should ... advise the court .... This is also the position a non-appointed sic lawyer should take. He, ethically, should not clog the courts with frivolous motions or appeals ....'); see also United States v. Edwards, 777 F.2d 364, 365 (7th Cir. 1985) ('A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court....').
FN100. McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988).
FN101. People v. Wende, 600 P.2d 1071 (Cal. 1979).
FN102. Id. at 1072.
FN103. Id. at 1074-75.
FN104. Id. at 1075.
FN106. In re Olsen, 221 Cal. Rptr. 772 (Ct. App. 1986).
FN107. In re Edward S., 183 Cal. Rptr. 773 (Ct. App. 1982).
FN108. In re Adrian O., 202 Cal. Rptr. 287, 290 (Ct. App. 1984); In re Joyleaf W., 198 Cal. Rptr. 114, 115 (Ct. App. 1984).
FN109. In re Brian B., 190 Cal. Rptr. 153, 154 (Ct. App. 1983); In re Jesse H., 178 Cal. Rptr. 205, 206 (Ct. App. 1981).
FN110. Conservatorship of Besoyan, 226 Cal. Rptr. 196 (Ct. App. 1986).
FN111. County of Madera v. Jacobson, 229 Cal. Rptr. 602 (Ct. App. 1987).
FN112. Anderson, supra note 94, at 339.
FN113. McCoy, 486 U.S. at 429.
FN114. 386 U.S. 738 (1967).
FN115. 895 F.2d 561, 562, appeal dismissed without op., 904 F.2d 41 (9th Cir. 1990).
FN116. See, e.g., Irving R. Kaufman, Reform for a System in Crisis: Alternative Dispute Resolution in the Federal Courts, 59 Fordham L. Rev. 1 (1990); Irving R. Kaufman, Must Every Appeal Run the Gamut? -- The Civil Appeals Management Plan, 95 Yale L.J. 755, 761 (1986); James B. Eaglin, The Pre-Argument Conference Program in the Sixth Circuit Court of Appeals: An Evaluation, Fed. Jud. Center (1990).
FN117. For a favorable review, see Wendy Cole Lascher, Appellate Settlements, L.A. Law. , Aug.-Sept. 1990, at 46.
FN118. These results were reported to the author by Professor Maurice Rosenberg of the Columbia University School of Law.
FN119. It also is doubtful that oral argument is useful in the vast majority of meritless (but not frivolous) appeals, yet counsel continue to insist upon oral argument in many of these cases.
FN120. 'A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision. ' Cal. Const. art. VI, s 19.
FN121. Anderson, supra note 94, at 342.
FN122. Moles v. Regents of Univ. of Cal., 187 Cal. Rptr. 557, 560 (Ct. App. 1982); People v. Brigham, 157 Cal. Rptr. 905, 907 (Ct. App. 1979).
FN123. Anderson, supra note 94, at 346-47.
FN124. Id. at 347.
FN125. Id. At present, both districts use relatively simple audio telephonic processes only. Although purely audio oral argument is unsatisfactory to many lawyers, who prefer to see all parties and activity, and especially the three justices, technology will soon permit full-motion, real-time, high-definition video. Ultimately, advances in telecommunication and the creation of 'virtual realities' will entirely replace actual presence. Virtual reality will be the next best thing to being there.
FN128. After several years of experience at the court of appeal level and evaluation and refinement of the necessary technologies, consideration could be given to permitting telearguments at the supreme court. Telearguments at the supreme court level present different issues because of the increased size of the court and the importance of the questions considered at that level.
FN129. See, e.g., Benjamin N. Cardozo , The Nature of the Judicial Process (1921); Edward H. Levi , An Introduction to Legal Reasoning (1949); Karl Llewellyn , The Common Law Tradition: Deciding Appeals (1960).
FN130. Pacific Legal Found. v. California Coastal Comm'n, 188 Cal. Rptr. 104, 111-13 (Ct. App. 1982).
