Humor is a funny thing.
A joke that works so well out of one person’s mouth can crash and burn out of another’s. That same joke can cause hysterical laughter in one situation and groans of annoyance or gasps of affront in another. Content, person, delivery, circumstance, audience – it’s a tough set of variables to juggle in a courtroom setting.
Here’s a cautionary tale we witnessed first-hand: Plaintiff counsel came in quite late to a Los Angeles court one morning at the end of a month-long trial. The full jury was already seated, and was being read the jury instructions. Counsel says, “You’d think after a month I’d be used to LA traffic!”
The comment might have gotten a few chuckles (maybe) under different circumstances, but this jury just stared, very much unamused. Counsel’s cutesy attempt to relate to the audience and excuse his tardiness wasn’t going to fly in a situation with tired, waiting jurors, many of whom had arrived (on time) from quite a bit farther away.
Now, sometimes unintended humor happens as part of the extemporaneous discourse, and that’s natural; that’s not what we’re talking about here. Instead, for those planning to use humor in the courtroom, or whose instinct is to crack an offhand joke, let’s first consider the following uses and pitfalls:
Can Humor Build Rapport with the Jury?
The above attorney’s attempt at humor backfired. His blunder is demonstrative of the fact that attorneys, as well as witnesses, are often tempted to use humor in the courtroom to help break the tension. But a trial is serious – nothing funny about it. Using humor in that way shows your vulnerability. It shows you don’t feel comfortable. To jurors, if you aren’t comfortable, you aren’t confident in your case.
And yet, it is widely recognized that humor can be an effective communication tool. In Communication Quarterly, authors Melissa Wanzer, Melanie Booth-Butterfield, and Steven Booth-Butterfield note that humor can be used to establish rapport, save face, and persuade the audience.1 Done right, an attorney can come off as charming, relatable, and prepared.
In fact, studies have shown attorneys who can effectively harness humor tend to be especially persuasive. For instance, in The International Journal of Humor Research, Pamela Hobbs observes that humor can be “a potent weapon in an attorney’s arsenal” as it allows an attorney to depict a plaintiff’s claims as “laughable and unworthy of serious consideration, while placing themselves at the center of a comic performance which allows them to display their linguistic skills.”2
That said, remember a trial is not a stage; it is a serious formal setting. Therefore, it is all about context – the wrong humor can offend a jury and damage your rapport.
Context Is Everything
Probably the most important thing to remember when considering the use of humor in the courtroom is context. Many of the cases Litigation Insights assists with involve claims of serious personal injury or death. In these cases, jurors will find it inappropriate, if not appalling, for an attorney to crack a joke.
One might think this goes without saying, but you’d be surprised. It’s not uncommon for an attorney to spend many years working on a particular case. This time and intense focus often inure an attorney to the greater tragedies involved. This is especially true in cases where the attorney believes the extent of the plaintiff’s illness or injury is being exaggerated. However, keep in mind that jurors are not familiar with the case, so appearing to make light of the situation can come across as cruel and tone-deaf.
Know Your Audience
A joke that is funny to one person may not be funny to another. And offending one or more of your jurors won’t help build rapport.
During one voir dire, a lawyer was following up with a potential juror who had said she would “try to be fair.” The lawyer, attempting to pin this juror down, made the following analogy: “If I was going on a boys’ trip to Vegas, and I told my wife I’d ‘try’ to be faithful, do you think she’d let me go on that trip? So we need more than just try. Can you do it?”
This analogy elicited a hearty round of laughter from most of the people in the courtroom, but not everyone thought it was so funny. In fact, during the post-trial interviews we conducted, one juror still remembered this exchange and noted it to the interviewer. According to this juror, it was completely inappropriate for the attorney to joke about adultery.
Are You Funny? … Are You Sure?
One of the more notable examples of humor falling flat came in the defense opening statement in the George Zimmerman trial. Most will recall that Zimmerman was on trial in 2013 for shooting Trayvon Martin. Zimmerman’s attorney, Don West, began his opening statement with a knock-knock joke:
“Knock, knock. Who’s there? George Zimmerman. George Zimmerman who? Ah good, you’re on the jury.”
Regardless of whether this joke was inherently funny (debatable), any potential for humor was wrung out of it by the exceptionally poor delivery of the attorney. He even apologized for it later. One could also argue that a trial over the tragic shooting of a kid was not the best place for playground-style humor. There’s that context again.
This example leads us to an important point: Some people are not funny. Moreover, it is difficult for people to realize or admit they aren’t funny. So before attempting to employ humor in the courtroom, an attorney must be willing to reach out for an honest assessment of his or her comedic skills and, just as importantly, to accept the results.
Using humor in the courtroom is a potentially rewarding strategy, but as you can see, it carries many risks. You could end up charming the jurors, or completely alienating them. Whether the rewards outweigh the risks depends on the details of each individual case and the comedic abilities of each individual attorney. Remember, context is key. Ultimately, we’d say that if you have even the slightest doubt, it’s safer to skip the humor and focus purely on presenting your case.
By: Katrina Cook, Ph.D. – Consultant
1 Wanzer, M., Booth–Butterfield, M., and Booth–Butterfield, S. (1995). “The funny people: A source-orientation to the communication of humor.” Communication Quarterly 43: 142–53.
2 Hobbs, P. (2007). “Lawyers’ use of humor as persuasion.” Humor – International Journal of Humor Research, 20(2): 123-156.