Pick the Right Fight

  1. According to James McElhaney, you need to pick the right fight. James McElhaney, McElhaney’s Trial Notebook 11 (4th ed. 2005). Concede the obvious. You damage your credibility when you don’t. If your command has done something wrong, concede that wrong and see if you can settle on a remedy. If you can’t, litigate the remedy.
  2. Don’t file frivolous motions. This is an ethical rule (AR 27-26, Rule 3.1) but also makes good trial sense. The rules don’t provide a good definition of frivolous, other than to say that an action is frivolous “if the client desires to have the action taken solely for the purpose of harassing or maliciously injuring a person or if the lawyer is unable to either make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for the extension, modification or reversal of existing law.” AR 27-26, Rule 3.1 Comment.

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