BEV: Hello and welcome to Legal Writing Launch. I’m Bev Meyers and I’m the founder. Today [on June 8, 2021], I have the pleasure of speaking with a former student of mine and esteemed colleague, at one point, Michael Banister. Hi Mike, how are you?
MICHAEL: I’m fine, thanks. How are you doing, Bev?
BEV: Great. So, Mike has had an illustrious career. I was fortunate enough to have Mike as one of my students way back in the day as a law student and then, actually, as an extern after Mike finished law school. Mike went on to practice at the Attorney General’s Office in the Criminal Division. And then finally, Mike is currently retired from the Attorney General’s Office and is a practicing novelist. So, Mike, I think will know a lot about the written word. Let me ask you this; you worked for me as a law clerk and then as an extern at the California Office of the Attorney General Department of Justice, and that was after you were a librarian. Is that right?
MICHAEL: That’s right.
BEV: We did a fair amount of writing at that time. I remember you doing an administrative hearing I supervised you in. I also recall that we did some writing. What are your thoughts, if you can remember them this was many years ago, about the difference between going from law school and actually working in a practice, and putting together or constructing a work product that was tight?
MICHAEL: Yeah. One of the things that I enjoyed very much was having a record, especially at the appellate level, where you have a record of a trial. And even in the administrative context or the trial itself, you have police reports, for example, and you have to be able to synthesize those and figure out what actually went on and make sure that you’re not missing something. If you pretend that you have an idea of what should’ve happened but you’re wrong, then we’re in trouble. So, I enjoyed working with you in that context. You would take a set of facts and you have to construct some kind of a meaningful argument from those facts.
BEV: Let’s talk about when you then joined the Attorney General’s Office. You worked in the Criminal Division for some 20 years. Didn’t you?
MICHEAL: Yes.
BEV: Tell us what you did there: I know that you wrote briefs, and on whose behalf? What was the rigor that went into that work product?
MICHAEL: The Criminal Division was composed of teams. So, there would be five or six attorneys under a lead attorney and the lead attorney would then hand out a brief that is an appeal; the opposing party has appealed a conviction. You would receive this big box full of transcripts and you would analyze the trial and you would read the brief that the opposing party has written and try to figure out the weaknesses in their argument—whether they were, in fact, being honest with the record. And you would try to figure out what your response would be. My job was to write a respondent’s brief; you’re responding to an appellant’s brief. You would have the advantage of having the trial court’s record and their arguments right in front of you. To respond to all of those arguments by pouring over the record and figuring out whether or not they are out to lunch or whether you’re in trouble.
BEV: That makes sense. What kinds of cases did you write briefs on? Was it robbery, murder?
MICHAEL: You name it. Of course, being a brand-new attorney at the time, they didn’t give me the big serious cases, like the death penalty cases or the serious crimes. You work your way up with the cases that are not as serious and so I had all kinds of stuff. I had robbery, rape, extortion. I had a lot of the kinds of crimes like embezzlement, where you really have to go through the record like an accountant, meticulously, and figure out what exactly they stole.
BEV: Right. And you had to explain that to a court in a way that made sense and I would assume you had to do the math for the court.
MICHAEL: That’s right. A lot of times you would find yourself actually knowing more, at least initially, than the judges knew about the kind of case you were dealing with. You had to kind of educate the court about the law and how the facts of this particular case interact with the law. You would want to make sure that the court understands your position, but you also don’t want to mislead the court, because the court can figure out the application of the law to the facts pretty quickly. You don’t want to lose all credibility, so you cannot fudge; you have to be honest with the court.
BEV: That’s very important. You and I talked before we met, briefly, about my course, Legal Writing Launch, an intensive online legal writing course. I mentioned we learned IRAC in law school: issue, rule, analysis, and conclusion. And I teach a variation of that which I call CRAC: conclusion, rule, analysis, and conclusion. I do that at the paragraph structure, so usually a paragraph per issue. What’s important in legal writing is being extremely logical and writing very well—using excellent grammar. With CRAC, for instance in a paragraph structure, “A court is likely to find Joe Schmo liable for negligence because he ran through a red light and struck the plaintiff, injuring her.” You’ve got a mix of law and fact; you’ve got the law, negligence and the facts, that this is the case where the guy ran the red light. You put the rule next, which is negligence, and if you’re moving to a particular point, like if you’re talking about damages, you have to go from big to small, you have to state what negligence is and say what all the elements are, like cause in fact, proximate cause, etc, and let’s say we’re getting to damages. And that’s the $64,000 issue for our purposes, but we have to get there. We can’t just immediately get there, we have to have some context. And then we apply our facts where you might be acting like an accountant, like in an extortion case where you’re explaining what all the math is. I can’t tell you how many times I wrote briefs and put tables in there; anything I could do to take the pressure off of the reader so the reader doesn’t have to do any work. You do all the work as a writer. Let’s talk about CRAC and IRAC. And then I want to talk to you about the importance of the introduction. Let’s talk in the context of an appellate brief. In appellate briefs, you list questions presented and answers to them, and a mix of law and fact that you might have as a topic sentence. How important is that for a court to phrase that question properly?
