United States: The State Of The California Appellate Courts And What It Means For Advocates

By: Heather U. Guerena and Theresa Langschultz

On April 17, the San Diego County Bar Association presented "The State of the Appellate Courts: A Joint Address," featuring Administrative Presiding Justice Judith McConnell of the California Court of Appeal, Fourth Appellate District, and Circuit Judge M. Margaret McKeown of the Ninth Circuit Court of Appeals. Justice McConnell and Judge McKeown discussed multiple issues, but focused on: (1) the heavy workload in the Courts, and (2) the Courts' work to foster civic education.

The California Court of Appeal, Fourth Appellate District and the Ninth Circuit Both Face Heavy Workloads.

Justice McConnell and Judge McKeown emphasized the California appellate courts face heavy workloads; however, the number of appeals filed in 2016 was less than 2015. The California Court of Appeal, Fourth Appellate District has three divisions: San Diego, Riverside, and Santa Ana. In 2016, The Fourth District received 1578 civil appeals, 1509 criminal appeals, and 682 dependency appeals. Of these three divisions, Riverside has the heaviest workload.

Judge McKeown noted the Ninth Circuit still handles far more cases than any other federal appeals court. As of December 31, 2016, the Ninth Circuit had 11,405 filed cases, 11,866 terminated cases, and 13,152 pending cases. By comparison, the First Circuit had just 1,573 filed cases, 1,443 terminated cases, and 1,482 pending cases, and the Fifth Circuit had 8,470 filed cases, 8,092 terminated cases, and 5,252 pending cases.

Where do the Ninth Circuit's appeals come from? Interestingly, the greatest number of appeals come from the Central District of California, with approximately 1800 appeals per yet. Less than 500 appeals per year come from the Southern District of California. Of these appeals, a little less than half of them are filed by prisoners in civil rights cases.

Advocates should keep the heavy workloads of the Appellate Courts in mind to enhance their advocacy. While advocates may devote their undivided attention on a single case, the myriad of cases before the Courts means that they must address many cases at once. High workloads, especially in heavy filing districts, underscore the need for focused, concise briefs, which are tailored to the party's issues. Each argument should be focused, and written in terms of the standard of review.

The Work to Foster Civic Education.

In addition to their heavy workloads, both the California Court of Appeal, Fourth Appellate District and the Ninth Circuit foster civic education.

Justice McConnell highlighted the importance of civic education to educate the public regarding the work of the Courts. This issue is especially important as the Legislature continues to give mandatory statutory preference to certain types of appeals by giving them expedited review, or implicitly giving trial-setting preference to certain types of actions. Expedited review may sound good in theory; however, the feasibility of such review can be difficult when there are judicial vacancies and a high volume of filings. It is imperative that our legislature and the general public understand the practicalities of drafting and reviewing an appeal properly.

Judge McKeown discussed the work of the Ninth Circuit in creating the Justice Anthony M. Kennedy Library and Learning Center. The Center is a hub of the federal judiciary's civic education efforts. Just last month, the Center unveiled an online website: http://www.ca9.uscourts.gov/klc/. The new website provides a plethora of information about the Center's educational programs for teachers and students and exhibits related to law and government.

In addition to the Justice Kennedy Library and Learning Center, the Ninth Circuit fosters civic education through public access. Every argument in the Ninth Circuit is live-streamed via the Court's website, available at: https://www.ca9.uscourts.gov/media/live_oral_arguments.php. C-SPAN has been given access to broadcast the oral argument in cases which, due to their popularity, may have high viewership which could overload the Court's website. For instance, in February's oral argument in Washington and Minnesota v. Trump, C-SPAN broadcasted the oral argument live (C-SPAN has since preserved the oral argument at https://www.c-span.org/video/?423694-1/washington-minnesota-v-trump-oral-argument). Over 1.5 million people listened to the oral argument, confirming the importance of civic education and public access.

The Courts agree that access to appellate oral arguments is both an important civic education initiative and a useful tool for advocates. Novice practitioners can gain experience through live-streaming oral argument, while more seasoned advocates can follow cases which may affect their appeals.

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