Ten Commandments of Courtroom Humor

I have advocated (Lizards Don’t Laugh) getting jurors laughing to get them out of their lizard brains and make them less likely to convict. Conventional courtroom wisdom is that a laughing jury does not convict. But humor in the criminal trial has to come with some rules.  Herewith, ten commandments for humor in the courtroom.

I

Thou shalt probably not. This is a maneuver to be attempted only by trained professionals, if at all. At a bare minimum, you must have technique to burn, and be comfortable in your own skin in trial, before trying to deploy humor.  If you are a new lawyer, both conditions are unsatisfied. You may think they are satisfied, but you’re wrong. If you’re an experienced lawyer and you think you can’t pull it off, you’re right. If you’re an experienced lawyer and you are sure you can pull it off, read on.

II

If thou must do it, thou shalt not script it. Stand-up comedy looks easy, but it’s an art and a science that we don’t learn in law school. The humor that works in the courtroom is that which points the jury toward the absurdity that already exists there. It is, by its very nature, unscripted and improvisational.

III

If thou art tempted, despite my best advice, to script it, thou shalt try it out first on people who care enough to tell thee that thou’rt contemplating being an idiot. Civilians who give speeches are taught to open with a joke. This is not generally a good practice for a venue where someone’s life is on the line. A joke may be funny in the conference room, but that doesn’t mean it will be funny in the courtroom. So we all need people—lawyers who are less impressed with us than we are with ourselves—we can trust to tell us we’re about to screw up.

IV

Thou shalt not force it. If the jury didn’t laugh, it wasn’t funny. Don’t laugh at your own jokes. If the jury laughs, the only reward you are permitted is that you may smile in gratitude that they aren’t yet throwing rotten fruit.

V

Thou shalt know thine audience. If you have a wisecracking jury, you have more slack than if your jurors are all somber. And your jury is all that matters—everyone else in the courtroom might think you’re the funniest lawyer in the history of funny lawyers, but if the jury isn’t in the mood, you’re dead.

VI

Thou shalt know thine case. The threshold for humor in a two-day DWI trial where your client is facing probation is very different from that in a two-week murder trial where your client has killed someone and is facing pen time. Jurors want to see lawyers taking the case appropriately seriously. It makes them feel that their time is valued.

VII

There beeth but one proper target for thy humor in the courtroom: thyself. Don’t take yourself seriously (this is my Seventeenth Rule for Better Jury Selection; it is not to say “don’t take your job seriously”). At least until you are deep into the trial you don’t have license to poke fun at anyone but yourself. Even when you have such license, the judge, the jury, your client, and opposing counsel are strictly off-limits because humor directed against any of them is either meanspirited or untrue. You may find that the jury naturally finds humor in a situation or a witness, and think that you have license to play off that humor, but doing so is pandering. So absent truly extraordinary circumstances the only acceptable butt of your jokes is you.

VIII

Thou shalt never apologize, nor shalt thou explain. If you have to apologize or explain, you shouldn’t have done it in the beginning. If you have to beg forgiveness beforehand, that is a warning sign from your brain that you should probably be listening to. The time to get the jury to commit to not holding your missteps against your client is during jury selection. Apologizing and explaining kill jokes. Besides, you’re a criminal-defense lawyer, and so you have no shame.

IX

Thou shalt restrain thyself. Criminal lawyers of all stripes, including those on the Crown’s side of the courtroom, tend to have a sense of humor that shocks and horrifies ordinary people. If you didn’t come to the law slightly off-kilter, you probably got that way as a coping mechanism. Tone it down, keep it clean. Americans have weird hangups about sex, dead bodies, drugs, and combinations thereof. Think of someone you know who doesn’t share your sense of humor in the least, and don’t say anything that would offend him.

X

Thou shalt remember that this is for posterity. If things don’t go well for your client someone is going to be grading your work on direct appeal and habeas. Consider, before trying to be a funny guy, how it’s going to look on paper and how you’re going to feel trying to justify it if your client is convicted.

With those commandments in mind, watch Mr. West breaking at least six of them:

 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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17 Responses to Ten Commandments of Courtroom Humor

  1. Wendy says:

    Excellent points. And good lord, that clip is PAINFUL to watch. Oy.

  2. Mark's Dad says:

    West acquitted himself somewhat today with his cross of the state’s star witness.

  3. Anna Durbin says:

    Excellent!

  4. Leo says:

    I made a joke in a mock trial once when I was a 2L. I learned my mistake then.

    Here’s another for him:

    Q. Knock knock.

    A. Who’s there?

    Q. Ineffective Assistance of Counsel.

    A. Shit, are we in Court? I thought this was open mic night.

  5. Mark's Dad says:

    True, Mark, but he is working on that better today than yesterday.

  6. Mike Trent says:

    These are very good points and all too true. The one that jumps out to me is VII. I recall one time during jury selection that a particularly obnoxious jury panelist gave me the perfect opening to make him the butt of a pretty funny but unkind remark and I went ahead and took it. Almost the entire panel laughed, and the guy was humiliated (some would say justly)…BUT…I could sense a change in the panel after it sank in. I had gone after one of THEM. The big bad lawyer had a made a joke at the expense of the citizen doing his civic duty. It put a chill on things and it took a lot of damage control to rebuild the trust and rapport I had been trying to establish.

    On the other hand, the times I have been willing to use self-deprecating humor, jurors always seem to eat it up. I guess they are so used to egotistical lawyers who take themselves too seriously that it is surprising and refreshing to them. It is a great way to humanize yourself with the jury and build credibility.

    Excellent advice, Mark, and thank you.

  7. Richard Alpert says:

    I agree with all your points but have found the premise underlying it to be wrong. Not only have I found laughing jurors will convict but I find they punish as well. Laughter (brought on by conduct that follows the rules you list) cuts the tension in a serious case. Tension causes jurors (in my opinion) to close up and not interact with each other. Loud laughter coming through the door of a deliberation room is music to my ears. It is shouting that scares me. I think those who speak at seminars should also pay heed to Mark’s words. Nothing cripples a talk quicker than a joke that is in bad taste or falls flat.

  8. Michael Stuart says:

    Ow, ow ow ow OW! I am experiencing such severe embarrassment on West’s behalf it’s causing actual physical pain. I’m cringing so hard it looks like rigor mortis.

    Interesting post Mark, even for the honestly employed non-lawyers among us.

  9. Michael Stuart says:

    Given the star witness’ enfeeblements, though, even I could have cross-examined her successfully.

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  11. Yuval Karmi says:

    Seriously?? I can so see what you mean by “think about what’s it going to look like on paper.” I’m tempted to say this guy is an idiot… But then again, maybe he is just really, very misguided (contact him and link it to this blog post?*Facepalm*). By the way, you mention a bunch of things here that are just basic rules of humor… Always consider the triangle — all sides have to connect: material, performer, audience. And a jury is one hell of a tough audience to work with. I’m curious whether you personally use humor in the courtroom or not…?

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  14. Iain Simpson says:

    Wow. I had heard of it but hadn’t actually seen the clip until now. Even if I hadn’t read your Commandments, my first thought was, if you have to apologize for it this much in advance, you shouldn’t do it.

  15. James Reilly says:

    Funny post and great advice. In my experience, courtroom humor in criminal cases is generally ill-advised and does not go over well with the jury. Almost all criminal cases are far too serious for a joke to be deemed appropriate. I think West at the Zimmerman trial is a perfect example.

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