Hon. Thomas Willhite (Ret.): I think I'm a bump on a log. You know, I'm not a potted plant, so I'd like to ask a few questions anyway.

Jeff Lewis: Welcome, everyone. I am Jeff Lewis

Tim Kowal: And I'm Tim Kowal. Today, we are honored to be joined by former Second District Court of Appeal Justice Thomas Willhite Jr. Justice Willhite is a former associate justice of the California Court of Appeal of the Second District Division Four, where he served from 2005 to 2023, where he authored approximately 2,000 opinions across virtually every area of California civil law. Before his appellate appointment, he spent 10 years as a supervising deputy attorney general, coordinating death penalty appeals for four Southern California counties, and then presided over the Los Angeles Municipal Court and Superior Court. He's now a mediator, arbitrator, and appellate consultant with ADR Services. Justice Willhite is fluent in Italian and has lectured at Italian law schools on comparative law and spoke to the anti-mafia organization Libera in Genoa on organized crime in Los Angeles. Attorneys describe Justice Willhite as warm, direct, intellectually rigorous, and disarmingly funny, and hopefully not easily offended by Jeff's and my questions today. Justice Willhite, thank you so much for joining us today.

Hon. Thomas Willhite (Ret.): Oh, thank you, Jeff and Tim. It's a pleasure. I've been looking forward to it.

Tim Kowal: Well, Justice Willhite, you've sat at every level of California court, plus along with a decade in the AG's office. Does that feel to you like one career or several careers all rolled into one?

Hon. Thomas Willhite (Ret.): It's really several careers rolled all into one, but they've all been interrelated in that the skills one learns at one level can apply and help at the additional level. Certainly, my time as an AG doing primarily appeals allowed me to review hundreds of trial transcripts, so that when I got to the trial court, despite having tried one case in my life, I knew intuitively whenever something came up, I'd say, "Oh, I think I know the answer to this," or "I think I know what to do." So that certainly helped. And then all the way through the judicial career, municipal court, period court, appellate court, those are the skills that one learns at each level that really have an impact on the next. So it's all interrelated, three different careers potentially.

Tim Kowal: You started your career in the AG's office doing a lot of capital cases. What was how does that inform your approach to appeals generally? Obviously, at some point you transitioned into doing a lot of civil appeals, and as I said in the intro, you did 2000 opinions, and eventually you touched on just about every aspect of civil law, and yet you started in the AG's criminal department.

Hon. Thomas Willhite (Ret.): Well, and it wasn't so much the capital case milieu that shaped my view. It was the real challenge of reviewing lengthy briefs. And in the time when I was doing capital cases, it was kind of the wild west in terms of constitutional issues. Very interesting constitutional issues, a lot of issues up in the air. So the briefs tended to be very long, and I would have to read them and write my own. And so it kind of inculcated a sense of, you've got to get the details right. The details matter, and of course these were briefs that went directly to the Supreme Court. So you certainly wanted to put your best foot forward because you'd have to go up there and defend the minority argument. So, really think that in general, my appellate practice, as I mentioned earlier, helped prepare me for the trial court, but also helped me learn the importance of knowing the law, knowing the record, being accurate, and then being able to defend whatever arguments you make, or as a trial judge, frankly, being able to defend any decision you make, so all of that every day.

Tim Kowal: Did that experience being the capital case coordinator for several Southern California counties leave you with a heightened sense of gravity and responsibility in what you were doing in your work? Certainly, when you were the capital case coordinator and handling the capital cases, but when you moved over into the civil practice and handling civil appeals, does the gravity of the cases hit differently depending on the nature of the case and the consequences or remedy involved?

Hon. Thomas Willhite (Ret.): Well, I would say I did a lot of criminal trials too as a trial judge, and the issue-if you talk about one issue that's an issue in criminal cases-it's somebody's liberty. It's the right to be free-and in most civil cases, it's an economic motive behind the case. Not all, but some-and so there is certainly an urgency in the in the criminal case, and this and the due process rights are a bit more stringent in the criminal case than the civil case. But in terms of the way the judge or I, as a judge, approach. I would take the same care as I would in a criminal case or civil case, understanding that the outcome and the stakes in the outcome are oftentimes a bit a bit different. In civil cases, you're not talking about individual liberty; you're talking about business or economic-related concerns. But you've got to take them all seriously. I mean, they're important to the parties, if nothing else.

Tim Kowal: Well, carrying on the comparative law theme, let's talk about the work or the teaching that you've done in Italian law schools, and what perspectives have you gained by teaching law in Italy. What are some perspectives that you've gleaned from that experience?

