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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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: