JDs Rising

It is hard enough to find the right joke for a particular occasion. It is almost impossible to find one that is appropriate for a courtroom. The United States Supreme Court’s Guide for Counsel specifically warns that “[a]ttempts at humor usually fall flat.” In an infamous example from the oral argument for Roe v. Wade, the assistant state attorney general for the State of Texas (who was arguing against two women lawyers) began his argument as follows:

Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.

The attorney’s comment was met with awkward silence, and Chief Justice Warren Burger reportedly scowled in response. Citing that example, language guru Bryan Garner and Justice Antonin Scalia, in their 2008 book on advocacy, advise attorneys to never tell a planned joke in court.

Occasionally humor can be used appropriately and effectively in a courtroom. In a 2010 article in the Communications Law Review, Ryan Malphurs studied the role of humor in Supreme Court oral arguments. While the study focused on humor originating from the justices themselves, Malphurs also noted a number of instances were humor was effectively used by advocates before the court. Note that each example in Malphurs’ study was unscripted, and many were self-deprecating comments directed at the lawyer’s own mistake. Almost all of the examples came from experienced Supreme Court advocates who had deep familiarity with the court.

But even unscripted humor is risky, according to Garner and Scalia. The problem is that many people who think they are funny are not funny, and even fewer lack the requisite timing and wit to pull off a joke during a tense hearing or trial. Bottom line: it’s better not to risk it, especially as a new lawyer.