Previously, Court Watch referenced the
local rules of the Marin County Superior Court
and endorsed the efficient practice of issuing tentative rulings a day
or more before oral argument on pretrial motions. Such use of tentative
rulings is widespread in California and, on balance, is very helpful
and effective in focusing the subsequent oral argument.
One federal district court judge in Hawai`i already employs a variation
of tentative rulings in her Court. Judge Susan Mollway has, for some
time, published her inclinations on the Internet (at the District Court
the day before the hearing.
The inclinations are prefaced with an explanation:
It is Judge Mollway's practice, whenever possible, to notify attorneys
and pro se parties scheduled to argue motions before her of her
inclinations on the motions and the reasons for the inclinations. This is
part of Judge Mollway's normal practice, rather than a procedure unique
to a particular case, and is designed to help the advocates prepare for
It is the judge's hope that the advance notice of her inclination and
the accompanying reasons will focus the oral argument and permit the
advocates to use the hearing to show the judge why she is mistaken or why
she is correct. The judge is not bound by the inclination and sometimes
departs from the inclination in light of oral argument.
Judge Mollway attempts to communicate her inclinations no later than one
working day before a hearing. If your case is not mentioned on the
webpage when you check it, please check again later to see whether the
webpage has been updated to include the inclination in your case.
The inclination is intended to be only a summary of the court's thinking
before the hearing and not a complete legal discussion. The court will
issue a written order with a detailed analysis after the hearing.
The parties are reminded that, under Local Rule 7.4, they may not submit
supplemental briefs (such as briefs addressing the inclination) unless
authorized by the court. The parties are also reminded that they must
comply with Local Rule 7.8.
A tentative ruling allows the attorneys to address what the judge
believes are the important issues. It forces them to face reality.
It also helps the clients, who are paying the bills, decide whether
it's worth paying an attorney to appear in court and try to change the
Remember, tentative rulings need to be reasoned decisions. The
judge doesn't just tentatively grant or deny a motion before a hearing;
the judge also explains the basis for the tentative ruling. The judge
has to read the memoranda, understand the memoranda, and then make a
tentative decision. The lazy judge won't like doing it. The permanently
confused judge won't like doing it. Better for these judges to "work in
mysterious ways" that hide their shortcomings.
Most judges fall in neither category, but they may react against a
tentative ruling system because it is not a "traditional" system in
Hawaii. Moreover, some of the memoranda are very badly written. Even a
good judge may prefer not to analyze a garbled memorandum.
Fortunately, they don't have to. If a memorandum is truly hard to
follow, the tentative ruling can find it unpersuasive for that reason
and rule accordingly. The advocate then has a chance to clarify his or
her position at oral argument--and knows that it's necessary.
The Circuit Court judges should seriously discuss the use of tentative
rulings amongst themselves or simply start pilot programs in their own
respective courtrooms. Among other things, it would shorten their motion