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.
When you read the title, you may think to yourself “That’s ridiculous. Of course you tell your lawyer what happened.” Yes, you do- just not the way you might think. Most people want to plop into an office chair and just casually rattle about what happened and get the stress of the arrest or pending arrest out of their system. Oftentimes, they are looking to their lawyer not only for legal services, but also for emotional comfort (either consciously or unconsciously). In my experience, lawyers who provide lots of office visit style emotional comfort get blown out of court. They don’t go to jail or prison, their clients do. You don’t hire a counselor at law to be a counselor for mental health. So, you don’t just tell your lawyer what happened, because your story is too important. Instead, you use a system and write out a Fact Pattern Report.
What is a Fact Pattern Report? The single most effective way to gather information from a criminal defense client, no matter what type of case is pending. The mechanics are very simple but very effective.
On day number one, you get up early, grab the nearest computer that you can privately use and begin typing out what happened. Please don’t try this on your smartphone unless you want to end up feeling like you want to bang your head with a hammer. Use a notebook computer or a tablet with a keyboard and write out everything that you think might be important for your lawyer to know. If it was daytime, then estimate the angle of the sun. If there was sound, recall everything you heard, whether it was a spoken voice or a song from someone’s radio. If you were in clothing- and most people are, but not all- then write down exactly what you were wearing.
In other words, go extreme on the details and type until you just run out of things to type. I would rather have 500 pages of absolute gibberish and two lines of gold than to get five lines scrolled casually on a piece of paper that doesn’t give me the two sentences that mean the difference between victory and defeat. Once you complete the fact pattern report on day one, you’re going to print it out. Every page should have the attorney-client privilege at the top of it. You’re going to take this printout, put it in a folder to protect your privacy, and then keep it within arm’s reach of your body during days two through four.
Your fact pattern report should always be within arm’s reach, whether it is day or night. If you go to lunch, then it goes to lunch with you. If you’re in your vehicle, then it should be sitting next to you on a passenger seat or somewhere that’s within arm’s length. If you go to the bathroom, then it sits on the counter, and when you go to bed, it’s on the nightstand. For the rest of day number one and for days two through four, you’re going to carry it with you. That way, you can write notes in the margins anytime something triggers the memory of a detail. Then, the notes in the margins can be added to your final report, which you’ll do at the end of day four. So, the basics are very simple. You write down everything that happened, print it out, carry it with you, put notes in the margins as things come to you, and then rewrite and edit the final version. The final version goes to your legal team and especially to your lead counsel.
From there, if a question and answer session is needed, it’s much more effective. I’ve used this technique since about August of 1990. I started using this technique after my very first trial almost resulted in somebody going to jail for a year. I met with this particular client 13 or 14 times, and I took as many notes as I possibly could each time. I tried to think of every question on earth. After getting a second full notepad of information, we selected a jury. On the break between jury selection and opening statement, my client said something that I will never forget. As I put my hand on the door of courtroom 301, I hear a voice saying, “Mr. Cobb, now I remember I forgot to tell you X. Is X important?” As you know, X was critically important and meant he would lose. My hand was frozen to the door.
I looked over my shoulder and I said, “John Doe, we met all these different times. Why did you not tell me?” He said something that totally changed how I gathered information from people. He said, “I kept forgetting and I didn’t know if it was important.” That day, I not only undid his jury trial, but I also went to the library (back then we didn’t have the internet) and researched quite a bit on the most effective way to gather information. That’s how fact pattern reports were born. If you or someone you love is arrested, the details of the incident are far too important to just casually wattle out during an office visit. Your story needs to be properly nurtured and encouraged to be fully told. The best way to do this is going to be by using a fact-pattern report. You will also do a second one after the discovery exhibit comes in, but that’s a subject for another day.
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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