Chillin'Competition

A prominent practitioner once explained to me the usefulness of the “laugh test” (a.k.a. “red face test”) in our profession. He said that lawyers often have to defend arguments about which they are not very confident, but that there should be a limit to the “originality” of these arguments. According to him, this limit could only be drawn with the aid of the laugh test.

The practical instructions are easy: whenever you come up with what you fear to be a far-fetched argument, ask yourself the following question: will the addressee of the argument in question have a laugh when she/he reads it? If the answer is no, you may as well give it a try. If the answer is yes, then you´re better off keeping it to yourself.

Sounds easy, right? If you´d read some decisions and submissions that I´ve been reading this week you´d realize that not everyone applies the laugh test properly!

Since I can´t talk about the examples that are currently on my desk, I will refer to a case that´s being heard today in the U.S.  in which it appears legitimate to ask whether the laugh test has been applied or not.

Take a look at this piece (Price-fixing or good manners? Jury might decide) and reach your own conclusion 😉