Hon. Thomas Willhite (Ret.): I really enjoy teaching over there. I go twice a year to universities in Naples, Rome, Bologna, Genoa, Turin, and I talk about two topics generally. One, I talk about international law and the International Criminal Court, and the second thing I generally talk about has to do with jury trial and comparative procedure. The Italian system is a judge-centric system, just like most of the continental European systems, although it's a bit of a hybrid because after World War II and recently they adopted a new code in the 1980s, actually, that adopts some of the American concepts of the trials. So whereas it's a it's a judge centric system, you have live testimony, you have the right to confront and cross-examine in both civil and criminal cases. The biggest difference, and what I have learned, is that there has to be a written decision in Italian cases. Again, there's no jury; it's decided by a panel of judges, but there has to be a written decision, and it has to meet certain requirements, and it's much more stringent than our statement of decision requirement in a in a judge trial. And one of the lessons I give, frankly, is I take two serial murder cases, one American, one Italian, and one of the slides I put up is the American verdict form comes out of the jury, which is guilty, not guilty. True use of a firearm, no true. Then I put up just the table of contents of the Italian sentence. Their judgment is 400 pages long. So there's a good and a bad. The good is that there's a certain one of the distinctions I draw is that their system is more rigid, more rigid decision-making. I'd say where you really have to evaluate all the facts and the law and the reasoning of the decision maker in the trial level in the U.S. You don't right, you don't know what the jury is thinking, and so there's a famous saying by an international law scholar that out of Stanford years ago that if he were a criminal defendant and he were innocent, he'd want to be tried in an Italian civil law court because the judges analyze the evidence very carefully and are more likely to see that he's innocent. If he's guilty, he'd rather be tried in a jury trial because the jury has the discretion. Basically, there is nullification of the law, and so it's an interesting dichotomy to focus on that and the judge-centric versus jury system that we have at the trial level. And it impresses me that there is an element of reliability, predictability in the Italian system that we really don't have here in the jury system.

Tim Kowal: You mentioned the term sentence the sentence in in Italian.

Hon. Thomas Willhite (Ret.): I was translating roughly. It's really judgment. The sentencea in Italian.

Tim Kowal: Okay, so the judgment or the decision is two. Did you say 400 pages?

Hon. Thomas Willhite (Ret.): Well, it depends on the complexity of the case. This was a case involving a serial murderer, and they had to go through every single homicide, all the evidence with respect to every single homicide, and then apply the law, et cetera, et cetera. Which, and this is again at the trial level, not the appellate level. And so, even in a relatively simple case, the decision is quite detailed, civil and criminal.

Tim Kowal: Well, and that's got to bog down the system. I mean, how many trials can a can a judge process in a given year if they are if they have to produce judgments that are hundreds of pages long?

Hon. Thomas Willhite (Ret.): One of the huge criticisms of the Italian system is the duration of trials, and in fact, post-pandemic, the EU condition funds of assistance on, among other things, reform of the Italian judicial system to speed up the trials, primarily in the in the criminal area, because people were incarcerated long periods of time awaiting trial. Even now, when I speak to my Italian colleagues, a trial- and I mean the trial; I'm not talking about the preparation once the proceeding starts can take three to five years. Why? Because it's a judge trial. They'll have a witness testify. Then they've got to get on to the next case, so they continue it for a few months. Then the next witness testifies, and it's a real it's a real problem. That is a huge criticism of the system. And I've talked with I was a brief consultant with. The court authorities in Rome on how to short circuit things in the civil and criminal area, and I mentioned the possibility of plea bargaining and civil, and then settlement conferences, et cetera, in the civil area, and they're aware of that. But under the Italian Constitution, in a criminal case, the prosecutor has the obligation to prosecute, doesn't have the discretion to settle the case, and then the civil case is just not in their judicial DNA to engage in settlement conferences. There are changes that are that are that are undergoing, but it's been a slow process. So, the short answer is, it takes a long time to try cases in Italy.

Jeff Lewis: And your honor, for those multi-year cases, if in the middle of your trial a judge retires or gets sick or something, do you start all over again with a new judge?