MICHAEL: You have to phrase the question so that you are giving the court a roadmap of where you are going to be going. You are going to point in the direction that you want the court to go; you can’t start right off doing that. You have to set forth the facts, the questions presented. That reminds me of when I used to teach Appellate Advocacy. One night a week when I was working at the AG’s Office, I did 13 semesters at Golden Gate University. One of the things that we taught was the Questions Presented. You have to set it out there for the court, so they know what they’re dealing with. You can’t start with a legal analysis or a statement of facts; you want to let the court know why they’re reading all this stuff because they can get frustrated pretty quickly.
BEV: You’re right. And the Questions Presented seems like that’s important, too, because you might have the appellant phrasing a certain way; “There was a violation of his Miranda Rights when he was in the jailhouse and they sent an informant.” The Attorney General, on behalf of the state, wants to counter it and phrase that in a persuasive way but also as a Question Presented. You’re teeing it up and then the court can then be the neutral party and take each side’s Questions Presented to figure out really what is the Question Presented here.
MICHAEL: That’s exactly right. The reader, which in a legal case is the judge, is going to be reading those two Questions Presented and seeing what the defense is saying and what the prosecution has been saying and figure out which is more reasonable.
BEV: Or maybe it’s somewhere in between.
MICHAEL: Yes, it could be somewhere in between, that’s right.
BEV: I had an interview, through Legal Writing Launch, with Justice Jim Humes, which you probably may recall was at the Attorney General’s Office and is a good friend of mine. And he talked about being an appellate Judge, and a couple things struck me. One was the importance of the introduction and how significant that is to a court in terms of getting the court’s attention, winning them over, making it clear to the court what you’re asking for—what relief you want and why you think you should get it. And the second point was the number of revisions that he does; he said he averaged about 20 revisions per opinion that he wrote. Let’s take that one at a time. When you taught Appellate Advocacy or in the briefs that you wrote yourself, let’s discuss the importance of the introduction in an appellate brief.
MICHAEL: The introduction is before you get into the nuts and bolts of the arguments and the statement of facts. You’re giving the court a picture of what this case is all about and it doesn’t have to be very long, it just has to be complete. You want to present the situation in a way that shows your position more favorably than the other. There’s no point when you’re writing a brief where you’re being completely objective; you’re always keeping in the back of your mind what conclusion you want the court to come to.
BEV: It makes sense because in litigation you’re representing a client. In your case, you were representing the state, so you always want to write persuasively. How about the revisions that you would do in drafting a brief? Would you do a substantial number and why? What were you trying to do in that process?
MICHAEL: At the Attorney General’s Office, we had supervision as you remember; you would have a lawyer who was reading your material and maybe you would feel like you don’t want to present something sloppy or don’t want to just shoot it out and give it to him. I want to make sure that I’ve got a really good handle on the facts and the law and then, I can give the draft to my supervisor. And the draft is really more than a draft; you’re going to write revision after revision and you would spend days or weeks writing this thing, depending on your caseload. You can’t take forever because you have 20 other cases that are demanding your time, so you have to be very efficient.
BEV: I always thought when you were writing for a supervisor, it is as if you were writing to file it with the court. You would want to have it your best last work product that you’re providing and then you’d be pleasantly, or sometimes not so pleasantly, surprised with the revisions that your supervisor, or in my case, when I was in the civil division, with what our client, too, wanted, before you filed.
MICHAEL: That’s right. In the Civil Division you’ve got a client to deal with, in addition to your supervisor.
BEV: Your point is well-taken that when you wrote briefs, you wanted to provide an excellent work product. You also found that the introduction was very important in the legal writing process.
MICHAEL: Yes.
BEV: That was ultimately going to be catching the court’s attention right away and making the court stay engaged and to listen to the rest of your argument.
MICHAEL: I just wanted to reiterate that everything you write and present to a court is a piece of persuasive writing; you’re not writing an academic treatise, like we used to do in graduate school. This is totally different. Of course, it has to be subtle; you don’t want to make it seem like you know you’re hiding the ball from the reader. You want the reader to know that you’re not hiding anything, but you are presenting facts and arguments in a way that supports your own positions.
