By Dr. Ken Broda Bahm:
In the ongoing trial of George Zimmerman, the surprises were in evidence from the very first moments of opening statements. Prosecutor John Guy raised some eyebrows by, quoting the dispatch conversation, dropping the F-bomb as the third word in his opening statement (the first two words were “Good Morning”). But it was the first moments of the Defense opening that passed the eyebrow raising stage and went on to straight out incredulity. Defense attorney Don West began with a knock-knock joke:
Knock knock.
Who is there?
George Zimmerman.
George Zimmerman who?
All right, good. You’re on the jury.
It was met with absolute stone-faced silence from the jury, so much so that West had to follow it up with “Nothing?” and clarify his purpose by adding “That’s funny.” Not to most observers it wasn’t. As Florida criminal defense attorney Randy McClean shared with Huffington Post, “If you’re defending your client for second-degree murder, you probably shouldn’t start out your opening with a joke.” Harvard law professor Alan Dershowitz went further saying he was stunned: “This is a murder case,” he said, “The victim’s family is sitting in the courtroom with tears in their eyes and he’s telling a knock-knock joke? I just don’t get it.” In addition to the sense of incongruity as it was told and the fact that it fell flat in the telling, there is also the substance of the joke: a kind of veiled insult to the entire jury panel for knowing nothing about the case.
There is a lesson in this example that extends beyond the joke and the Zimmerman case. That lesson is that attorneys should proceed with extraordinary care on the subject of comedy. While public speakers often feel the need to build a bond or break tension through planned humor, the use of intentional jokes can carry a big risk in the formal setting of a courtroom. Perhaps surprisingly, the subject of attorney humor (note: I’m talking about jokes by lawyers and not about lawyers) has actually been the subject of some commentary and even research. This post will take a look at why it is a risk and share a few rules of thumb for the cautious use of humor in trial.
The Funny Thing Is…
Worse than the actual knock-knock joke was the build up. Before telling it, West acknowledges the tragedy in the case, then announces his intention to tell a joke. He stresses that it is at “considerable risk,” notes that it “may sound a bit weird in this context,” admits that jurors “might not like it” or “might not find it funny,” and asks jurors to avoid holding it against his client, Mr. Zimmerman. Okay, so at this point, everyone in the courtroom is expecting to hear the worst joke ever. Then, Mr. West delivers. And actually, taken on its own, I think the joke is kind of funny. But the first rule of comedy is that situation and timing is everything, and this one was delivered in the wrong situation with the wrong timing.
At some level, we might understand the attorney’s thinking: Why not break the tension, and possibly bond over the shared experience of a frustrating jury selection? Some famous attorneys, like Melvin Belli and Mark Geragos, have been known to rely on humor at times. Don West may have felt it was worth a shot.
There is commentary and research to back up that view as well. Pamela Hobbs (2007), for example, studied two court transcripts, one a mediation and one an oral argument before the Supreme Court, for the journal Humor (yes, there is a journal called “Humor,” though it isn’t as funny as you might think it would be). From the examples she uncovers, the former Detroit personal injury litigator notes that humor provides “highly-valued evidence of forensic skill,” and is “appropriate for display both within and outside of the courtroom.” Noting that humor provides advocates with a novel way of disarming or even ridiculing opponents, Hobbs applauds attorneys for “placing themselves at the center of a comic performance which allows them to display their linguistic skill.”
Of course, that all assumes that the jokes are successful. One study (Gruner, 1989) went so far as to test for this by comparing the same verbal presentation, in one case with laughter after each in a series of funny statements, and in a second version where the statements were followed by dead silence. Not surprisingly, the use of humor only increased perceived effectiveness, credibility and dynamism when it was followed by laughter.
While we might all be able to think of anecdotes in which courtroom comedy has been successful, I want to draw one distinction that advice like this might miss: There is a difference between humor on the one hand and jokes on the other. Here is the difference: Humor is the lighter-hearted aspects of your humanity and personality leaking through, while jokes are a planned attempt to get a laugh. Humor relies on a wry attitude, a cynical eye, or a self-deprecating manner. Jokes rely on a set-up, a punch line, and laughter in response. The former is at least to some degree inevitable in any natural conversational style, but the latter is what can feel so risky and so far out of sync in the courtroom.
Rules for Keeping Good Humor While Avoiding Bad Jokes
Some would say that the safest bet would be to banish all attempts at levity in the courtroom, and even more would probably advise that when defending a client facing murder charges. I think that the more realistic and the more effective course would be to preserve humor but eliminate jokes. Here are a few of my own guidelines for staying on the right side of this comedic line in the courtroom.
1. Know Yourself
One important principle of self-presentation, in this context and all others, is to avoid anything that would feel unnatural or awkward. And of course you, the advocate, are your own best judge of what you can get away with. Taking me, for example, I think that I have a generally good sense of humor, and I can let loose with a wry remark every now and then. But I can’t tell a joke to save my life. So I don’t. I’m presenting constantly and my audiences will frequently have at least a few moments of laughter. But I almost never tell a joke, because for me, it doesn’t work. For others it might.
2. Don’t Rely on an Audience Response
With all the columns and flags, raised benches and armed guards, the courtroom can be a little stifling. Comedy club it isn’t. It is in the nature of formal places (think churches or IRS audits) that they reduce the range of appropriate behaviors, and that reduces the possibilities for unmonitored moments of humor. For that reason, never use any device that would depend for its success on an overt response from the judge or jury. Aim for the smile, not the laugh. And plan to be okay with it if you don’t even get the smile.
3. Cultivate Spontaneity Over Planned Moments
5. Put Substance First
Perhaps the worst part of the Defense joke in the Zimmerman opening is that it was gratuitous and not otherwise connected to the case. It would have been one thing if there was a substantive purpose to the joke, but it came off sounding like the public speaker who begins with a joke just so he can begin with a joke. The implicit message is, “I’m not putting substance first,” which is a bad message for the Defense.
Now in this case, I don’t want to exaggerate the problem. I’m seizing on the joke that fell flat as an opportunity to make a point on the high bar for courtroom humor. At the same time, with a death at issue and a man’s freedom at stake, those six jurors at this point are doubtlessly trying their best to base the case on the evidence, and not on what they think of the attorneys or their joke telling prowess. Still, every impression matters, and this first impression wasn’t so good.
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Other Posts on Delivery and Presentation:
- Go Ahead and Talk with Your Hands, But Know What You’re Saying
- Don’t Be Afraid of a Little Humiliation in the Courtroom
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
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Gruner, C. R. (1989). Audience reaction to “successful” and “unsuccessful” humor in informative discourse. Paper presented at the Annual Meeting of the Speech Communication Association, San Francisco, CA.
Photo Credit: S for Safari, Flickr Creative Commons