45 HSTLJ 433

(Cite as: 45 Hastings L.J. 433)

Hastings Law Journal

March 1994

Special Report on California Appellate Justice

*433 A REPORT ON THE CALIFORNIA APPELLATE SYSTEM [FNd]

By J. Clark Kelso [FNa]

Introduction

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.

Figure 1

*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;

(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

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 argum