FN131. See Neary v. Regents of Univ. of Cal., 834 P.2d 119, 124 (Cal. 1992) (emphasizing this paramount function -- 'the primary purpose of the public judiciary is 'to afford a forum for the settlement of litigable matters between disputing parties'' (quoting Vechi v. Sorensen, 310 P.2d 1020, 1021 (Cal. 1959))).
FN132. Cal. Const. art. VI, s 13.
FN133. See id.
FN134. The independent review standard overlaps somewhat with the abuse of discretion standard because a lower tribunal abuses its discretion when it makes an error of law.
FN135. 728 F.2d 1195, 1200-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).
FN136. 728 P.2d 180 (Cal. 1986).
FN137. Id. at 189-90.
FN138. Olson v. Cory, 673 P.2d 720, 728 (Cal. 1983).
FN139. Saldana v. Globe-Weis Sys. Co., 285 Cal. Rptr. 385, 388-90 (Ct. App. 1991) (Fifth District Court of Appeal). The Second and Third Districts have held that an abuse of discretion standard may apply to a trial court's decision on a motion for summary judgment. Dominigue v. Presley of S. Cal., 243 Cal. Rptr. 312, 313 (Ct. App. 1988) (Second District); Hoffman v. Citadel Gen. Assur., Ltd., 240 Cal. Rptr. 253, 256 (Ct. App. 1987) (Third District).
FN140. Winet v. Price, 6 Cal. Rptr. 2d 554, 557 (Ct. App. 1992).
FN141. For example, the issue of whether a duty of reasonable care has been breached is usually treated as a fact question for the jury. 6 B.E. Witkin, Summary of California Law, Torts s 749 (9th ed. 1987).
FN142. McConney, 728 F.2d at 1202 (citations omitted).
FN143. Scott v. Chevron U.S.A., Inc., 6 Cal. Rptr. 2d 810, 811 (Ct. App. 1992).
FN144. Id. at 812.
FN145. Alderson v. Alderson, 225 Cal. Rptr. 610, 618 (Ct. App. 1986) (quoting Crawford v. Southern Pac. Co., 45 P.2d 183, 184 (Cal. 1935)).
FN146. People v. Johnson, 606 P.2d 738, 750 (Cal. 1980).
FN147. Bowers v. Bernards, 197 Cal. Rptr. 925, 927 (Ct. App. 1984).
FN148. People v. Louis, 728 P.2d 180, 189 (Cal. 1986) (quoting United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984)).
FN149. In People v. Ceja, 6 Cal. Rptr. 2d 47 (Ct. App. 1992), rev'd, 847 P.2d 55 (Cal. 1993), the court of appeal held that there was no substantial evidence to support a finding that murder was committed by lying in wait, but that decision was reversed by the supreme court. In several cases, the court of appeal held that there was no substantial evidence to support an administrative agency's determination. In two of those cases, the trial court had already made the same determination. Newman v. State Personnel Bd., 12 Cal. Rptr. 2d 601, 605-06 (Ct. App. 1992); Los Angeles County Dep't of Parks & Recreation v. Civil Serv. Comm'n, 10 Cal. Rptr. 2d 150, 153-57 (Ct. App. 1992). In two other cases, the trial court had incorrectly held that substantial evidence existed. Sierra Club v. Contra Costa County, 13 Cal. Rptr. 2d 182, 189 (Ct. App. 1992); Martinez v. City of San Diego, 4 Cal. Rptr. 2d 753, 759 (Ct. App. 1992) (depublished). In People v. Williams, 841 P.2d 961 (Cal. 1992), the supreme court held there was no substantial evidence to warrant an instruction on the defense of mistaken belief of consent in a rape case.
FN150. See Cal. Ct. R. 976.