Hon. Thomas Willhite (Ret.): The panels, depending on the serious of the seriousness of the case, are one judge, three judges, and six judges, and so you can substitute at some point for the multi-judge cases. But obviously, if there's one judge, and that's for the

Jeff Lewis: Interesting

Hon. Thomas Willhite (Ret.): those cases. One-judge cases don't take nearly as long. I'm talking more about the important cases. I don't know if you remember the Amanda Knox case from years ago, but that took years. That took years, and one of the reasons is that the intermediate appellate proceeding is actually a retrial. They don't have the standard of review that we have, so the appellate court actually retries the case and isn't bound by factual findings, etc. Like in the Amanda Knox case, she was convicted; the court of appeals reversed it. She was retried, convicted, the court of appeals reversed it, and then finally it went to the highest court and they upheld the reversal. So these things-it's just a different process. It gives me an appreciation of our system and its efficiency when it is efficient. Right now, we're having some trouble, and certainly Southern California post-pandemic, but not as bad as Italy. On the other hand, there are attributes to the Italian system that I much admire, including the hard work the judges have to do in order to decide the cases.

Jeff Lewis: They're probably not inundated with lemon law cases eating up their days in Italy, right?

Hon. Thomas Willhite (Ret.): Of lemon law, no. They do have they have the similar range of civil cases that you'll see, not particular statutory causes of action, but the similar range that we would call common law, but their system is not common law. It's by statute, but the similar cases.

Tim Kowal: Does a civil procedure track some of the ways you've been describing the criminal procedure, where they always end in a reasoned decision?

Hon. Thomas Willhite (Ret.): Yes, and of course the courts are backlogged like they are here. So the impact of civil cases, the number of civil cases, interferes with the number of civil trials you can actually get, and when you can get them going. I do want to say there are some what they call abbreviated proceedings that one could engage in, which is kind of a mini trial on the documents, but it's not that common. It's not that common.

Tim Kowal: Well, listening to your description of the Italian system, I can imagine a cynical, abbreviated description of it as just involving, well, a trial takes many years, and the judge doesn't even sit and hear all the evidence at once. They might make me wonder whether they have a producer that's going to edit the clips all together so they can watch it in one sitting at the end.

Hon. Thomas Willhite (Ret.): Yeah, well, it could be. They've had their equivalent of court TV, so you can watch. Usually, it's criminal cases,

Tim Kowal: But the way you actually described it makes it sound like there is an abiding respect for the law in making sure that all of the evidence comes in and it's all considered and it's all thoughtfully analyzed. Do the judgments end in these several 100-page judgments, even in cases of innocence, or are they more summary?

Hon. Thomas Willhite (Ret.): No, I mean the obligation is to discuss the evidence and apply the law and render the judgment, and so they sometimes end in acquittal. But there's no such thing as double jeopardy, so the prosecutor can appeal an acquittal, and then it can get retried in the court of appeal. So those principles are different than our system. 

Jeff Lewis: One of the things that plagues us in Southern California is a shortage of court reporters, an inability, at least till recently, to use audio recordings in lieu of reporters. How have they solved that problem in Italy? Do they have that problem at all with reporter transcripts or audio?

Hon. Thomas Willhite (Ret.): Stenographers that are taking the testimony, and they don't have again, they don't have the same restrictions. I would say on the use of reporters or even audio. You can have audio depending on the circumstances. So that really has not been a problem that I have been identified to me with respect to the trials. One

Tim Kowal: Other follow-up on your observation in the Italian system that there is presumptively no plea bargaining and presumptively no settlement conferences is this is this by rule or is this more of a legal custom, something that's ingrained in the Italian legal mind?

Hon. Thomas Willhite (Ret.): Well, the criminal side, it's it's. Based on a provision of the Constitution that essentially provides that the prosecutor has to open an investigation every time there's a report of a crime, and the prosecutor does not have the discretion in and of itself to dismiss the case, they have to ask the permission of court, and the court can order further investigation, and the court has much more control over the type of crime that is ultimately charged and/or tried. There is a system of plea bargaining in Italy. It's called pateggimento, which is kind of an infant form of our type of plea bargaining, but it's very limited. It's very limited, and it has to get around this constitutional provision on the civil side. It's more not in the DNA. It just isn't some. The expectation is the case is going to go to trial. Now again, they do have some fledgling ADR programs that are government-sponsored, and there is more interest in attempting to settle. But by and large, these cases go to trial. They don't settle. That's just the custom.

Tim Kowal: Yeah. All right. Well, let's bring this back to the California legal system, where you served nearly 20 years in the California Court of Appeal, authoring roughly 2000 opinions. I'd like to get some of your takeaways from your experience drafting so many opinions, and maybe you could start by telling us how you see briefing in the California appellate system. My own experience is I always think that I'm getting better and better at briefing, and yet when by the time the opinion comes and I'm looking at my opening brief and how things wound up in the opinion, sometimes there I have a lot of work to do trying to close that gap. What are some of the tips that you've picked up that you advise your clients now as a mediator and appellate consultant?

