This edition of the Sacramento Lawyer, focusing on appellate practice, provides the perfect opportunity to inform our legal community about the forthcoming reinstatement of a settlement program at the Court of Appeal, Third Appellate District.

In November 1974, the court, under the innovative leadership of former Presiding Justice Robert Puglia, instituted one of the first appellate settlement programs in the United States, with justices conducting non-mandatory settlement conferences in civil appeals. In 1977, the court promulgated local rules governing the settlement conferences. Over the next few years, the procedures evolved. The appellant would file a settlement conference statement, containing general information about the appeal as well as a concise statement of the case and a list of issues to be raised on appeal. A justice would then determine whether to schedule the matter for mandatory settlement conference. If so, preparation of the appellate record and the filing of briefs were suspended until the completion of settlement negotiations. The settlement conference was conducted by a justice or a retired justice. If the court did not mandate a settlement conference, any party could request one.

Initially, the program met with great success, with the court settling a high of 168 civil appeals in 1980. However, due largely to the justices' workload and resulting inability to devote enough time to the program, the success rate dropped dramatically, to a low of five settlements in 1994. In November 1994, the court suspended the program after determining that the cost in judicial and clerical resources outweighed the benefit derived from the program.

In 2000, with the thought of reducing the cost of appellate litigation and helping to manage the court's calendar, I appointed justices and local attorneys to a "Special Committee of Settlement Conference Procedures," chaired by Associate Justice Rick Sims. After analyzing existing appellate settlement and mediation programs in other jurisdictions, the committee concluded that a settlement program in the Third Appellate District, limited to certain civil cases, would be beneficial both in reducing appellate costs for many litigants and in managing the court's caseload. The committee determined that the most successful appellate settlement conference programs use volunteer attorneys and retired judges as mediators, the best models of which are the programs of the First Appellate District and Division Two of the Fourth Appellate District.

Justices of the Third Appellate District adopted the committee's recommendations and sought funding from the Judicial Council for the administration of the program and for training of volunteer mediators. Fortunately, after initial setbacks due to the State's budget problems, the court has obtained the requisite funding, commencing in January 2006.

The court is now engaged in finalizing the many details involved in initiating an appellate settlement conference program, from the hiring of staff to administer the program, to obtaining office space to house the program, to contracting for the provision of mediator training, to developing a process for recruiting volunteer attorney and retired judge mediators.

At this point, what we visualize is a settlement program in which the appellant in a civil appeal will file a somewhat extensive settlement conference statement that will be reviewed by the court. If the appeal is deemed an appropriate candidate for a settlement conference, the court will stay preparation of the appellate record and refer the case to the administrator of the mediation program, who will assign the appeal to a volunteer attorney or retired judge mediator and schedule the mandatory mediation. If the court does not select a case for mandatory mediation, there will be a process for the parties to obtain a mediation by stipulation. Further details of the program remain to be resolved.

Of course, the appellate settlement conference program cannot be a success without the assistance of volunteer attorney mediators. Thus, I hope members of the Sacramento County Bar Association will express interest in serving as mediators. Aside from the benefits that will inure to parties and the court when appeals are settled, it would seem that the mediation training, at the court's expense, received by lawyers who volunteer and serve as settlement program mediators undoubtedly will be beneficial to their practice of law.

I am confident that many litigants will take advantage of, and ben- efit from, the forthcoming appellate settlement program in the Court of Appeal, Third Appellate District. On behalf of the court, I publicly thank the attorneys -- Steven Block, Barbara Christensen, Jay-Allen Eisen, David Hall, and Charity Kenyon -- and the justices who provided their invaluable advice and recommendations as members of the Special Committee of Settlement Conference Procedures.

January / February 2006