“You Know It When You See It”: Justice Thompson (Ret.) on Writ Relief and Judicial Philosophy

Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and he tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

• On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)
• On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.
• On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.
• On doomed appellate strategies: Rearguing the same theory that lost at trial.
• On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.
• On oral argument: Never waive. At least show up and offer to answer questions.

Justice David A. Thompson (Ret.)’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

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Other items discussed in the episode:

• Court of Appeal press release on Justice Thompson’s retirement.
• Huerta v. Santa Ana, in which Justice Thompson dissented from an opinion affirming a summary judgment that no reasonable juror could find a dangerous condition that resulted in the tragic deaths of three girls on Halloween night.