McElhaney on Litigation

McElhaney Explains Why Failing the 'Giggle Test' Might Leave You Crying

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Judge Wallop, my curmudgeon friend on the Court of Common Pleas, was at it again. “I blame the law schools,” he said. “If they ever trained professionals, they don’t anymore. They don’t train lawyers. They don’t even train people to think like lawyers. They aren’t law schools; they’re the law departments of universities.”

“Not fair,” I said. “Even the most humble law schools have courses they never dreamed of when you went to school, and a lot of them involve real skills training: trial advocacy courses, advanced litigation seminars, client counseling, negotiation and settlement, legal clinics. …”

“Aw, Jimmy”—that’s what Judge Wallop calls me when he wants to be condescending—“now you sound just like a law school dean. And you’re missing the point, to boot. It’s not the name of the course that counts, but what they teach. And American law schools are churning out hordes of brilliant young lawyers who can spot every issue, find every case, discuss every point—but who don’t have the common sense to know when an argument is a loser.

“Happened in my courtroom today,” he said. “Man is suing a railroad, and his lawyer offers a photo of the same kind of locomotive that hit the man’s car. Demonstrative evidence. Then the defense lawyer—a young man from one of the big firms, probably was a law review editor in school—jumps up and objects that the photo is not the best evidence.”

“He wanted the plaintiff to introduce the actual locomotive into evidence, eh?” I said. “Well, at least he has a sense of humor, which is more than I can say for a lot of judges.”

“Humor?” said Judge Wallop. “If he would have cracked a smile, winked or even looked out the corner of his eye, I would have given him a prize. But no, he was serious. Pulled out the rules and read them to me. Turns out he thought that because the railroad’s name was on the side of the locomotive, the locomotive must be a ‘writing’ under the rules of evidence.

“Yes, sir,” said Wallop, “I blame the law schools. They teach these kids every possible argument in the world, but don’t teach them to shut up when the argument can’t pass the giggle test.”

“The giggle test?” I said.

“The giggle test,” said the judge. “A fundamental rule of advocacy. Never make any argument unless you can say it with a straight face.”

Continue reading “No Laughing Matter: Failing the Giggle Test Might Leave You Crying” online in the November ABA Journal.

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