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Thursday, December 04, 2003

Let's Talk

Appellate litigants and practitioners in California tend to be big fans of the fact the Fourth District, Division 2 of the state's Court of Appeal issues tentative opinions. Attorney Dan Mrotek and his client Jose Guadalupe Reyes Pena were less pleased though with the notice (PDF) the court sends when it feels oral argument in a case to be unnecessary. Among other things, the notice invites parties and counsel to waive oral argument, advises the court has determined that "oral argument will not aid the decision-making process," and warns that sanctions may be imposed if counsel repeats any of the arguments included in the briefs. Mr. Mrotek and his client initiated an appeal that resulted in the California Supreme Court considering the following issue at oral argument yesterday: "Does the standard oral argument waiver notice used by the Court of Appeal, Fourth District, Division Two, improperly infringe upon a defendant's right to oral argument?"

According to reports from various legal news sources (none readily linkable, I'm afraid), the Justices left little doubt that their answer to this question will be "Yes." My colleagues Jim Martin and Ben Shatz worked on two amicus briefs (an initial brief, and a supplemental one; both PDFs) in this case, submitted on behalf of the California Academy of Appellate Lawyers. Jim, the Academy's President, is quoted in a Daily Journal article of today's date: "Even if oral argument notices stop short of actively encouraging a litigant's 'day in court,' they should not denigrate the value of oral argument, expressly or by implication. The notice at issue here . . . crosses that line."

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