When, if ever, is it appropriate to use humour in a hearing? And what boundaries should lawyers respect?
This, my first slaw.ca post, has been a great opportunity to read a little, think a little and affirm my belief that humour is an important advocacy tool, though subtlety is the key to its successful use.
My interest in the subject of humour and advocacy began at an Advocate’s Society lunchtime session a few years ago. In debriefing a mock examination, one of our well-respected Superior Court judges took great exception to a flippant remark made by a witness. She turned her gaze to the audience of lawyers and warned us never to use humour in court. She was sobriety personified, and her warning stuck with me. I can still hear her words: “Ours is a very serious profession.”
Soon after, I attended an Ontario Bar Association dinner and sat with two labour arbitrators who had recently finished the Ministry of Labour’s arbitrator development program. There were a lot of laughs being shared at the table until I asked the humour and advocacy question. The tone of the discussion immediately settled down and both gave an unequivocal “no” answer. “Wow!” I thought. Using humour must be a pretty big no no if you can’t even ask about it without drawing near rebuke.
I found this all very disturbing. Jerry Seinfeld I am not, but I’ve always used humour instinctively in a wide range of communications. It serves as a wonderful way of building intimacy. Why should communication in a hearing be any different? So I ignored the warnings. I’ve since had my hits and misses, but never any disasters. But I’ve always questioned whether I’ve been playing by the rules.
The results of my quick internet search (all linked below) are good authority for the pro-humour view. U.S. Supreme Court justice Antonin Scalia has warned against the use of humour, but mainly as a matter of balancing the risks versus the potential for reward. And he does admit, “a very gentle and often self-deprecating remark can relieve the tension and make the exchange much more conversational and friendly.” Justice Scalia’s view has similarities to that taken by distinguished Roman orator Marcus Antonius Orator. Justin T. Gleeson describes Antonius’s position as follows:
Antonius engages in a detailed analysis of wit and the roles it plays in advocacy: it serves to win goodwill for the author; everyone admires acuteness which is often concentrated in a single word uttered either repelling or delivering attack; it shatters or obstructs or makes light of the opponent or alarms or repulses him; it shows the orator to be a man of finish, accomplishment and taste; and most of all it relieves dullness and tones down austerity. However, there are limits on the use of wit. The audience prefers more serious weapons to be applied to the wicket and dislikes mockery of the wretched. The orator can easily tip over into the buffoon with an inappropriate use of wit.
Antonius speaks of a more direct and aggressive use of humour, but his caution, like Justice Scalia’s, makes clear that we must be very conservative in our use of wit. There are boundaries, and those revealed in my short review of internet literature are remarkably consistent. They are:
1. Don’t plan jokes into your presentation. Planning doesn’t work.
2. Use humour sparingly. It can be a welcome break from the intensity of a hearing, but a hearing (particularly a court hearing) is a venue for serious communication about serious problems.
3. Use it in a manner that is respectful to the decision-maker or panel, the witnesses and your opponent.
4. Though self-deprecation is fine, don’t kill your credibility by joking about your lack of preparation or lack of knowledge. You’ll only have license to use humour if you can demonstrate these “table stakes” – the things you must bring to the table.
Inside of these boundaries, using humour in a hearing is an art. And I may be damned, but it’s a legitimate one in my view. Check out some of the great examples in the attached links and please comment with your own stories and opinions.
Defuse Juror Anger at Corporations With Humor, Michael D. Jones (May 2009, Texas Lawyer)
Rediscovering Rhetoric: Law, Language, and the Practice of Persuasion, Justin T. Gleeson, Ruth C. A. Higgins (2008, NSW Bar Association)
A Voice for the Write, Richard Brust (May 2008, ABA Journal)
A View From the Bench (June 2006, Lawyer 2 Lawyer podcast)
So, Guy Walks Up to the Bar, and Scalia Says…, Adam Liptak (December 2005, New York Times)
Humor in the Courtroom, Michael P. Kelly (Summer 2005, Delaware Lawyer)
A Serious Look at Humour in Litigation: What’s so funny? Laurie Kuslansky (Trial Graphix publication)
Humour in the Court is Serious Business, Jamila Johnson and Christopher Howard (King County Bar Association)