FN151. Under a 'no evidence' standard, any supporting evidence whatsoever in the record would be sufficient to uphold a lower court's factual findings. Under this approach, the appellate courts would still be able to exercise some control over a lower court's factual determinations, but appeals on that ground would be further deterred by the extremely deferential standard of review being applied.
FN152. See Ronald K.L. Collins & David M. Skover, Paratexts, 44 Stan. L. Rev. 509, 546-50 (1992).
FN153. Shamblin v. Brattain, 749 P.2d 339, 341 (Cal. 1988).
FN154. People v. Jordan, 721 P.2d 79, 83 (Cal. 1986); see 9 B.E. Witkin , California Procedure ss 275-277 (3d ed. 1985) hereinafter Witkin, California Procedure .
FN155. Denham v. Superior Ct., 468 P.2d 193, 197 (Cal. 1970).
FN156. 9 Witkin , California Procedure , supra note 154, s 276.
FN157. Cal. Const. art. VI, s 13, provides in full as follows:
No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
FN158. Cal. Evid. Code ss 353, 354 (West 1966).
FN159. Cal. Penal Code ss 1258, 1404 (West 1982).
FN160. Cal. Civ. Proc. Code s 475 (West 1979).
FN161. See, e.g., Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993); Arizona v. Fulminante, 499 U.S. 279, 295-302 (1991) (stating the general rule that constitutional error does not automatically require reversal of conviction and recognizing most constitutional errors can be harmful); Chapman v. California, 386 U.S. 18, 24 (1967) (holding that before a constitutional error can be harmful, the court must be able to declare its belief that the error was harmless beyond a reasonable doubt).
FN162. People v. St. Clair, 56 Cal. 406 (1880).
FN163. Roger Traynor , The Riddle of Harmless Error 3-4 (1970).
FN164. See, e.g., Pool v. City of Oakland, 728 P.2d 1163, 1173-74 (Cal. 1986) (stating that a miscarriage of justice should only be declared when the court has examined the entire case and believes it is reasonably probable that a result more favorable to appellant would have been reached in the absence of error).
FN165. The appeal is 'useless' in the sense that, although an error has occurred, the appellant gets no significant relief. Yet, the appellant is still encouraged to file the appeal because an error actually did occur.
FN166. Somewhat cynically, but perhaps accurately, the harmless error doctrine has been described by some as the judiciary's version of 'close is good enough for government work.' Cf. Nasir v. Sacramento County Office of the Dist. Attorney, 15 Cal. Rptr. 2d 694, 700 (Ct. App. 1992) (denying order to repossess when district attorney filed an incomplete notice of repossession).
FN167. Willis L.M. Reese, Book Review, 71 Colum. L. Rev. 527, 527-28 (1971) (reviewing Traynor , supra note 163).
FN168. 824 P.2d 1315 (Cal.), cert. denied, 113 S. Ct. 383 (1992).
FN169. Id. at 1339.
FN173. Id. at 1342.
FN174. Id. (citations omitted).
FN175. More than 90% of all appellate court opinions are unpublished. 1 1993 Annual Report , supra note 13, at 31. Thus, the overwhelming bulk of appellate analysis of trial court error goes unknown and largely unknowable by the bar at large and by the public.
FN176. This goal could be accomplished doctrinally by declaring the error to be harmful, but applying that decision prospectively only.
FN177. 8 Witkin , California Procedure , supra note 154, s 250.
FN178. Stauffer Chemical Co. v. Air Resources Bd., 180 Cal. Rptr. 550, 553- 54 (Ct. App. 1982) (citing California Hotel & Motel Assoc. v. International Welfare Comm'n, 599 P.2d 31, 38 (Cal. 1979)).
FN179. Cal. Civ. Proc. Code s 1094.5(b) (West Supp. 1993). As Witkin explains, trial courts sometimes use an 'independent judgment' rule, Witkin, California Procedure , supra note 154, s 254, and sometimes use a 'substantial evidence' rule to review factual determinations, id. s 255. The choice, made on a case-by-case basis, depends upon the type of agency, the statute that authorizes review, and whether the petitioner asserts the agency action invades vested rights. Id. ss 256-258.
