This is the first 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:
- 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
In part 2 of the interview, Justice Humes addresses:
- 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
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: You and I go way back, 25 years or so, to the Attorney General’s Office. . . .
Today we’re going to talk about writing and our focus will primarily be on the different positions that you’ve held. Let’s start with your current position which is as the Presiding Justice at one of the divisions of the California Court of Appeals. Can you first tell us what . . . the California Court of Appeals [is] and what are these districts and divisions?
JUSTICE HUMES: Every state has its own appellate system and California has trial courts and then appellate courts and then the Supreme Court. And there are six districts of appellate courts and I am Presiding Judge in one of those six districts.
BEV: And appellate courts, what do they do?
JUSTICE HUMES: Appellate courts review what happens in the trial courts. In criminal cases, almost every felony gets appealed and we review that. And in civil cases, parties have a choice of whether or not to appeal, and they oftentimes do. The party who loses, if they’re unhappy or feel as if something was wrong in the trial court, they take it up on appeal and we review it. Unlike what happens in the trial courts, the trial courts [decide the] . . . facts, there are witnesses, there’s evidence. The trial courts decide what happened; the appellate courts [do not] decide what happened factually. We just apply the law and make sure that the law was applied correctly. Our decisions are based solely and completely on the record, meaning the transcripts, and on the briefs that were filed in the trial court and the briefs that were filed in the court of appeals.
Clarity in Briefs and the Editing Process
BEV: First of all, the parties send you briefs. What do you look for in a brief? What [is] a good brief and what [is] a bad brief? [What are good legal writing skills or legal writing basics in a brief?]
JUSTICE HUMES: In my opinion, a good brief is a clear brief . . . I feel like the gold standard in writing is clarity and if I get a brief and I don’t understand what they’re trying to say, it has very little impact on me. On the other hand, if I get a brief that I understand and it’s clear and it’s succinct, then I’m in the game. I know what they’re talking about; I can either accept or reject it. But clarity is the first thing I look for.
BEV: How would you advise parties to get that clarity? Is it using IRAC? Is it a strong paragraph foundation? Is it all of those things?
JUSTICE HUMES: It is all of those things. It’s a lot more than those things, but that’s part of it. I think that the main thing is for brief writers to edit. Because it’s the editing process in which you apply all of your IRAC and your grammar and your correction and your clarity and your thinking in all that editing process. So, I think that number one thing that a good brief writer does is edit. People think of themselves as good writers or bad writers. I actually think of people as good editors or bad editors. Because I think everybody can be a good writer, if they put in the time and the effort and they have to have a little bit of knowledge to be able to do it. But if they put in that effort, they put in the time, they edit their briefs, they can make a good brief by following some simple rules.
BEV: What should they look for in their editing process? Should part of it be brevity? Should part of it be the introduction [which is like an] abstract of an article?
JUSTICE HUMES: All of that again. The most important paragraph of every brief is the first paragraph: the opening paragraph. Because in that opening paragraph, you’ve got to convince the judge, you’ve got to explain to the judge what’s going on, what the issue is and why you should win. You have to do that right off the bat. You basically say, “This is what I’m going to talk about in this brief and this is why you should rule in my favor.” That’s the prime real estate of any brief: that first opening paragraph. But after that, then you absolutely have to be persuasive, you have to be brief, you have to be concise, you have to be clear, you have to be readable. You have to be, and this is hugely important, non-distracting.
Grammar in Legal Writing
JUSTICE HUMES: You have to be able to edit out mistakes and that’s where grammar comes in. That’s where the editing part comes in because what you really want to do is get rid of things that are going to distract your reader, in the case of an appellate brief, the judge, and have that reader focus on what you’re trying to say and what you’re trying to argue and what you’re trying to communicate.
BEV: What kinds of things are distractions—things that are not perfectly relevant or material? [In legal writing, grammar plays a significant role, right?]
JUSTICE HUMES: There’s a long list of distractions but grammar is a distraction and I don’t think people should fetishize grammar; they should be attentive to it, but they don’t have to be hyperattentive to it. But they should be attentive to it. There’s nothing more distracting for a reader to see misplaced commas or possessives or the wrong use of words or just poorly structured sentences or confusing sentences. It’s just distraction and keeps the reader from understanding what the point is. There are other distractions, too. Sometimes people will think that persuasive writing is long writing. That’s not the case at all. Persuasive writing should be short writing. Edit it down: concise is better than lengthy.
