“Funny” is not what generally springs to mind when describing Supreme Court Justice Antonin Scalia. But in 2005, The New York Times reported results from a study by Boston University Law Professor Jay D. Wexler, who found Justice Scalia was the funniest justice. This study looked at the notation for laughter in court transcripts and found Justice Scalia to be 19 times funnier than Justice Ruth Bader Ginsberg.
The irony is that in May, Justice Scalia told the American Bar Association Journal that humor should not be risked in the courtroom by either lawyer or judge. According to Justice Scalia, there are people who are funny — then there are lawyers. In brightly lit courtrooms, attorneys trying to incorporate humor into their cases fumble over their words about as often as they fumble through papers. If that fumble costs an attorney his or her credibility, then the loss is potentially substantial.
Humor in the courtroom is difficult to navigate. Lawyers know it is a problem when courtroom humor fails, but there is often still the inclination to try and sometimes an inability to prevent it.
Risky Business
From Plato to Arthur Schopenhauer, people have always been interested in what makes humor work, what it is, why we have it and how we share it. E.B. White said, “Humor can be dissected as a frog can, but the thing dies in the process.” Nonetheless, dissection is needed to understand why humor in the courtroom is such a risky venture.
Many attorneys think they are funny. They amuse other attorneys in their office or their mates. Why would they not be funny to a jury? One reason is that humor is a form of communication based much in the common understanding of the speaker and the audience.
An attorney has intimate familiarity with his or her case, which the jury or a judge might not have. This familiarity often makes an attorney believe that the jury already understands what the attorney understands, has processed the facts and therefore can see some humor within the facts. This is not always true. Humor on a subtle point may not be appropriate because the jury or the judge has not had as much time with the subject matter needed to find the joke funny.
No attorney is going to start opening statements in a slip-and-fall case by saying, “Have you heard the one about the sidewalk? It’s all over town.” Courtroom humor tends to be more subtle, although usually not much better. People can feel alienated when the person next to them laughs and they do not understand the joke because of its subtlety.
Alienating the trier of fact is the last thing an attorney wants. Attorneys who use humor too freely also run the risk of being seen as not sufficiently sympathetic to the gravity of the suit before the court. Regardless of these risks, attorneys still use humor in the courtroom because there is value in humor.
Humor’s Value
Humor effectively provides sudden relief from tense situations. By all accounts, trials are tense. People laugh or find amusement when removed from these tense circumstances and may appreciate the one who removes them. In advocacy, it is important that the trier of fact trust, maybe even like, the advocate. The proper release from tension goes a long way for both the advocate and the trier of fact.
For instance, recently a Seattle attorney walked into a courtroom for a summary judgment motion. With him he carried an 8x11½-inch exhibit. As he entered the courtroom, he realized that opposing counsel had the same exhibit, only the size of a large poster. “My exhibit feels inadequate,” the attorney said. Outside of the courtroom, this statement is only marginally funny, but at that moment it released some of the tension inherent in beginning arguments before the court.
Another example comes from an attorney who had a medical malpractice trial in a Kent courtroom. It was almost 4 p.m. on the Thursday before the court recessed for the weekend. She was examining her physician expert witness. Suddenly her mind went blank and every question she could think to ask was suddenly washed from her mind. “The silence was uncomfortably long,” this local attorney said. “And all I could think to do was turn to the jury and say, ‘It’s been a long week.’” And that is just what she did. Again, the humor was not the styling to be seen on “The Daily Show,” but it removed some tension and was appreciated by the court.
Never Use Humor at Another’s Expense
If there is a cardinal rule about the use of humor in the courtroom, it should be to never use humor at anyone else’s expense. Some humor may have no one as the brunt, but if there is any doubt, do not risk it. Making fun of someone or something else can easily be interpreted as arrogance, one-upmanship or as any of a number of other negative attributes for the lawyer. Even making fun of some inanimate objects can backfire, making the lawyer look as if he or she is complaining or making excuses.
The safest brunt of any joke is yourself. While this might be interpreted as disingenuous, especially if it is obviously inappropriately self-demeaning, it probably will not be interpreted as snide, arrogant or hostile. But a spontaneous, mildly self-deprecating comment that is germane (and not a distraction) may be the closest thing to safe humor in the courtroom.
Reacting to Humor by Others
Strangely, everyone seems to laugh at the judge’s jokes. This is presumably because the judge knows his or her audience and only cracks jokes with the audience in mind. Not everyone in the courtroom is as lucky. Do not fear being upstaged by another attorney who is using humor. If the judge and jury are laughing, it is okay to laugh along. Be careful about laughing by yourself. This also may be misinterpreted.
Before you start searching the Supreme Court transcripts for bits of humor to copy, the study performed by Prof. Wexler is not without its flaws. The New York Times reported that the study did not account for degrees of laughter, the small chuckle vs. the heavy roll of laughter. But last year, in a Yale Law Journal Pocket Part, Prof. Wexler provided an update. Justice Scalia remains the “funniest” justice, but the court reporter has recently started quantifying the [laughter] notation with notations such as [“a little laughter”].
Let Someone Else Read Briefs With Humor
Any given footnote of an attorney’s brief may be funny to that attorney, but it may be unappealing to the reader. Written humor is different from oral humor. For instance, sarcasm is harder to absorb in the written form because it is delivered without tone and the non-verbal cues to signal the second meaning. This is not to say that humor can never be used in briefing, but rather to say that when it is used, it should be used cautiously.
Attorneys should allow others in their firm to read written humor and comment before it is submitted. It also may be of value to let assistants review the briefing as well to see if they get the joke and to make sure that the joke adds something to the advocacy. If anyone does not see the humor, remove it. If anyone wonders why it is necessary, remove it.
Keep Your Perspective
Humor may be an end in itself in many environments, but not usually in the courtroom. We are usually in the courtroom on serious business. Too much humor or inappropriate humor will hurt the advocate’s credibility. It can even hurt the judge’s credibility.
Spontaneous humor with no victim or target (other than yourself), that is in good taste and follows these rules can be appreciated and can assist your presentation. Remember, the audience is human, also. They appreciate the break when it is done right. Also remember that the laughs that come from our oral arguments and/or trials do not get us into The New York Times, as they do for Justice Scalia. Attorneys should not overuse their wit.
Jamila A. Johnson and Christopher H. Howard are attorneys in the Seattle office of the regional law firm Schwabe, Williamson & Wyatt. Johnson can be reached at 206-407-1555 or jajohnson@schwabe.com. Howard can be reached at 206-407-1524 or choward@schwabe.com.
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