Hon. Thomas Willhite (Ret.): Well, one of the things I always stress is conciseness. When you're in the Court of Appeals, especially, there are a lot of cases, and so the judges really appreciate justices really appreciate getting to the point. The type of brief that sometimes I would not look favorably upon is the type of brief that has an introduction where they tell me what they're going to tell me, and they tell me at length, and then they tell me what they told me. Certainly, you've got to have an introduction that sets it forth, but three, four page introduction of what's going on isn't really necessary. I'm going to read it. I'm going to know the record, and I'm going to get to the issues. Second thing that I think is really important, and appellate specialists do this, but you see a lot of appeals from persons that aren't appellate specialists. Maybe they're the trial attorney that doesn't have a lot of appellate experience. They don't provide a complete factual statement of facts. They provide only the evidence favorable to the client, and of course, that's a violation of the rules of court, and it's not helpful. That's really not helpful. Another thing that has always impressed me with the with the what I consider the good briefs is they take head-on authorities that are either against them or couldn't be argued against them and distinguish them. One mistake that can be made is not to discuss the case. Sometimes waiting for your brief is not a good idea because it's out there and the judges know it, and you really need to address it head-on in your opening brief because it's gonna it's gonna be there. So I think that's important too. Obviously, we were talking a bit prior to the recording. The use of AI is problematic. I would urge the listeners, to the extent they use AI, and there are proper uses of it, to be judicious. Always double-check, especially citations of authority, or you're going to get yourself in trouble. So I would be very careful with that.

Tim Kowal: Yeah, I would wonder if a judge is confronted with needing to write a 400-page judgment if AI could be leveraged to take some of the load off.

Hon. Thomas Willhite (Ret.): Well, there are recent proposals. This is for arbitrations, but prohibiting arbitrators from using AI in certain in certain ways. I don't believe they've been adopted yet. My own feeling about AI is, I think I said, for limited uses. I think it's fine if you're trying to do an outline and you want an organizational structure. I think it's helpful. Some of the research tools can be helpful, but you really have to be careful and double-check everything.

Tim Kowal: Back to your advice about writing an introduction, I took that one personally because I do adopt that strategy of using my introduction as telling the reader what I'm going to tell them, and then telling them at length, and then in the conclusion, telling them what I told them.

Hon. Thomas Willhite (Ret.): Well, again, I think there's any problem with an introduction. What I'm really talking about are the lengthy introductions, especially in a long brief where it's not. It really isn't necessary. I do think it's good to say this case is about such and such. What I. Seen as I say, are are are what I'm talking about and advising against are rather lengthy intros that aren't necessary. Don't get to the point. What I want to read about are the arguments and the cases. And when I've got a lot of cases to read, I'm sitting on a calendar of 15 cases for an argument or more, plus my colleagues' cases. I want to be able to get through the briefing sooner rather than later.

Tim Kowal: Yeah, I just got back from oral argument in your former district. I was in the third division. You were in the fourth. I wanted to ask you some of your tips and insights about oral argument. And if you had authored 2000 opinions, that in your one of a panel of three, that must mean you sat for something like 6000 oral arguments.

Hon. Thomas Willhite (Ret.): Well, we've got to remember sometimes oral argument is waived. So some of those opinions, a lot of those opinions, there was no actual oral presentation. But I certainly sat through a lot of lot of oral arguments over the years.

Jeff Lewis: Yeah,

Hon. Thomas Willhite (Ret.): Yeah. I think the first thing to understand about, and I'm going to talk about the second district, and there's certainly now more of a movement to provide tentative. Some of the divisions are providing tentative opinions, be them very short written, more in depth, or oral. What one thing to know is that by practice there is a memorandum of decision that's been circulated by the chambers that is going to write the majority opinion, assuming it gets a majority, so that there has been a pretty in-depth review of the briefing and the record, and the premium in appellate work is on the written word. And so, if the judges don't have a pretty good idea of where they're headed, they're really not doing their job, and that's why the briefing is important and reviewing the record or oral argument is important, and it can be very important. Number one, it can help shape the opinion around the edges, especially in a case, for instance, where it's a new rule of law. And one of the questions I used to like to ask is, okay, let's say we accept your position. What is the holding? What are we going to hold? And because it really gets the focus on where where this is going to be, what the parameters are, how it might affect might affect future cases. So even if you're on the losing side and you don't want to give up your arguments, even if you have a tentative against you argue, but you have the opportunity, depending on the questions, to help shape that opinion. And this may not be the last case you represent these clients, and maybe they're going to be on the other side of it the next time, and so you have a chance to to help shape the court formulate rule. Secondly, and obviously experienced appellate practitioners know this, but welcome questions, welcome questions. The judges aren't asking. Sometimes they're one foil against the other to somebody may be concerned about a particular point, or the judge wants to score points through you with that other justice. But by and large, the questions are a good thing. They really give you a chance to address what's concerning the court and concerning the judge who is asking the question. And third, there are occasions that it has. It's probably happened. I can remember one occasion specifically where oral argument, and it's happened more than one, changed my opinion ultimately. Not on a case where I was the author, but where I was a panel member, because as a panel member, you may not have probed as deeply into the record or the briefing as the nominal author of the memorandum, and so it changed my view of the case. It was a close case anyway, but it changed the way I thought it should it should come out. So, whereas I think, as I said, in appellate practice, the premium is on the writing doesn't mean that oral argument isn't important. It can help shape the case, and on rare occasions, it can turn things around. Is