BEV: I had heard from someone that had worked at the U.S. Supreme Court, that the reason their decisions are so long is they don’t have enough clerks to edit them.
JUSTICE HUMES: I think that’s really right! It’s funny because there’s a lot of people out there who think that the amount of writing you do has some kind of correlation with the quality of what you’re arguing. It’s just so wrong.
BEV: [A]ll the editing I’ve done as a law professor, over the last 30 years, has been to ensure that people write concise papers and sound paragraphs using an IRAC version. Students will say, ‘Is there a page limit?’ ‘Yes! 3 pages or 5 pages double-spaced.’ My feeling is if it’s 15 pages, god help me. That means it was their first draft. [What is persuasive legal writing in briefs?]
JUSTICE HUMES: Absolutely, good writing is concise writing and brief writing.
Legal Writing by Law Clerks or Research Attorneys
BEV: As a Court of Appeal Justice, you have clerks or externs that work for you. Can you tell us a little bit about what they do?
JUSTICE HUMES: Each justice has at least two attorneys who work for them; they’re called research attorneys and then they also have a Judicial Assistant who’s . . . a paralegal. Cases come in, cases get assigned randomly, and a justice will be assigned a case to work up and the justice will probably do it himself or herself. Or the justice will have the research attorneys do the first draft of it. . . Pieces of it or the whole thing. Or sometimes I’ll ask for it electronically, then I’ll go and make a lot of changes to it and send it back, and say, ‘Please make changes to my changes,’ and we go back and forth. It’s not unusual to have 20 drafts of an opinion. (Emphasis added.)
Writing A Judicial Opinion as a Neutral Document
BEV: What are you looking for in an opinion?
JUSTICE HUMES: An opinion is different from a brief, in the sense that a brief is to persuade someone to come out a certain way. The point of an opinion is to persuade, but it is to reassure the parties that they were heard and to give a resolution to the issue that is clear and that makes sense and that is correct under the law. The nice thing about writing judicial opinions as opposed to briefs, is you don’t have an outcome in mind when you sit down to start working on it. The process of trying to come up with what you’re deciding is a neutral process. Whereas, in brief writing, it’s the opposite of that. You don’t get to be neutral, you have to advocate for your client. And in some ways that’s actually liberating. And sometimes that makes it easier because you know exactly what you need to do and you go out and you do it; you advocate for your client. Whereas opinion writing is a little bit different, ‘Not sure which way to go, I think we’ll do it this way.’
BEV: And you can go down one path and . . . here’s some precedent and . . . ‘Well, I’m stuck with that.’
JUSTICE HUMES: That happens all the time.
Legal Writing in Justice Humes’s Prior Positions
BEV: Let’s go back to your position right before this, which was the Executive Secretary of Legal Affairs Administration and Policy to Governor Jerry Brown. When was that?
JUSTICE HUMES: That was 2011 and 2012.
BEV: What was that position? What were you charged with doing and what did you do?
JUSTICE HUMES: It was the functional equivalent of Chief of Staff. There were two: I had Legal Affairs and Operations and then my counterpart was over at Legislation and the Press Department. It was divided up more political and non-political and I had the non-political part.
BEV: In that capacity, what kind of writing did you do there? It seems like it was very different than writing Court of Appeal [opinions].
JUSTICE HUMES: It was very different. I wasn’t writing, so much as reviewing what people were writing. As part of my job in Legal Affairs, it was reviewing briefs that were written at the Attorney General’s office, as I had done before and we’ll get to that. But it was also a lot of review of policy memos. Secretaries in the cabinet writing to me to get permission to do something or advocating a certain course. ‘I want the governor to do “X”’, so we would get this package and it would have a memo in it, and we would have to read that and decide whether or not to go with what they’re recommending.
BEV: Can you give any kind of example if that.
JUSTICE HUMES: One involved the cleanup of radioactive waste at a waste site, and there were recommendations on how to proceed on that. The interesting thing about it is that, as different as that writing is from legal writing, it’s kind of the same in a lot of ways. I want to know right off the bat why am I reading this, what do you want me to do, why do you think it’s a good idea. I want to know that right away. ‘What is the problem, why are you taking up my day to look at this and how am I going to get there?’ So it’s the same thing about being clear, about being brief, about having your issue, analysis, conclusion.
