With contributions from the late Katrina Cook, PhD
Humor is a funny thing. Ubiquitous, yet specific to each person. Capable of traversing borders and cultures and languages, yet highly dependent on context. Anyone can be humorous, but at some point, everyone will try and fail.
Successful attempts at humor require finding a delicate balance between variables like content, person, delivery, location, time, and audience. That is a lot of balls to juggle, yet a funny joke can quickly become a faux pas if any one of those variables fails to jive with the rest. And as much as an episode of Judge Judy might suggest otherwise, there are perhaps few places as difficult to incorporate humor as in a court of law. In our context of high-stakes jury trials, “finding the funny” is usually near the end of the to-do list.
This is not to say courtroom humor need be avoided without exception. Rather, we would like to discuss its potential uses, its very real risks, and the essential considerations attorneys should make before deciding to try their luck on the open mic.
Building Rapport with the Jury
The one potential benefit of using humor at trial—and what ought to be the singular goal—is to build rapport with the jury. As summarized in Human Relations by Dr. Cecily Cooper, humor is widely recognized as a vital social-communication tool, and the literature demonstrates that humor can build and strengthen relationships, even in more formal settings such as the workplace.1 Rapport aids credibility and influence, and building it right out of the gate is one reason we encourage clients to make use of available voir dire time to interact with the jury panel. Indeed, off-the-cuff humor during voir dire can be an excellent and natural way to establish rapport with jurors, particularly when it comes time to follow up individually with members of the panel.
Done well, humor might endear an attorney to jurors, making them seem relatable, familiar, charming, and confident; all good things when you are trying to make your client’s case. As one juror noted of defense counsel during a post-trial interview, “Her attempts at humor, they land very well. They were very heartfelt.” That juror rated the attorney as the most effective of the six attorneys in that trial. In the same interview, however, the juror went on to assess his favorite attorney’s co-counsel—and drew a stark contrast: “When he tried to tell jokes, it was quite cringey. He is not good at landing jokes, and it was off-putting. He needs more up-to-date references and better jokes.” So why did one gain rapport while the other fell flat?
Context Is Everything
The context must be right for any attempt at humor to have a chance at being funny, and certain contexts increase the odds that a joke will crash and burn. The courtroom is one of those contexts. Its adversarial nature means tensions run high. The format is rigid and formal. Criminal cases carry inherently serious subject matter, but civil cases often do too. Indeed, many of the cases we work on involve claims of severe personal injury or even death. It is not hard to understand why an attorney cracking a joke would seem inappropriate, if not appalling, in such contexts.
And while you might think this goes without saying, you would be surprised. One oft-cited example of humor gone wrong occurred during opening statements in the George Zimmerman trial back in 2013. As you may recall, Mr. Zimmerman was facing second-degree murder charges for the killing of Trayvon Martin. Don West, one of Zimmerman’s defense attorneys, 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.” No one laughed.
It’s understandable why some attorneys litigating serious cases might appear to forget or disregard the context and attempt to make a joke. Spending months or years intimately involved with the particulars of a grim fact pattern can inure attorneys to the greater tragedies involved. For some, humor might even serve as an adaptive coping mechanism for the stress that comes with emotionally burdensome topics. But attorneys at trial must always ask themselves, “Is this the right time and place for humor?”
Regardless of the questionable merits of Mr. West’s joke, he had also opted for a style of joke more commonly found on middle-school playgrounds—in his client’s murder trial for the tragic killing of a teenager. As it happened, Mr. West soon apologized for his “bad joke,” blaming his poor delivery and noting that he had believed the courtroom would be “the perfect audience.”
This brings us to our next point:
Understand Your Audience
There is good reason to believe that many jurors on the panel will not be receptive to jokes, regardless of how funny the jokes may be. First, jurors did not choose to be there. They were chosen, or rather, they were not de-selected. Even the small handful of jurors who are thrilled to fulfill their civic duty have been asked to step away from their lives for a vaguely estimated amount of time to help the attorneys and parties resolve a case that they (ostensibly) have no stake in. Imposition is not the most fertile soil for humor.
One demonstrative example that we witnessed first-hand involves a plaintiff’s attorney who arrived quite late to a Los Angeles court one morning, near the end of a month-long trial. The jury was seated and awaiting instructions from the judge. Upon arrival, the attorney remarked, “You’d think after a month I’d be used to LA traffic!” Perhaps the joke would have landed with a different audience, but the jury just stared. His attempt to relate and to make light of his tardiness did not fly with tired, impatient jurors, many of whom had arrived—on time—from much farther away.
Second, the odds are low that the entire jury will find a joke funny. The jury is intended to be a representative cross-section of the community, and depending on the venue, the venire will usually be comprised of various demographics, experiences, and attitudes. This variety is good for balancing biases, but it also means it is unlikely that all 6 to 12 seated jurors will share a similar sense of humor or the presenting attorney’s particular sense of humor.
During one voir dire, counsel was attempting to rehabilitate a juror who said she would “try to be fair.” The attorney, seeking a commitment to impartiality, 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 doit?” This analogy elicited a hearty round of laughter from many people in the courtroom, but not everyone thought it was funny. During post-trial interviews, one juror mentioned the exchange to the interviewer, indicating that they found it completely inappropriate for the attorney to joke about adultery. The lesson is that even jokes that land with most jurors are unlikely to land with all. And when the time comes for them to work through the verdict form, do you want to have deeply offended one or more of them?
Finally, unlike the lawyers, jurors are not familiar with the case. In more serious case types, much of what they hear and what the plaintiff claims might be shocking or unnerving. In openings, the likelihood of a defense attorney cracking a joke that offends is much higher if jurors have just heard the heart-wrenching tale of a plaintiff harmed by the defendant’s alleged negligence. The plaintiff may be exaggerating or malingering, but jurors do not know that yet, and any appearance of making light of the situation can come across as flippant and tone-deaf. (That can go double for attorneys who represent corporations. Many jurors arrive with varying degrees of anti-corporate bias, making a corporate advocate’s quips a lot less charming and a lot more “slick” and “insensitive.”)
Understanding the audience means appreciating the fact that whether something is funny depends more on the listener than the speaker—and many jurors make for a “tough crowd.”
Final Thoughts
Using humor in the courtroom has some possible rewards but many guaranteed risks. It could end up charming jurors or completely alienating them. Whether the rewards outweigh the risks depends on the details of the case, the immediate situation in which the joke is to be made, and of course, the comedic abilities of the attorney. Remember, context is key, and jurors did not buy tickets to this show. If there is even the slightest doubt, it is safer to stay focused on the case and save the jokes for back at the office.
References
1 Cooper, C. 2016. Elucidating the bonds of workplace humor: A relational process model. Human Relations, 61(8), 1087 – 1115. doi: 10.1177/0018726708094861
This article is an update to the original version first published by the late Dr. Katrina Cook on April 30, 2019