FN180. See, e.g., Thornton v. Carlson, 6 Cal. Rptr. 2d 375, 379 (Ct. App. 1992).
FN181. But see California Hotel & Motel Assoc., 599 P.2d at 38-39 n.30 ('The precise formulation of the standard may be less important than what courts actually do in exercising deferential but not perfunctory review.').
FN182. Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n.14 (1982) (quoting United States v. United States Gypsum, 333 U.S. 364, 395 (1948)).
FN183. Fed R. Civ. P. 52(a).
FN184. U.S. Const. amend. IV.
FN185. People v. Mickey, 818 P.2d 84, 98 (Cal. 1991), cert. denied, 113 S. Ct. 65 (1992).
FN186. Notably, the 'clearly erroneous' standard is used by federal appellate courts only to review findings of fact made by the trial judge, not by the jury. Fed. R. Civ. P. 52(a). Given the requirement that a trial judge render an opinion explicitly containing findings of fact, id., there is reason to believe that an appellate court is in a better position to review a trial judge's fact findings than a jury's fact findings, which are unsupported by a written opinion.
FN187. Cal. Civ. Proc. Code s 1286.2 (West 1982); see also Cal. Ct. R. 1615(d).
FN188. Cal. Civ. Proc. Code s 1286.6 (West 1982).
FN189. 832 P.2d 899 (Cal. 1992).
FN190. Id. at 916.
FN191. Cal. Civ. Proc. Code ss 1141.10, 1141.13, 1141.15 (West 1982 & Supp. 1993). For the differences between mandatory judicial arbitration and private arbitration, see Blanton v. Womancare, Inc., 696 P.2d 645, 648-49 & n.5 (Cal. 1985).
FN192. Cal. Civ. Proc. Code s 1141.20 (West Supp. 1993).
FN193. Cal. Civ. Proc. Code s 1141.21(a) (West Supp. 1993).
FN194. 6 Witkin , California Procedure , supra note 154, s 318 (quoting The Council's Mandatory Arbitration Rule Advisory Committee, Judicial Council Report 5 (1984)).
FN195. Carrington et al. , supra note 7, at 29.
FN196. See James Evans, Bulletin Boards Minus Pushpins, S.F. Daily J. , Dec. 10, 1993, at 1. Anyone interested in registering may obtain the forms from the Administrative Office of the Courts.
FN197. Randall Kelso & Sonia M. Pawluc, Focus on Cameras in the Courtroom: The Florida Experience, the California Experiment, and the Pending Decision in Chandler v. Florida, 12 Pac. L.J. 1, 7-9 (1980).
FN198. Cal. Ct. R. 980.
FN199. 723 P.2d 1354 (Cal.), cert. denied, 458 U.S. 1125, 459 U.S. 860 (1982).
FN200. 816 P.2d 1309 (Cal. 1991), cert. denied, 112 S. Ct. 1292 (1992).
FN201. See, e.g., State Bd. of Educ. v. Honig, 16 Cal. Rptr. 2d 727 (Ct. App. 1993).
FN202. Coffin , supra note 4, at 57.
FN203. See Cal. Ct. R. 976(a)-(b).
FN204. Cal. Const. art. VI, s 14.
FN205. See Cal. Ct. R. 976(b).
FN206. 1 1993 Annual Report , supra note 13, at 31.
FN207. Judicial Council of California , 1985 Annual Report 101 (1986).
FN208. Cal. Ct. R. 976(b).
FN209. Cal. Ct. R. 976(c).
FN210. Cal. Ct. R. 978, 979.
FN211. Cal. Ct. R. 977(a). For a discussion of some of the reasons why the noncitation rule was adopted, see Robert A. Seligson & John S. Warnloff, The Use of Unreported Cases in California, 24 Hastings L.J. 37 (1972).
FN212. Cal. Ct. R. 977(b).
FN213. Carrington et al. , supra note 7, at 39.
FN214. Id. at 38; James N. Gardner, Ninth Circuit's Unpublished Opinions: Denial of Equal Justice?, 61 A.B.A. J. 1224 (1975).
FN215. Carrington et al. , supra note 7, at 36.
FN216. Gerald F. Uelmen, Depublication, L.A. Law. , Aug.-Sept. 1990, at 49, 51.
FN217. Carrington et al. , supra note 7, at 35; Jack Leavitt, The Yearly Two Foot Shelf: Suggestions for Changing Our Reviewing Court Procedure, 4 Pac. L.J. 1, 3 (1973).
FN218. Carrington et al. , supra note 7, at 39-41. The authors suggest that memorandum opinions should be published 'in a different fashion and in a separate set of books from the reports that contain the full opinions.' Id. at 40. Witkin provides useful chapters on how to write a good (and short) memorandum opinion. Witkin , Manual on Appellate Court Opinions , supra note 36, chs. IX-X.
FN219. Joseph R. Grodin, The Depublication Practice of the California Supreme Court, 72 Cal. L. Rev. 514, 514-15 (1984).
FN220. See, e.g., Robert Gerstein, Law By Elimination: Depublication in the California Supreme Court, 67 Judicature 293, 298 (1984); Philip Carrizosa, Making the Law Disappear, Cal. Law. , Sept. 1989, at 65-66; Lisa Stansky, Depublication: Law Made By Eraser, The Recorder , Jan. 9, 1990, at 2-3; Gerald F. Uelmen, Mainstream Justice: A Review of the Second Year of the Lucas Court, Cal. Law. , July 1989, at 37, 40.
FN221. Kent L. Richland, Depublication, 13 L.A. Law. , Aug.-Sept. 1990, at 48, 50.
FN222. Cal. Ct. R. 977(a).
FN223. Grodin, supra note 219, at 522.
FN224. Id. at 524-25.
FN225. But see Arcadia Unified Sch. Dist. v. State Dep't of Educ., 825 P.2d 438 (Cal. 1992), in which depublication of a prior court of appeal decision involving the California Department of Education resulted in confusion as to the constitutionality of California Education Code s 39807.5 and required the court to expand the 'public policy' exception to rules of finality.
FN226. The California Constitution provides that 'decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.' Cal. Const. art. VI, s 14. Professor Stephen R. Barnett fleshes out this provision and also contends that depublication orders are an unconstitutional exercise of non-judicial power. Barnett, supra note 80. His article is accompanied by a number of other articles devoted to depublication, including Dean Uelmen's most recent attack on the practice. Gerald F. Uelmen, Publication and Depublication of California Court of Appeal Opinions: Is the Eraser Mightier than the Pencil?, 26 Loy. L.A. L. Rev. 1007 (1993).
FN227. As a practical matter, an order of depublication is also treated by the bar as having more precedential significance than a mere denial of review, Barnett, supra note 80, at 1050-52, an entirely reasonable treatment in light of the fact that depublication apparently reflects the supreme court's judgment that something in the opinion was wrong.
California Rule of Court 979(e) now provides that 'an order of the Supreme Court directing depublication of an opinion in the Official Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.' Cal. Ct. R. 979(e). This rule simply is not credible. The only sensible rationale for taking the time to depublish is because something was wrong with the opinion. Rule 979(e) simply reinforces all of the objections to the depublication practice.
FN228. Technically, article VI, s 14 applies only to decisions in 'causes,' Cal. Const. art. VI, s 14, which has generally been interpreted as applying only to decisions on the merits. 9 Witkin , California Procedure , supra note 154, s 554. In a depublication case, the court denies the petition for review, so the decision would appear not to be a 'cause.' On the other hand, the court arguably must have exercised enough jurisdiction to depublish the offending opinion, and if it exercised such jurisdiction, why is a depublication decision not a decision of a 'cause'?