JUSTICE HUMES: I was [Chief Deputy to the Attorney General Jerry Brown and before that I was the Chief Deputy of the Civil Division] and . . . I had other positions.
BEV: [What was the problem with the legal writing you saw as the Chief Deputy?]
JUSTICE HUMES: The problem was . . . [t]he lengthy, unclear packages that you would get, or memos or briefs that you would review; that you would finish them and just scratch your head, ‘What do you want? Are you just telling me this or is there something you want me to do? Why are you asking me to do this and exactly what is the problem?’ It was all too frequent that that wasn’t packaged up neatly or clearly. When you’re trying to get the attention of someone who’s very busy, like a judge, it’s all the more important to be right on point and have your writing crisp and clear and clean because you’ve got to get that person’s attention. And if they’re three pages into your memo and they still don’t know what you want, they’re just going to take that thing and put it aside and go to the next project.
The Importance of Sound Legal Writing Skills in Any Type of Legal Writing
BEV: [What are the commonalities in writing at any level in the practice of law?]
JUSTICE HUMES: [O]verall, my view of the practice of law, whether you’re at the appellate court level or the trial court level or really anywhere, is that writing is the most important part of it. Even at the trial court, it’s the writing that matters because the writing, whether it’s a trial brief or it’s a motion for summary judgment or it’s some other kind of proceeding, it’s the writing that’s the way you’re communicating where you have the most influence over the decision maker. Almost always. The law students that I know, they like to practice oral arguments . . . or they’re fixated on cross-examining their witnesses, and it’s all important and it’s all good, but if you had to state what the most important skill for lawyers is it would be writing, by and far away.
The Importance of the First Paragraph or Introduction, using CRAC, a Variation of IRAC
BEV: [What is the importance of the first paragraph or Introduction?]
JUSTICE HUMES: The importance of that first paragraph ties into this whole notion of writing as a process, which is what I really believe. Most of the time, or maybe every time, I draft my first paragraph and I think it’s pretty damn good but by the time I’m done with my written piece of work, I have gone back and I’ve changed that opening paragraph a number of times. The process of writing, the process of thinking it through, the process of getting it down in a way that’s correct and way that you’re comfortable with, then informs, you’ve got to go back and fix it.
BEV: [I teach CRAC, which is a variation of IRAC: issue, which is a mix of law and facts. ‘The court will find John Smith negligent because he ran through a red light and struck the plaintiff, hurting her.’ So then you would go to negligence as your rule, second, and you’d state what negligence is and what the elements are and then you would start to apply the facts to each one of those elements. So, it is Conclusion, Rule, Analysis, and Conclusion in a single paragraph for an issue, which I call a power-packed paragraph. Do you see recommend this approach?]
JUSTICE HUMES: I think that [a] power-packed paragraph is very important . . . I may even go farther on a different point and that is . . . I believe in power-packed sentences and power-packed words. Ultimately, when you really become a good writer and editor, you get to the point where you don’t want there to be a sentence in your paper that you don’t need. Not one single sentence. And then you get to the point where you don’t want to have one word that you don’t need. If you don’t need a word, get rid of that word. If you don’t need a sentence, get rid of that sentence. If you don’t need that paragraph, if you don’t need that section of the brief, get rid of it. That’s what editing is all about. Everything in your writing should be power-packed and it should be based on your power-packed paragraph, your power-packed argument.
Lifelong Legal Writing Improvement
BEV: Don’t you think that whatever level [you are] at as a writer, you can always reach the next level?
JUSTICE HUMES: Absolutely; it’s a lifelong process. And I don’t want people to think that because it’s a lifelong process, you should start later on. You should start early on in this lifelong process. Someone going to law school or someone going into any kind of field that requires writing, whether it’s a government field, a regulatory field, or legal field, whatever it may be, if you acquire the skills to write early on, you’ll advance your career in ways that your career never would have advanced if you acquired that skill later on.
I think people who are bad writers to start with but who recognize that they need to improve their skills are going to be far better off in the long run than people who think that they’re ok at writing and don’t need to improve their skills. This is what I see time and time again. Someone who starts off as an ok writer, but they don’t think they need to improve; they don’t think they need to get constructive criticism. [T]en years later [they will] be far behind the people who may have started off as poor writers, but who actively engaged in the process of improvement. They will get much better and they will go farther in their careers.
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.