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74 A.B.A. J. 90 (1988)
The Giggle Test

handle is hein.journals/abaj74 and id is 1420 raw text is: Litigation1 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 James W. McElhaney, the Jo- seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law, is a senior editorand col- umnist for Litigation, the journal of the Section of Litigation. 90 ABA JOURNAL / OCTOBER 1, 1988 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, FIVE LOSERS Failing the giggle test is one of five ways to lose an argument: Overstate the facts in your fa- vor. 0 Conceal some fact that hurts you. 0 Misstate the law. 0 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

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