THE GIGGLE TESTAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 74, No. 10 (OCTOBER 1, 1988), pp. 90, 92Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760159 .

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Litigation

THE GIGGLE TEST BY JAMES W. McELHANEY

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 profession als, 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 de partments 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 settle ment, 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 that matters. 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 to day," he said. "Man is suing a rail road, and his lawyer offers a photo of the same kind of locomotive that hit the man's car. Demonstrative evi

dence. Then the defense lawyer, young man from one of the big firms probably was a law review editor jumps up and objects that the photo is not the best evidence."

"He wanted the plaintiff to in troduce the actual locomotive into evidence, eh? Well, at least he has a sense of humor," I said, "which is

more than I can say for a lot of judges."

"Humor? If he would have cracked a smile, winked or even

looked out of 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 loco motive, the locomotive must be a 'writing' under the rules of evidence.

"Yes sir," Wallop said, "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 asked. "The giggle test," he said. "Fun

damental rule of advocacy. Never make any argument unless you can say it with a straight face."

Giggle test, smirk test, straight face test all are different names for the same point. It is not enough that an argument makes legal sense. It has to be factually and emotionally plau sible as well. Otherwise, it is a loser.

Of course there are plenty of ar guments made every day that do not even make legal sense. In a recent hearing in Washington, D.C., a labor

union intervening in a case wanted to show some of the problems that workers were encountering in a man ufacturing plant. But instead of call ing the workers to testify, they called a union representative who had gone to the plant and interviewed some of the workers.

When the union representative was asked what the workers told him, the other side objected to hearsay.

Without batting an eye, the union lawyer said, "That's not hearsay, your honor, he heard it himself."

PIVI LOSERS Failing the giggle test is one of

five ways to lose an argument: Overstate the facts in your fa

vor.

Conceal some fact that hurts you.

Misstate the law. Ignore the issues.

Make an argument that does not pass the giggle test.

Of course there are more than five ways to lose an argument, but these have a special destructive power

James W. McElhaney, the Jo seph C. Hostetier Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law} is a senior editor and col umnist for Litigation, the journal of the Section of Litigation.

90 ABA JOURNAL / OCTOBER 1, 1988

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92 ABA JOURNAL / OCTOBER 1, 1988

Litigation

that goes beyond the argument. In the right situation, doing any of these things can cost you the entire case.

That is because every one of them is tied to your credibility as an advocate.

Overstate the facts and it looks like you do not believe in your case. Try to hide a damaging fact and it looks like you think it makes your case a loser. Misstate the law and the judge cannot trust your arguments. Ignore the issues and you cannot be counted on to guide the fact-finders to the right questions, much less the right answers. Make an argument that flunks the giggle test and your judg

ment is suspect, which clouds all your other arguments.

Look at it this way. Your credi bility is the most important issue in any case you try. Every fact you prove, every point you make depends on your credibility, and one way to undercut your credibility is to make an argument that does not pass the giggle test.

Even if you have some marvel ous arguments, mixing them with frivolous points can offend the most sophisticated court. In Timken Roller Bearing Co. v. United States, 341 U.S. 593 (1951), the court was infuriated with an appeal that was based on 206 assignments of error.

"These assignments are unduly repetitious, some are frivolous, and the excessive number obscures the actual grounds on which appellant relies for reversal. As the Govern

ment pointed out in its motion to dis miss the appeal, our prior cases justify dismissal in such situations."

Only a responsive brief that "sufficiently spelled out the few real objections" saved the case from being dismissed.

If you think you are immune from this, watch out. Even the finest lawyers occasionally make silly ar guments. Just as Sir Edmond Hillary climbed Mount Everest "because it was there," there are times when you will be tempted to make an argument because it is available.

BLINDING LIGHT Sudden inspiration can be an

other trap. The stroke of brilliance that lights up the mind in the middle of the night can be an utter embar rassment in front of the jury the next day. That is the reason for using the

giggle test. Actually saying the argu ment out loud at home or in the of fice before you say it in court is a good way to stay out of trouble.

Even more dangerous is the piercing shaft of light that comes in the middle of trial. It is dangerous be cause you do not have a chance to test the idea before you use it. You know you ought to leave it alone, but it looks so attractive that you cannot resist trying it. That is what hap pened just weeks ago to no less a law yer than Jo Ann Harris of New York.

Harris was representing a woman charged with murdering her hus band with a kitchen knife. The case was tried to the judge, and from the start the defense theory was that all the surrounding emotions and ac tions made the case manslaughter in stead of murder.

But something happened when the medical examiner took the stand for the state. He testified that it took a considerable amount of deliberate force to drive the knife 6 inches into the victim's body.

So on cross-examination, Harris tried to get the medical examiner to admit that falling on the knife could have driven it 6 inches into the vic tim's body. But when she looked over at the bench, she saw both the judge and his clerk wincing in agony, dis tressed to see her suddenly grab at another theory in the middle of trial.

Harris knew she had to do some thing to regain her credibility; leav ing things as they were would not be enough. She got her chance on final argument. She explained that the de fense was manslaughter, and that she was making no claim of accidental death. Under the circumstances, she said, the only relevance to falling on the knife was to show that just that slight amount of force nothing su perhuman was all it took to drive the knife into the body.

Lawyers are not the only ones who need a giggle test. There is one for judges, too. It happened in North Carolina a few months ago. The judge ruled against the plaintiff, no matter what the issue was. Finally the plain tiff's lawyer approached the bench and said, "Your honor, may I have the basis for the court's ruling?"

The judge replied, "Why? If I tell you, you'll just appeal."

It sounds like the right thing to do.

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