Abstract

This Note considers the primary arguments that have been made for and against issuing draft opinions prior to oral argument. Part II describes the historic and evolving role of oral argument in U.S. appellate procedure. Part III explores the purposes and justifications for oral argument, as described by practitioners, judges, and scholars. Part IV describes the procedure of disseminating draft opinions followed by the Arizona Court of Appeals, Division Two. Part V describes the tentative opinions procedure used in the California Court of Appeal, Fourth Appellate District, Division Two, and discusses a recent decision by the California Supreme Court approving of the state appellate court's distribution of tentative opinions before argument, but finding that the cover letter and oral argument waiver notice mailed with the tentative opinions might have improperly discouraged litigants from requesting oral argument. Part VI discusses the benefits and drawbacks of using draft opinions from the perspective of judges on the Arizona Court of Appeals, Division Two. Part VII describes the findings of two studies comparing draft to final decisions in the California and Arizona state courts of appeal.

In conclusion, Part VIII argues that draft dissemination furthers the purposes underlying oral argument, including the promotion of judicial transparency and accountability, while also improving the quality of both oral arguments and judicial decisions. Providing the parties with a proposed draft decision before argument is consistent with the evolved role that oral argument plays in modem appellate process. Once a leisurely judicial introduction to a case, oral argument today is a lively, timed event, where judges armed with knowledge and questions about the case come to hear-and interrogate-counsel. Distributing drafts to the parties beforehand can help both lawyers and judges make better use of the limited time available for oral argument on appeal.

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