Tim Kowal: there any insight you can give to advocates who are getting ready for oral argument, and they're trying to meet the justices where they are and trying to get in their shoes? What are they feeling? Are they excited? Are they are they as excited about this oral argument as I am? Are they revved up about these legal issues? Sometimes I think we've all gone in there to oral argument, and you think, "Well, this is a real humdinger of an argument, and I bet I'm just going to get peppered with questions." And you go out of there; it's just a cold bitch, and you just just recited a script for 15 minutes.

Hon. Thomas Willhite (Ret.): Yeah, that I mean that happens. My division was fairly active, although I'll tell you there were cases where the answer was really a foregone conclusion. I mean, just the law was the law and the facts were the facts, so there weren't many questions. But usually we were pretty active, so I like that. I think some other justices have a different approach to it. One of the things I would say is, and I had to appear as an appellate lawyer for about 10 years with the attorney general's office. So I have, although this was back in the dark ages, but I have a sense of what it's like to prepare for a case and then stand there with a court that doesn't really want to hear from you or seems to not want to hear from you. One of the things that's very important, and you have to assume the court's going to want to hear from you, and you've got to you've got to prepare and be ready. Give your spiel, even if they don't ask any questions. But never repeat, never when they ask a question, be so involved in your presentation that you say, "You're on. I'm going to get to that. Let me. No, no, no, no. Get to that now. And again, appellate specialist touches you to understand that. But I think it's a natural reaction sometimes that you're so invested in presenting your argument that you don't want to get thrown off by a question. But my advice is: first of all, you're prepared enough that you're not going to get thrown off. You're going to be able to answer the question and go back seamlessly to your argument, and that's important. The other tip I would pass on: sometimes you get a question you don't know the answer to, and that happens. Maybe it's an arcane part of the record, or maybe it's one judge's justice's comment about a case that you haven't really thought about. The way I have always advised people to handle that is that just be candid. Don't try to fake it. Say, Your Honor, I don't have a firm answer on that, but if it's really important to the court, I'd be more than happy to file a letter brief addressing this point, and of course, giving a chance to the other side to do so after oral argument, and that's the best way to handle that. It's not good to just fake it, if you know what I mean. And if it's an important point, I think the court's going to want to have that brief, and we did that occasionally. And I don't think there's any demerit to the advocate saying, "Hey, I don't know at this point. Let me let me go back to the office and review the record and give you an intelligent response.

Tim Kowal: Yeah, I think you mentioned a good "do not do" at oral argument, which is to maybe be so self-absorbed in your own argument and your own script that you would you would not directly answer the panel's questions. Are there any other things that advocates should not do? I try sometimes to actively rein in my own enthusiasm or eagerness, so that I'm not talking so fast that the panel would not want to interrupt to try to give enough pauses. So in case one of the justices want to break in with the question, they can do so.

Hon. Thomas Willhite (Ret.): No, I think that's a very good practice. And again, you're kind of hyped up for the for the argument. It's easy to talk fast and not leave room for questions. So, a very good practice is to incorporate some pauses after you've made important points, just a little bit of time, so the judge can say, "Let let me ask you, mr. Cole. Blah blah. And I think that makes it easier for the court to interact with you if they're inclined to do so than if you're giving a 15-minute monotone talk, the other thing again, this is this is more for non-specialist attorneys, but it's not a trial court argument, and so it's a it's a much more objective, removed arm's length type of interchange. So if you tried the case, take a step back from the trial attorney mode, and try to just be more objective in terms of how you how you approach the issues and talk about the talk about the case.

Jeff Lewis: Yeah, yeah. I was just counseling a trial lawyer today about oral argument. I said more masterpiece theater, less better called Saul. Very well, do much better.

