All statutes describing criminal behavior can be broken down into their various elements. Most crimes (with exception of strict-liability crimes) consist of two elements: an act, or "actus reus," and a mental state, or "mens rea." Prosecutors have to prove each and every element of crime to yield a conviction. Furthermore, prosecutor must persuade jury or judge "beyond a reasonable doubt" of every fact necessary to constitute crime charged. In civil cases, plaintiff needs to show a defendant is liable only by a "preponderance of evidence," or more than 50%.

"But it is," Ruby Red pointed out.

"That's not point," I complained. "Their claim implies that my Get Happy Workbook is somehow inferior because it is not on New York Times bestseller list ... yet."

"Um ... your Get Happy Workbook?" Clever Lawyer asked.

"That's right."

"Isn't that an e-book?"

"Yes it is."

"I don't think New York Times lists e-books," Ruby Red noted.

"It doesn't matter," I insisted. "Top Publisher should be forced to remove such an offensive claim and to pay me damages for thousands of copies of lost sales."

"But you can't do that," Clever Lawyer exclaimed.

"That's right. You can't do that," Ruby Red repeated.

"Why not?" I asked.

"Because their claim is just a statement of fact."

"So is Oakhurst Dairy's," I pointed out. "But that doesn't stop Monsanto from suing them."

"But you're not Monsanto," Clever Lawyer explained. "Monsanto is a biotech giant, and biotech companies are always being accused of making 'Frankenstein fruit' or 'veggie eunuchs' or other such delicacies."

"That's right," Ruby Red joined in. "Even Viagra couldn't make a man out of one of those cucumbers."

We both stared at Ruby Red in surprise. The color of her face instantly matched color of her lips.

"Look, Monsanto still has to prove its case," Clever lawyer warned. "We have no idea if they will. You would have to prove your case, too. I have a pretty good idea that you can't, since New York Times does not list e-books."

"So, you are saying I should not sue Top Publisher for claiming his book is a New York Times Bestseller," I concluded. "Instead I should sue New York Times for not naming my e-book a bestseller?"