An article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury. The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea? Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along. But when, if ever, is it appropriate for counsel to inject levity into the courtroom?
I think some humor can serve two useful purposes. First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake. Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit. The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny). An intentional joke can fall flat or, worse, offend. That said, here are my thoughts on the uses of humor in the courtroom:
1. It’s not appropriate when it’s not appropriate. This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone. So steer clear. Don’t even try it. There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok. (“What, I’m paying you $1,000 an hour and you’re making jokes?”)
2. Take your cue from the judge. The judge always sets the tone of the courtroom. If the judge makes a funny, then humor may be acceptable in his or her courtroom. Pay attention to whether the judge allows humor when jurors are present. Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.
3. Know when to stop. Here, again, we need to exercise our judgment and some of us don’t have any. So, to be safe, stop while you’re ahead. If something you said elicits a chuckle, leave it there. Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom. The stakes are too high and I don’t want to risk it. When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done. People seem to appreciate humility.
So . . . in my view, using humor in the courtroom is a mixed bag. I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself. What do you think?