Hon. Thomas Willhite (Ret.): Very good way to communicate it. That's exactly right,

Jeff Lewis: Your Honor, the justices are not as excited to see my briefs as they are Tim. What advice you have for an appellant who's five minutes into argument and it's a cold bench, no eye contact? Is there anything that the appellant can do other than just finishing their script? That's

Hon. Thomas Willhite (Ret.): a good question, and I'm not sure there's a satisfactory answer to it. You can certainly, as you do, happy to answer any questions. But it's-I don't know that there's a way to get the justices to answer, to get involved, and ask questions if they don't do it on their own initiative. And you know, the reality of the court of appeal-it's a court of error. It's not a court of discretionary review, and so the court of appeal is looking at case. As you know, the number, the statistics on reversal of judgment in civil cases is not great overall. It's about 15% but that is skewed by the fact that a lot of those appeals involve summary judgments or demurrage sustained without leave to amend, in which case there's a greater chance you would get you get a reversal than after a trial verdict, and in criminal cases it's more like 95% are affirmed, and so you have to take that into account and be philosophical. If the judges aren't aren't you know asking questions, basically, well, I guess they think the law is against me and the facts are against me, and there's not much I can do to change their view. I mean, I don't know what to tell you. That's a tough one. Again, my philosophy was: look, I don't want them to think I'm a bump on a log. You know, I'm not a potted plant, so I'd like to ask a few questions anyway. Just, I mean, they made the they made the effort to come down here and talk to us. So even if I'm not going to change my opinion, give them a chance. I mean, they have a client, but that's not to say there weren't times when I felt like I'm a bump on the log. I needed that, but it just does. It just does.

Tim Kowal: One other, one other question about how to how to read some tea leaves at oral argument. Talked about one of the ways you try to assess how things are going are by whether you're getting questions and obviously what the questions are, what the tenor of the questions. Another way sometimes is to look and see if the if the justices are writing notes after you make a point or another. And I wondered if you can offer any insight. What are those justices writing down? Are they writing down a plus argument? Need to go back to the drawing board and

Hon. Thomas Willhite (Ret.): well depends on when they're writing. Depends on when they're writing and how you see them write it. I'm not going to lie; there are justices who are doodling as you're talking. However, more often than not, they're taking notes on what you're saying, especially if it's in response to a question. The other thing that I don't know inside baseball. If you see the judge flipping through the memorandum and they're asking a question and then they start to take notes, pretty good sign that they're that's something that they really want to know that they maybe they're not pleased with in terms of the draft that's going around and they have a question on that point, but I can speak. I think overall, it's more likely that they're taking notes on what you're saying to try to supplement the circulating memorandum than it is that they're just scribbling to pass the time of day.

Tim Kowal: Yeah, let's hope so. I mean, there's only so,

Hon. Thomas Willhite (Ret.): and also I think you probably have seen. I mean, it was it's not uncommon for justices to pass notes back and forth, sometimes during argument, to to anything from "Hey, that's good point," to "I want to follow up, or unless you want to ask something like that. So those communications happen as well in the dynamic of oral arguments. Sometimes you'll pick that up, and if you see that, that's a good sign.

Tim Kowal: Let's talk about incivility and the integrity of the bar. I wondered your impression whether incivility in briefs or just in general is it getting worse, getting better, or about the same as when you started over 20 years ago.

Hon. Thomas Willhite (Ret.): I think it's worse than when I started. One of my former colleagues, a good friend, Justice Brian Curry, for presiding Justice Brian Curry, Division Four, was co-author of the CJA and Barr proposals for new rules on civility, which are currently pending before the California Supreme Court. And of course, I was a panel member on an opinion that Justice Curry wrote that took took an attorney to task less friend civility, I guess, than sexism. Although I think it's all the same. My take on it is that the general standards of civility have decreased at the appellate level. Again, because it's more arm's length, it's not as much of a problem as it is at the trial court level. And I see it in arbitrations. I see it in mediations. I do it. I do references, whether it's a discovery reference or I recently did a trial by reference. And not, I don't want to. These cases weren't cases in which there were certainly the most recent one where there was incivility. But you see it. You see it, and it's disturbing. And so my general thing that we are in need of some remediation in terms of how it's practiced, and I want to tell you it's a two-way street. There are some judges who are not particularly civil and need to work on that. Problem for us judges is we don't see each other on the bench, right? We talk in the lunchroom, and so and so is funny, great guy. I can tell you, when I was Stanley Moss downtown, I had a colleague who was he was great when you talked to him, but he got sanctioned twice by the CJP for his courtroom demeanor. So it happened. So I think it's on both sides of the of the bench that we need to do this. Although from my perspective, as a former bench officer, now a neutral, I see it more from the attorney side, but I certainly think I can tell you at a personal level when I see some of the words coming out and dissenting opinions in the in the U.S. Supreme Court, it's really just disappointing to me. I don't see it so much in our really don't see it at all in the California Supreme Court or even the courts would appeal. But yeah, it's an issue. I think it's an issue, and I think it's something we all have to be aware of.

