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Hawai'i trial attorneys and appellate court attorneys

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Tuesday, December 20, 2005

"Tentative Rulings" and "Inclinations" of the Court

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 web site's judge section) 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 oral argument.

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 judge's mind.

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 calendars.

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