Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like when you use talk to text on your smartphone, there may be misspelled words or sentence fragments. If you are looking for a fact pattern definition or are wondering “what is a fact pattern,” and how to do one properly, the information on this page will give you great legal insight.
How do you tell your story to your defense lawyer? I recall an instance earlier in my career, when I had a client I met with fifteen times – with lots of handholding. The reality is that I did not know any better, since that is what most lawyers I knew did – they met with their clients, asked a bunch of questions, took notes, met with them again, and took more notes. Here is the truth: Do not tell your lawyer what happened. You write what happened in a very specific manner. Twice. Let us discuss the proper way to get the facts to your lawyer.
First, you are going to need to do a fact pattern report if you are the defendant, whether you are in jail or not. If you are uncertain of how to start, ask your attorney for a fact pattern example. If you are in jail, it is much more difficult, because you have to do it by hand and lack tools like access to information about fact pattern law. You will have to order paper, and it can be very difficult to use a “safe” pen from the commissary. If you are out of jail on a bail bond, then it is much easier, and the following is exactly what you do.
On day one, get up early, hit your computer, and begin typing. Tell your lawyer all facts that might be useful, and they will determine whether or not it truly is. If you have to ask the question “should I include _____,” the answer is yes. I would rather have 500 pages of single-spaced information than five lines scribbled on a piece of paper that does not really tell me anything. It is far better to have 499.5 pages of gibberish that does not produce anything useful so that I can find a paragraph or two that is extremely valuable.
In one case, I had my client face a very serious drug charge with mandatory prison. He insisted that he was not guilty, I believed him, and we went over how to do a report. He began doing his report rather reluctantly. After all, day number one is just a start. You type your report, print it out, put it in the folder to protect your privacy, and then you keep it with you at all times. When I say “at all times”, I mean literally at all times. If you go to sleep, you put it on the nightstand. If something strikes you in the middle of the night, you turn the light on; you put a note in the margins.
If you go to lunch, it goes to lunch with you. My client reluctantly followed these rules, and on day three of the four-day process he was sitting in a friend’s car, and his friend just happened to drive by a McDonald’s. In and of itself, this is not unusual. They are everywhere. What was unusual in this case is my client looked at the golden arches, and it jogged a memory that he had not thought about before. There was a witness during the events that comprise the incident that wore a shirt that was golden arches yellow. Have you ever seen anybody in a golden arches yellow shirt? Of course not! No one wants to look like a walking McDonald’s logo!
“Golden arches yellow” is not exactly a popular color, but it registered because something that triggered a memory that my client had long forgotten. Therefore, he put a note in the report. He went through the four-day process, and at the end of the fourth day, he took all of his notes in the margin, and he re-wrote out his report. His fact-pattern report was about seven pages long, and in those seven pages, there was not one thing that was useful except the witness with the McDonald yellow shirt. As strange as it may sound, we found this particular witness, and sure enough, this witness resulted in the complete and total exoneration of a drug charge that would have otherwise resulted in a mandatory minimum prison sentence.
Again, do not tell your lawyer what happened. There is a specific reason why we use fact-pattern reports in our law firm. If you are working with the lawyer that is not using these reports, I suggest that you, a) do one anyway, or b) fire them immediately and find someone who will help you navigate the law successfully. Fact pattern reports are scientifically designed to produce the most valuable information possible in a legal case. However, this is not the only report you will do. You will do a second report after a discovery exhibit comes in.
A discovery exhibit contains several different elements as you can see in the diagram above. A discovery exhibit will have a large amount of information far beyond what is found in a mere arrest report’s probable cause statement. I expect every single client to go through his or her discovery exhibits thoroughly, and look at each piece of evidence.
I then expect them to do a discovery review report and there are two basic parts of a discovery review report. First, I want to know what books and audio programs my clients are using. If they are not using books, and audio programs to cope with stress during a criminal prosecution, then they are off-track, and potentially damaging their own case. Secondly, I want them to write in detail anything that they note in the discovery exhibit itself that is inaccurate. After all, I was not there: they were.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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