This is the second part of an interview with Bev Meyers, Founder of Legal Writing Launch, and Jim Humes, Presiding Justice of the California Court of Appeal, Division One. This part of the interview discusses the following areas:
- Writing a Sound Motion
- Eliminating Passive Voice in Legal Writing
- Legal Writing in Legal Memos and Demand and Opinion Letters
- Law Student Legal Writing Skills
- Legal Writing Skills for Students Who Have Failed the Bar
- Legal Writing for Paralegals
- Writing Skills for Undergraduates Who Are Pre-Law
In the first part of the interview, Justice Humes addressed:
- Clarity in Briefs and the Editing Process
- Grammar in Legal Writing
- Legal Writing by Law Clerks or Research Attorneys
- Writing A Judicial Opinion as a Neutral Document
- Legal Writing in Justice Humes’s Prior Positions
- The Importance of Sound Legal Writing Skills in Any Type of Legal Writing
- The Importance of the First Paragraph or Introduction, using CRAC, a Variation of IRAC
- Lifelong Legal Writing Improvement
Writing a Sound Motion
BEV: Hi, I’m Bev Meyers and welcome to Legal Writing Launch. I’m the founder and today I am privileged to have with me a colleague of mine and friend, Justice Jim Humes, from the First District California Court First Division, Presiding Judge. Welcome Justice Humes.
JUSTICE HUMES: Thank you, Bev, delighted to be here.
BEV: [What are your tips for sound] motion writing?
JUSTICE HUMES: [M]otions are going to resolve 90% of the cases that don’t settle, you better know how to do a good motion. And part of doing a good motion is making sure that you are persuasive, concise, capturing the attention of the decision maker and doing it right. You’re not getting into these distractions, which I’ve mentioned earlier [like poor grammar].
Eliminating Passive Voice in Legal Writing
Bev: [Let’s talk about pet peeves in legal writing. What about passive voice?]
JUSTICE HUMES: I see way too much passive voice in writing and like you, I’m a big advocate of the active voice. Active or passive is not necessarily right or wrong, in terms of grammar. It’s just interesting or not interesting. Are you going to capture the attention of your reader or not? If you’ve got too much passive [voice] in there, . . [i]t’s just exhausting to read and not interesting. So you want [to use] . . . active voice to make it more interesting.
Legal Writing in Legal Memos and Demand and Opinion Letters
BEV: [Let’s talk about legal writing in legal memos and letters.]
JUSTICE HUMES: Legal memos are probably more akin to a legal opinion. Because [in] a legal memo, you’re trying to give a balanced view; you’re trying to explain what the law is; here’s the pros, here’s the cons . . . And you have your conclusion. A legal memo is more about the whole picture; it’s not an advocacy piece, it’s an explanation piece . . . A good memo [conclusion] is, “We have a good chance of prevailing on this point but there is no settled law on this issue and we could lose because of this principle,” or something like that.
And a demand letter, that’s of course [a] different kind of writing. In a demand letter, you don’t want to give the other side a balance of . . . what your strengths and weaknesses are. You just want to tell them what your strengths are. You want to be professional and courteous, but very direct and you want to say, “this is what it is and this is what we demand.”
BEV: And an opinion letter, I suppose . . . [is similar to] . . . a legal memo [in objecivity].
JUSTICE HUMES: [Right.] You’re [stating] the pros and the cons.
Law Student Legal Writing Skills
BEV: Just to finish up here talking about the different students. Incoming law students: how about law students before their first job. What should they focus on?
JUSTICE HUMES: Same thing. Process of writing clearly and writing well. The earlier on you can get those fundamentals, the better off you are. If you’re going to go into private practice, you got someone paying your bill, someone paying for your time. So it’s much harder to take the time and spend it editing and re-editing work when somebody’s paying your bill.
BEV: So, it’s much better to get those skills beforehand.
JUSTICE HUMES: Absolutely, much better.
Legal Writing Skills for Students Who Have Failed the Bar
BEV: [How about] students who have taken the bar and failed the bar. What suggestions do you have for them?
JUSTICE HUMES: I would say that one problem that’s likely happening is that in their writing they’re giving the rule and the conclusion, but they’re leaving out the analysis. And they’re not following your [Conclusion, Rule, Analysis, and Conclusion] CRAC method because it’s the analysis part that oftentimes the bar examiners want to see. “The rule of adverse possession is blank, therefore John gets the property.” But no, it’s, “John gets the property because he’s been there and he’s lived there even though there’s something that indicated he didn’t.” And you talk about those elements in connection with the facts that are presented so there’s an analysis piece. And of course using your key words while you’re doing that is important for bar writing.
BEV: And in fact people should bold those.
JUSTICE HUMES: I think so. In the bar exam, you want to say there are five elements, underlining five elements. The first one, done, underline it, the second one, done, underline it. That can’t hurt! The bar examiners, unlike regular readers, are looking for certain things and they don’t have time. You wouldn’t want to overly highlight a brief or something like that, but you would with your bar exam.
BEV: So, they’re looking for the issue and the sub-issues and they’re looking for your analysis.
JUSTICE HUMES: Exactly.
Legal Writing for Paralegals
BEV: Is there anything you can recommend for paralegals, so that they can get a leg up in their career?
JUSTICE HUMES: Again, a paralegal who can write well is worth their weight in gold and they’re going to go a lot farther than the ones who don’t.
Writing Skills for Undergraduates Who Are Pre-Law
BEV: How about undergrads that are pre-law? What would you recommend for them in terms of building their writing skills?
JUSTICE HUMES: I would recommend they take a class like yours. I’d recommend they do everything they can to get in the writing game as early as possible. Sending tweets and sending texts is not being part of the writing game. Professional writing is much different than the way that most people write on social media and texting and emails. . . I think everybody, by the way, should read. Reading is an important part of writing because whether you’re reading good writing or bad writing, you can learn a lot from what you’re reading. I read the New York Times; I read the New Yorker; I read the Atlantic; I read publications and books whether I think it’s good writing and that helps my lifelong process of learning to write better. I learn things all the time. Things I like and things I don’t like. So, I would recommend that people read aggressively.
BEV: Justice Humes, it’s been an absolute pleasure to have you here.
JUSTICE HUMES: Thank you, Bev, it’s great to see you again.
BEV: Thank you for joining us on Legal Writing Launch.