Today in the email bag was a question and although it’s a bit before 7:00 a.m. as I’m trying to understand what the person is asking me I have to wonder if I’m 30-years younger and going through the experience of once again being a 1-L. A 1-L is how we refer to first year law students. Scott Turow made a similar term popular in his book by that same name. Here is the question. Read it and see how far you can get before scratching you head and wondering, “What is he asking me?”

If a company providing services, in which those services are paid for and terms of service are placed in which the paying parties have signed an agreement to and said company does not deal with violators whom breech these terms of service where everyone is expected to adhere to in a timely fashion. Is said company in breach of contract due to negligence of protecting those very people who agreed to said company's contract?

Holy sh_t what are you asking me? Please I’ve been practicing law for over 30-years and I don’t even talk this way. If you want to ask a lawyerly question then set it up with a no frills version of the facts and then ask a single question, like is this a breach of contract that will allow me to get my down payment refunded. I hope Scott doesn’t get mad at me for using his book cover without permission. I happen to like his writings. One L was first published in 1977, hardcover, 319 pages and published by Farrar Straus & Giroux.

While we are talking being a lawyer let’s expand this thought and talk about how lawyers make their cases interesting to those who will hear and decide it. Whether judge or jury the structure of your case should be like a mystery novel that leads the fact finder through a tale of suspense. The chapters of the case should lead the jury to be the ones who answer the final question. That final question is one of, Who done it? I call this the Who Done It Case Structure. Because the structure of the case can draw a jury in and keep them awake throughout the questioning of what could otherwise be some pretty boring testimony.

You can control the cadence of the case through use large pigeon-hole charts that get filled in as the trial progresses. What you’re creating is a demonstrative exhibit that organizes complex testimony in real-time right before they eyes of the judge and jury. It allows complex testimony to be assembled out of order but in chart form that is simple to refer to and to understand. Of course you, the lawyer, work out what structure it should be in long before the trial begins. As an example I used such a chart and trial theme in a defamation case against a news organization. The jury was told in the opening statement that we would reconstruct every position in the news room on the night before the defamatory article was published. Through a second information flow chart we would reconstruct how information known to the public is turned into printed news that lands on their doorstep in the morning.  Using this technique the order of witnesses made little difference; in fact I’m of the opinion that taking them out of order was more beneficial because it added to the suspense of the case. The one witness I identified as the offending reporter and editor was called towards the middle of the end of witnesses to allow the jury time to finger him and by the end of the case those witnesses testifying after he did confirmed the juries suspicions.

In the end the lawyer turns into a scribe and the jury the detectives. A $2.4 million verdict, including $1 million punitive was confirmation this technique works. Now don’t ask me what happened on appeal because my blood pressure is high enough as it is. Safe to say I can fully appreciate Lex Hawkins comment that he’s lost more money on appeal than most lawyers make in their careers.

Our point today is reading a John Grisham novel or a Steve Martini novel and then considering how you can turn your case into a “who-done-it” novella can pay off with the jury. I do have a confession though. Personally think Steve writes a better novel than does John, John writes for Hollywood, is predictable and Steve Martini for lawyers. Pick up a copy of Prime Witness, Compelling Evidence or Undue Influence and see if you agree with me.

Now back to the question, but first another cup of coffee.... onward we march.