BEV: That absolutely makes sense. So, you retired after 20 years or so at the Attorney General’s office and then you started writing novels. How did that happen?
MICHAEL: I had written some fiction when I was an undergraduate at San Francisco State University. I was in the creative writing program. I wrote stories and poetry and I wanted to get back to that kind of exploration of fiction, which was totally different from what I had been doing at the AG’s office. It was a liberating feeling for me to be able to write fiction. The first thing I wrote was a novella, based on the circumstances of my younger brother’s murder. My younger brother was a drug dealer; he got into some serious trouble and was killed by someone he tried to sell some cocaine to. This was a horrible, horrible experience and I did a lot of research at the time, and I set it aside. Then, once I had retired, I took all of that information and I wrote a 50 page novella based on those facts. So, that was the first thing I wrote; I called it My Brother’s Keeper, and it was a fictionalized account of the circumstances of his murder. After that I was in a creative writing program at the Fromm Institute in San Francisco at USF. One of the exercises the professor gave us was a 5-minute free writing exercise, where you just start writing about something. And I started writing about an altercation between two inmates based on my experience at the AG’s Office of prison fights, for example. I started writing about two inmates having a fight and it expanded from there and that turned into a full-fledged novel called Stolen Identity. It dealt with a kid who had been stolen from his parents by his babysitter and that was actually based on a real case that my wife told me about.
BEV: Oh really, that’s interesting.
MICHAEL: My wife is an immigration lawyer and she came home one day and told me that she was consulting on this case where a young man who was serving a prison term for murder had been stolen by his babysitter and sold to another family. And I thought that sounded like an interesting story and I ran with it and fictionalized it and turned it into a novel.
BEV: I’m not going to ask the ending of your novel, because everyone should read that. But in terms of the story, the one that you found out about through your wife, was there a happy ending? Did the child get returned?
MICHAEL: The child was in prison for murder. His stepfather outed him. He said, “This isn’t my son, really. I bought him from his babysitter in England and this kid really is not an American at all.” At that point, the immigration people tried to return him to England. England said, “You don’t have any proof he’s from England. We don’t want him; you keep him.” So that’s as far as the case went. I just took that little germ of an idea and went with it from there. What would have happened if that kid had grown up not going to prison, but actually growing up as a stepson and finding out all of this stuff about his life?
BEV: You have a third novel out now, don’t you?
MICHAEL: That was the first in a trilogy and the third one I just published is called Trial and Error. That’s the one that features the famous prosecutor, Beverley Meyers.
BEV: Wahoo! I appreciated that plug.
MICHAEL: During the coronavirus year, 2020, I wrote five novels. I just went crazy because I didn’t have anything else to do. It was a lot of fun. I just had a lot of fun writing.
BEV: Did that come out in 2020 or is that 2021? I read it and I loved it.
MICHAEL: The one that you’re in? Yes, that came out this year in 2021.
BEV: With those four others, are you still pursuing them?
MICHAEL: I wrote a novel called Around the Horn and Back. There’s actually two stories: one is a science fiction story. It’s about time travel and it takes place in Somalia, which is always an area that I was always fascinated with. It goes back in time to the 16th century.
BEV: That seems very interesting. So, there may not be a way to express an answer to this question, but the question is: how is fiction writing different from legal writing?
MICHAEL: Legal writing, you are stuck with the facts. You have a record. You have the crime or whatever it is that’s going on at base and you have to deal with that.
BEV: Act, occasion or event.
MICHAEL: That’s what you have to deal with and you can’t mess around with it. Stephanie Wald, who was one of your colleagues at the AG’s office, she was one of my supervisors for a while, and she took me to task for being a little too dramatic; trying to go a little too far so she reigned me back in. The same thing with Clifford Thompson. He would say, “Look, you’re you’re writing like a novelist.”
BEV: And now you’re a novelist!
MICHAEL: Now I’m a novelist. I have the freedom. I’ve thrown the shackles off.
BEV: So that’s actually a really good point. We’re saying it in jest, “the shackles,” but you really are constrained in legal writing particularly by the IRAC CRAC format. We’re constrained by it for a good reason, because it produces the logical work product that we want. If we didn’t use it, we couldn’t really get there, because it always focuses upon that mix of law and facts that is so critical to any analysis. When you’re without one or the other, your reader doesn’t know what you’re talking about. If I’m mentioning a memo to a supervisor, “This is a negligence case,” in the first sentence of the memo and they’re like, “Well, which case is it? Is this the slip and fall case? Is this the hit and run case? Which case is this?”
