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Litigation News | 2023

Picking the Right Fight

James Willson McElhaney

Picking the Right Fight
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The following is an excerpt of Chapter 2 from McElhaney's Trial Notebook, 4th ed., modified for clarity.

Law school is not real life. Judges give you no extra credit for arguing every possible issue, and juries do not award prizes for "Best Oral Advocate." If you want to try cases to win, here are some principles that will help you pick the right fight.

The 30 Second Test

You want to be able to tell a basic story—using nothing but ordinary English—in thirty seconds. If you can do that, you have a handle on the case. The 30 second test is kind of like Dumbo’s magic feather. You know, the one that the crows said would make an elephant fly. It worked because Dumbo believed in it. The 30 second test works because you naturally believe in it. If you can comfortably explain a law suit in half a minute, you obviously have a good grasp on the case.

But the 30 second test does something that Dumbo’s feather never did. It forces you to make some critical decisions. You can’t just throw issues into the story because they are legal possibilities. To get to the point, when you can tell someone else what your case is all about—and do it in 30 seconds—you have to cull through all kinds of legal and factual clutter to decide what really matters. You have to make up your mind which issues are essential and which actually hurt your case.

When you do that, you are settling on the theory of your case. You are determining what is worth going to battle over. In other words, you are picking the right fight.

Telling the basic story again and again to as many people as you can is invaluable because it shows you where your soft spots are—where you need more facts, where the biggest dangers lie, and where the unmade decisions are waiting for you. One of the biggest mistakes you can make is to keep every possible issue—especially in a case of any complexity. You want to pick your fights carefully. You draw a line in the sand on an issue only when you’ve got a good chance of winning it. Otherwise give it up—take it out of the case.

That runs entirely counter to everything in modern legal education. You’re supposed to spot every issue—identify and articulate every possible argument. I mean the whole process is to throw everything you can find against the wall and see what sticks. The more you throw, the more is going to stick.

Concede the Obvious

When Sears and Roebuck stipulated that they were liable, the plaintiff’s lawyer was overjoyed. She represented a man who had been injured in a single car accident after having his car worked on at Sears.

Sears had tuned up the plaintiff’s engine and rotated his tires. But they had forgotten to put the lug nuts on the left front wheel. So when the plaintiff was going about 50 mph shortly after pulling out of the Sears garage, his left front wheel went offon a frolic of its own—leaving his car to spin around in a shower of sparks and slam into a telephone pole.

Sears could have tried to argue they didn’t do it, or that the plaintiff should have inspected his car before driving off.

But they didn’t. They admitted it was their fault—leaving only one issue in the case: whether the plaintiff was really trying to get money for a pre-existing injury that he had concealed from everybody, including his own lawyer.

That’s exactly what the jury thought was happening.

Do Not Exaggerate

Overstatement creates a burden of proof you cannot meet. When you claim that the defendant deliberately ran his truck into the rear-end of the plaintiff’s car, you’d better be able to deliver, otherwise it will give your entire case a somewhat doubtful odor. And why charge the other side with lying if it isn’t an essential part of your cause? If the jury thinks your opponent’s misstatement was an honest mistake, your case is in trouble.

Be Plausible

Every time the facts in your case run counter to common understanding, you have an uphill battle. If there is an issue in your case that asks the judge or jury to believe something that is inconsistent with their life experiences, get rid of it if you can. If it is a battle you have to fight, figure out some way to show the judge and jury why this situation is different.

Plausibility is a guide that some plaintiffs’ lawyers forget, especially when it comes to damages. The dead husband who was perfect in every way is simply not as believable as the man who sometimes forgot to help with the dishes, but who sold his fishing boat when Sally needed braces.

Be Consistent

Here is where the big picture—the 30 second test—really helps. Facts and arguments not only have to fit the judge and jury’s life experiences, they have to fit the case. When they don’t mesh with the big story, something is wrong.

Don’t Argue What You Don’t Believe

Craig Spangenberg of Cleveland, Ohio, used to say, if you don’t believe in your case, you can’t argue it convincingly to anyone else. That idea is part of Spangenberg’s carefully developed analysis of how people look at lawyers.

“Judges and juries believe that the lawyers know the truth about the case,” says Spangenberg. “In fact, they believe we know more than we actually do. They watch us for signs that will show who is telling the truth. Persuasive lawyers exude a personal belief in their case.”

Spangenberg was right. If you don’t believe in your case, it will show.