Tim Kowal: Yeah, there have been some theories floated that, at least in the in the federal bar, there could be some auditioning that happens, especially after the filibuster has gone by the wayside for judicial nominees. That expressing one's stark opinion with flair is a good way to get noticed. Now, of course, that as you mentioned, that's that phenomenon doesn't happen in the state system.

Hon. Thomas Willhite (Ret.): Well, when I was first an appellate justice, I worked with Norm Epstein, who was one of the most recognized appellate justices in California, and he, of course, was an author of some of the Whitkin treatises. And the Whitkin treatise talked about dissents, and the dissent was the best dissent. Doesn't mention the majority opinion. The dissent simply sets forth its contrary view of the case. Now, I don't know that has ever taken hold per se, but it is an interesting idea, is is it not? That I disagree, but here's even if I'm not going to mention the. I do it in a way that's respectful and say this is this is the way the case ought to come out and here's why, as opposed to denigrating the not simply the analysis but even sometimes the integrity of the of the other side.

Tim Kowal: I also wanted to ask you about a different kind of incivility or maybe it's maybe it's a symptom of too much form informality. This came from a 2019 published decision from your division in Briganti versus Chow that highlighted a lawyer who had described a female judge as "quote unquote" attractive in one of the briefs. And this was let me see if I find the description was at least ostensibly complimentary, where the attorney described the judge as an attractive, hardworking, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or federal bench, and and I think the opinion says something to the effect of, with due respect, every so often an attractive, hardworking, brilliant, young, politically well-connected judge can err, so let's review the the errors, and I wonder if you can comment a little bit about that. And it's not it's not what people normally think of as incivil, but it is inappropriate. And in the in your panel called that out.

Hon. Thomas Willhite (Ret.): Sure, the author of that was just my former colleague, Justice Curry, Presiding Justice Curry, who was very attuned to the civility issues. Having worked with a lot of female justices and judges, there has been a lot of sexism in terms of how female judges are referred to and treated. And I think the impetus for this was that kind of ostensible complimentary language is really not so. It's really demeaning in its full impact, and I think we, as a panel, felt the need to call that out and get that out there so that kind of thing doesn't occur. The attorney himself-it was a gentleman. I don't think he meant any harm by it. Okay, he was an old school lawyer; he'd been around a long time, but nonetheless, one has to recognize that kind of language doesn't really have a place anymore, if it ever did, in our judiciary, and it certainly rings true to female just judges who have had to put up with it. I remember that good friend who was trial court. One day, she showed up without her wedding ring on and sidebar during trial, one of the attorneys says, "Hey, Your Honor, you don't have your widget room on. Can I ask you out on a date? How is that appropriate? I mean, that kind of thing happens, and I think it's important to realize that, and that's the purpose of that opinion.

Tim Kowal: You retired in January 2023. You were at you've been at ADR Services ever since. What drove that decision after three to three years on the bench?

Hon. Thomas Willhite (Ret.): Well, I didn't want to be a judge who retired too late and woke up the next morning and said, "Well, what do I do now? I wanted to have some my own projects. I wanted to do private judging, and I wanted to do my Italy program. And frankly, I also thought that I'd been at it a long time. It was time for somebody else, maybe with a different perspective, different outlook, or at least a new brain to bring to bear on some of these questions. And so, I just thought it was the right. It was the right time, to be honest. I loved my time on the court of appeal. I have told people, and I say it to this day, that being a justice on the court of appeal is the best judicial job in California. I really, I really think that because you get to see all the cases. Yes, there are some that are kind of pro forma, but you get so many issues, and you get a chance to work with some really great people. And so I love my time, but it was, it was really just time to move on.

Tim Kowal: How does your judicial experience, and especially your appellate experience affect the way you mediate cases or consult on cases.