You also don’t want to just lead with the facts, because as lawyers we’re trained to focus our analysis around a legal element. We will apply the facts to that element. So, for instance, comparative negligence or damages where the plaintiff might claim that they’re entitled to $100,000 in damages and the defense claims they’re entitled to $5,000 in damages. And the plaintiff claims the injury is horrendous: broken leg, can never walk properly again. And the defense is like, “It’s nothing, he’ll get over it. How many doctors did they really see?” and that kind of thing. So somewhere in between is the truth. We’re really constrained in that framework, and for good reason, because it produces a pathway for us to get where we need to go. But in a novel, I would assume, you don’t have those same kinds of constraints.
MICHAEL: No, you don’t, unless you’re writing science fiction or fantasy. If you’re writing a novel that is set in the real world, of course you want to make it as realistic as possible, but you’re not as constrained as you are in the law. When you’re writing a legal brief, you are constrained with the facts, but with a novel, you’re not.
BEV: What is your writing structure in a novel? I suppose at some point you’re going to have your movement up to the climax and then you’re proceeding back from that. That’s what I recall from many many years ago. Just in the sense that we’re comparing disciplines.
MICHAEL: To give you an example, I first tried to write a full-length novel back in the early 90’s when I was still working and I was at a retreat in the Santa Cruz mountains and one of my professors was a very funny guy and I decided to write a character sketch of him. So, I went and I started writing and writing and I ended up writing about 300 pages and I really didn’t have any idea what the resolution of this story was going to be. And I had to put it aside for a number of years. Then I learned, when you’re going to write a novel, you really need an outline to start with. You need to figure out what the overview of the plot is, what’s going to happen. It doesn’t have to be completely detailed but you have to have a timeline and some climaxes and some anti-climaxes and that kind of thing. So that’s what you have.
BEV: That makes sense. Let’s wrap up here and thank you very much for all of this information; it’s been entertaining to go through your different careers. Do you have any advice for students entering law school now about their study habits and what kind of attention to writing they should pay?
MICHAEL: Definitely attend your classes; take very, very copious notes. Join a study group and get together with three or four friends and at the end of the week, go over your notes together. That’s what I did in law school with four or five people and we would sit down and say, “Now we’re going to talk about civil procedure. What did [the professor] say about such and such? What do you have?” Take copious notes, attend class, and consult with your colleagues, your fellow students; and don’t be afraid to ask questions in class, because if you don’t understand what’s going on, you’re in trouble.
BEV: What do you think about the importance of outlining?
MICHAEL: I think it’s very important to outline. In my opinion, it’s critical. There are different ways to outline, and some people do a sketchy outline that they can remember what it was just by looking at the outline itself. Some people have to have a very detailed outline and you have to figure that out pretty soon in law school. Try it both ways and when you’re in a study group with some fellow students, you’ll find out what the best kind of outline is for you. But I can’t stress that enough.
BEV: Do you think that a course such as mine, an intensive legal writing course, would have been helpful to you before you even went to law school?
MICHAEL: Yeah, it would give me an idea of what I was in for. I had no clue, other than the fact that I wanted to shift gears and get out of the rut I was in. I have to say, my first semester of law school was pretty rough because I didn’t really have an idea and it would have helped to have a course like this to get going on.
BEV: For incoming law students, that would have been helpful? Do you think it would have been helpful to have a course like this for law students, perhaps before their first summer job, before they actually worked in an internship or a job, to have some sense of writing for the law practice?
MICHAEL: Yeah. I remember talking to my colleagues, my fellow students and the idea we came away with was, the stuff we’re learning in law school tends to be academic; it tends to be books and cases; but, once you get in the real world and you start working as an intern in a firm, you discover that you have to really shift gears pretty quickly and take the kind of knowledge that you have of the law and apply it to where you’re going with that law. It’s not just an academic enterprise.
BEV: Right, so at that point, for 1Ls or perhaps even new graduates before they take the bar exam or those who fail the bar exam or those who are new lawyers, you feel like a practical course in legal writing would be very helpful to them at those points in their career?
MICHAEL: Yeah, I think it’s critical. I think you really do need to do that because, ultimately, your legal writing is really where you put your own ideas and your own analyses out there for the reader and that’s what it’s all about. You have to learn how to do that.
BEV: Absolutely. Thank you, Michael Banister, novelist extraordinaire and retired attorney and retired librarian, for all this. I appreciate your interview today.