FN229. Richland, supra note 221, at 53.
FN230. Gerald F. Uelmen, Waiting for Thunderclaps, Cal. Law. , June 1993, at 29.
FN231. Cal. Gov't Code s 68073 (West Supp. 1993).
FN232. In Mandel v. Myers, 629 P.2d 935, 940 (Cal. 1981), the California Supreme Court very carefully avoided holding that it lacked power to order appropriations in all circumstances. Rather, the court noted only that the decisions in State Bd. of Educ. v. Levit, 343 P.2d 8 (Cal. 1959), and United States v. Lovett, 328 U.S. 303 (1946), 'clearly demonstrate that while the separation of powers doctrine may restrict a court from directly ordering the Legislature to enact an appropriation law, the doctrine does not preclude the judiciary from decreeing that funds that have been appropriated by the Legislature should be paid without regard to an improper or invalid legislative restriction.' Mandel, 629 P.2d at 941 (emphasis added). The clear implication is that although Levit and Lovett 'may' restrict the judiciary's power to order an appropriation, the court is leaving that issue open for further consideration.
FN233. Missouri v. Jenkins, 495 U.S. 33, 55-58 (1990).
FN234. See Judge Wachtler Files His Suit To Get Courts More Money, N.Y. Times , Sept. 27, 1991, at B3.
FN235. Cal. Const. art. VI, s 6. Trial-level judges fill 10 out of the Council's 21 seats.
FN236. An Appellate and Trial Courts Coordinating Council could consist of thirteen members: two representatives each from the six Administrative Presiding Judges and clerk-administrators of the Court of Appeal; two representatives each from the Appellate, Trial Court Presiding Judges, Trial Court clerk-administrators, and Rules and Forms committees of the Judicial Council; and a representative from the Center for Judicial Education and Research. See infra Figure 2. In addition to the typical staffing for such an entity, the Coordinating Council should be associated with a law school and university to insure that a rich mix of criticism, research, and new ideas are always part of its evolving agenda. The Coordinating Council would have as its primary charge developing and implementing procedures to reduce trial court error.
FN237. Telephone Interview with Third Appellate District Clerk of Court (Dec. 14, 1993) (based on 1991 internal study).
FN238. See infra Figure 3.
FN239. The Trial Court Plea-Disposition Continuum would be an ongoing consideration for the Appellate and Trial Courts Coordinating Council.
FN240. The same digests and educational materials should be made available to other interested agencies within the government, and perhaps to the public as well. For example, local police departments and other governmental investigatory agencies have a great need to know about developments in criminal law, particularly regarding search and seizure rules, to be able to adjust policy and practice accordingly. There is no reason in principle why the CJER should not assume a much more central role in educating not only judges, but other government officials as well, about developments in the law.
FN241. See, e.g., James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997 (1992); Kathleen Patchel, The New Habeas, 42 Hastings L.J. 939 (1991); Herbert Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59 Colo. L. Rev. 167 (1988).
FN242. See, e.g., Victoria Slind-Flor, 9th Circuit's Theme: Federalism, Nat'l L.J. , Aug. 30, 1993, at 32 (reporting on Ninth Circuit's annual meeting).
FN243. NAFTA Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993).
FN244. Treaty establishing the European Economic Community, Mar. 25, 1957, 1988 G. Brit. T.S. No. 49 (Cmd. 455) 82 (original version at 298 U.N.T.S. 11).
FN245. Belgium-Denmark-France-Federal Republic of Germany-Greece-Ireland-Italy- Luxembourg-Netherlands-Portugal-Spain-United Kingdom Treaty on European Union and Final Act, Feb. 7, 1992, 31 I.L.M. 247 (1992).
FN246. See generally Frederick M. Abbott, Integration Without Institutions: The NAFTA Mutation of the EC Model and the Future of the GATT Regime, 40 Am. J. Comp. L. 917 (1992) (arguing that NAFTA may evolve toward the current European Community structure as implementation problems arise).
