Using humor in the courtroom

The other day I saw a blog post about the “8 worst courtroom jokes,” which is worth reading even though the author thinks there is little place in a courtroom for humor.

I respectfully disagree.  There is nothing inherently wrong when an attorney makes a joke in open court. It just has to be done carefully.

Obviously, this became a subject of debate after the defense attorney in the Zimmerman case began his opening argument with a “knock knock” joke (“Zimmerman who?”  “Okay, you are good for the jury.” da-dum) – a joke that was universally panned, even if it didn’t cost him the case.

If you are going to use humor in the courtroom, you have to be aware of the appropriateness of a joke in that situation, who is your audience, and how receptive will they be to that joke.

Beginning a speech with a joke is a long-standing tradition.  It can break the ice, get the audience in a receptive mood, and get them on your side.  And I have heard criminal defense attorneys say that “a smiling jury is good for the defense.”  So why aren’t defense attorneys taught to begin their opening statements with a joke?

We can start off with the fact that a defense attorney makes his or her opening statement after the prosecution.  The prosecutor gets to set a mood.  In a violent crime case, that mood will likely be emotional, sad and angry.

Clearing the atmosphere of this emotional state is a must for a defense attorney.  But it has to be done carefully.  The jury’s first impression at the beginning of the trial will often decide how they will view evidence from that point out.  If, after hearing opening statements they find themselves favoring one side, they will begin to look at each piece of evidence in terms of how it helps prove that side’s case.  Evidence that doesn’t fit that side’s theory of the case might be mentally doubted or discredited.

In this situation, the right joke could lighten the mood, diminish the state’s opening statement, and get the jurors in a more receptive state of mind.  But, the wrong joke could inflame a jury against the defense, and close their mind against it, because it may come across as an indication of the defendant’s lack of remorse or sympathy for the victim.  So tread carefully.  This is why most trial attorneys avoid jokes and instead begin their opening statement with an attempt to re-frame the narrative with the defense’s theory of the case.

Over the years, I have been in lots of courtrooms where the judge appreciates (or makes) a good joke.  That is the way some courtrooms are.  But not all courtrooms.  I have also seen judges snap at attorneys for minor transgressions.  For example, one time I saw a judge take down an attorney for referring to the parties pre-trial maneuvering as part of the “game” (“Counsel, this is not a game!”).   Attorneys have to be careful of each word they use in court, and be mindful of the reaction they might trigger with the wrong phrase or comment.

Another problem I find is that some trial attorneys lose their sense of perspective.  Because they deal with the worst side of people on a daily basis, they develop a form of gallows humor.  As a result, there is a tendency to make all sorts of inappropriate jokes that might get an appreciative audience from a fellow attorney (maybe),  but not from victims of crime or a jury panel.   The Zimmerman “knock knock” joke is the type of “joke” that might’ve gotten a laugh from the judge and prosecutor during a private conference in chambers, but was not appropriate in front of a jury.

Of course, when trying a case before a jury, one of an attorney’s main goals should be to try to get the jury to like you.  When done right, a joke can help in this area.  But when done wrong, a joke can truly backfire.  This was the cardinal sin of the Zimmerman “knock knock” joke – don’t zing your jury!

Simply stated, humor in the courtroom can be a valuable tool in an attorney’s arsenal, so long as he or she is always aware of his or her audience.

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