Hon. Thomas Willhite (Ret.): Well, I think I think I get a lot of assignments or cases because of the appellate experience. It's the kind of case where having an appellate judge talk about the law and applying the discovery, the evidence such as it exists at the time, to some of the legal principles gives qualitative evaluation pro work on plus or minus to the parties, and I think that's important. But I also think my trial court experience-I mean, I was in the trial court for a lot of years. I did a lot of trials and did a lot of settlement conferences. That also helps because you have to appellate assignment is kind of removed. You don't for 18 years I didn't interact with counsel except a function or an oral argument. You don't you don't interact the same way you do on the trial court, and so I had to kind of relearn those skills really to be personable and get just interact. And I think my came back pretty quick because of my trial court experience as well, but the appellate court experience also is very is important. I do a lot of my own research. I when I was in the court of appeal, I wrote every calendar. I try to write at least one opinion myself, and the decisions I write in my arbitrations and references I write myself. I don't use research attorneys, and so I think that kind of experience I hold. Gives me a certain level of credibility when I'm talking to the parties of mediation that I know whereof I speak. I don't have a crystal ball; it's broken. But if I tell you something, I've thought about it.

Tim Kowal: Jeff and I have done a lot of appeals, but certainly from the from the practitioner side, we haven't been behind the curtain. What kind of insight are you able to give your clients that are of the nature of a behind the curtain type of perspective that goes beyond just the objective criteria. Yes, there's an affirmance bias. There's avoid substantial evidence issues. Maybe something like this is just not how my brothers and sisters on the on the appellate bench think.

Hon. Thomas Willhite (Ret.): Yeah, I mean I have done that in some of the appellate consultations I've gotten. Number one, at least now I still know most of the judges and have worked with most of the judges. And also, to the extent there are new appointees, I have seen the records and trials of the new appointees. So I have some sense of how they tend to look at cases and how they tend to analyze cases, and so I do think there's a kind of informed-not really speculation-but this is the way this panel tends to look at cases. And if you have Justice So and So as the lead author, this Justice, whatever, clerked for this U.S. Supreme Court justice and did a lot of trials, or this just this justice was the federal side most of the time during his or her formative time as as a lawyer, and these kinds of things give I think given knowledge of these kinds of things that I can bring to bear can help give a I use the term inside baseball kind of an inside baseball look at things. They're not determinative, but they can be helpful in analyzing a case, is

Tim Kowal: looking at a justice's background before they entered the judiciary's informative into how they are going to rule on a case or approach a case? So, for example, your background before the bench was with the AG's office, and yet at some point you issued so many opinions in civil cases that you would have you would have more experience addressing civil issues than just about any other civil practitioner out there. So your pre bench background in the AG's office handling criminal cases really gives a poor signal about what civil experience you bring to bear. So how can a how can we look at judge or justice's pre-bench background and use that to any advantage, or is that possible?

Hon. Thomas Willhite (Ret.): Well, my view is look at the type of work that was done and not don't look at it as a kind of a philosophical indicator. You see it a lot in criminal cases. Someone whose defense attorney is presumed to be more inclined to reverse or be more lenient with the defendant and the prosecutor, not necessarily true, not at all. And I think what you have to look at is what kind of work did they do. And so, for instance, in my case, I did appellate work, as I was saying. I reviewed hundreds of trial transcripts. I had that behind me. Yes, I represented the state in a certain way, but it's the level of the skills that are taught that I think are important, and in terms of philosophy, I can speak for myself. One, I don't think judges think of themselves in terms of what's my philosophy on the scale of liberal to conservative. I think that's something that practitioners or observers say about judges having look at the entire volume of decisions over time, so I think it can be deceptive to simply look at the background and try to draw conclusions about how a judge is going to come out on a case. I think more important it is what Spiel says the judge had to had to apply in his or her time as as a lawyer and how that impacts his or her ability to do the job in your case.

Tim Kowal: Last question, and this will circle back to our previous discussion about briefing and oral argument. If you had to choose one or the other, but not both-great briefs, but only serviceable oral argument, or merely serviceable briefs, but great oral argument-pick.

Hon. Thomas Willhite (Ret.): Well, in terms of my work as writing an opinion, I would want the brief and serviceable oral argument. However, for entertainment and not being bored on the bench, I would want a great argument to keep me to keep me focused. No, as I said, my view: pellet law gives a premium to the written word, and so the brief is in the file analysis more important than the oral argument. Oral argument is important because it can help shape the opinion, and rarely, but it can change the outcome. But the written word is first app.

Tim Kowal: Justice Willhite, thank you so much for taking time with us this afternoon. It's been

Hon. Thomas Willhite (Ret.): a real pleasure, seriously, and I'm glad to know about this podcast. I'm going to have to, not my own, but listen to others.

Tim Kowal: We're glad to have you as a listener. Well, Jeff, that's going to wrap us up this episode. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: See you next time.