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.