FN247. David G. Badertscher, Appellate Court Library Standards -- An Overview, State Ct. J. , Winter 1989, at 33.
FN248. Harry S. Martin III, From Ownership to Access: Standards of Quality for the Law Library of Tomorrow, Law Libr. J. , Winter 1990, at 129, 143-44.
FN249. See Douglas M. Costle & Carl A. Yirka, The Law Library of Congress as a National Law Library, Law Libr. J. , Spring 1991, at 219; Richard A. Danner, The Law Library of Congress and the Legal Profession, Law Libr. J. , Spring 1991, at 211; M. Kathleen Price, Building a National Law Library to Serve the World Legal Community, Law Libr. J. , Spring 1991, at 225.
FN250. See William Twining, Preparing Lawyers for the Twenty-First Century, 3 Legal Educ. Rev. 1 (1992). But see Monroe Freedman, Law in the 21st Century, 60 Fordham L. Rev. 503 (1991).
FN251. Among other innovations, closed-circuit interactive telecommunications will permit rural judges to view programs they are now rarely able to attend, and the annual Judicial College will be similarly accessible, as will more esoteric and cerebral programs, including those on jurisprudence.
FN252. See Jim Meyer, The Paperless Chase, A.B.A. J. , June 1993, at 94; Ronald Staudt, Does Grandmother Come With It? Teaching and Practicing Law in the 21st Century (June 2, 1993) (white paper delivered at the National Institute on the Profession of Law in the 21st Century, Case Western Reserve University College of Law) (on file with author).
FN253. See, e.g., William T. Braithwaite, How Is Technology Affecting the Practice and Profession of Law?, 22 Texas Tech. L. Rev. 1113 (1991); Michael France, Multimedia General Counsel Awaits a Revolution That Will Be Televised, S.F. Daily J. , July 15, 1993, at 1; George Nicholson, Judges, Technology and the Future, Ct. Rev. , Spring 1990, at 5; Bob Weibel, Information, Please, Books vs. CD vs. Online: Which Way Should You Go When Your Fingers Do the Walking?, Cal. Law. , July 1993, at 39.
FN254. See Book Published Via Computer Will Never Reach Final Edition, Investor's Daily , Mar. 10, 1988, at 1.
FN255. Webster, Judicial Education Software Design Project Completed, Ct. Tech. Bull. , May-June 1993, at 6.
FN256. Making local police officers immediately aware of appellate decisions has other important consequences. For example, police morale can be boosted by publicly communicating appellate decisions that affirm the conduct of specific police officers. Likewise, police performance can be improved by quickly and specifically identifying those practices that are disaffirmed by appellate courts.
FN257. Roscoe Pound , Organization of Courts (1940).
FN258. See, e.g., Judith S. Kaye, One Judge's View of Academic Law Review Writing, 39 J. Legal Educ. 313 (1989); Kenneth Lasson, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926 (1990).
FN259. See ABA Section of Legal Education and Admissions to the Bar , Legal Education and Professional Development -- An Education Continuum (1992).
FN260. Robert MacCrate was chair of the task force which produced the report.
FN261. ABA Section of Legal Education and Admissions to the Bar , A Dialogue About Legal Education As It Approaches the 21st Century 6 (J. Clark Kelso ed. 1987) (quoting Judge Wallace) (emphasis added).
FN262. See 2020 Vision: A Plan for the Future of California Courts, 66 S. Cal. L. Rev. 1751 (1993).
FN263. It is possible that an appellate judge could simply highlight a case citation or record citation, press a button, and have the record of that cited case immediately appear on the screen.
FN264. Martin, supra note 248, at 141.
FN265. Elizabeth Ellers, Survey the Future, 66 S. Cal. L. Rev. 2183, 2189 (1993).
FN266. Id. at 2184-85.
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