There aren’t any. Well, maybe one: don’t do it. (Though, as you’ll see below, not everyone agrees.)
On the “don’t do it” side is Litigator Rex. Via a post at Southern California Appellate News, I ran across Litigator Rex’s post counting down “Argument Misdemeanors – Five Ways to ruin your oral argument.” The countdown starts with this no-no:
5. Familiarity or humor. The judges are not your friends, they are an institution. While judges have their own personalities, foibles and attitudes on the bench, the role they play in the system demands a certain level of decorum. Charm, humor, or insouciance rarely work and often irritate the judges. This informality not only comes across in the spoken word but also through your actions, leaning on the lectern, body language, standing to the side of the lectern or podium, all convey an air of inappropriate informality, which can cross the line into disrespect, whether intended or not.
This is not to say you should be rigid, impassionate or humorless, but there is a level of formality that should be respected. Resist attempts at humor, especially if it’s “off the cuff.” Remember, you are not as charming as you think you are nor as funny. Stick to the facts and the law: get the job done.
I know only one lawyer who has a recurring tendency to go against the tide of advice regarding humor in the courtroom. Marty Rudoy, a California attorney, was a stand-up comic and wrote jokes for the likes of Jay Leno, Arsenio Hall and George Herbert Walker Bush (yes, President 41). As such, Marty is wont to run the risk of telling a joke or two in the courtroom. He’s got some advice for potential stand-up litigators: know your judges. If it seems like your judge has a sense of humor, set it up so the judge gets a laugh first. That way, the judge establishes that he or she is human and funny, and you don’t usurp the court’s authority over the courtroom by turning it into a mini-comedy club. Once the judge gets a laugh, then you have free reign to do a follow-on joke or a tag. Sometimes, Marty plans it so that the judge’s joke sets him (Marty) up for a short routine. Having a sense of humor, Marty says, humanizes the attorney, too, and can make you more likable (and more credible) than your dour opposing counsel.
Another thing Marty does is insert humor selectively in his legal briefs. “Judges like reading interesting observations and wry asides. I know it works, since at oral argument judges ask me about the things I bring up, whether it’s a Shakespearean reference or a quote from the Art of War. It’s all got to be in context, though, and reinforce a point you’re trying to drive home in the brief.”***
Something funny in The Art of War? I didn’t realize Sun Tzu was such a cut-up. I read Sun Tzu when I was a Marine officer, but I thought National Lampoon was funnier. (Insert rimshot here.)
So, in closing . . . a judge, a prosecutor, and a criminal defense lawyer walk into a bar . . .
***I know, I know, half of you are wondering why I wrote “free reign” instead of “free rein,” and the other half thinks the first half is crazy. As a budding equestrian, I would ordinarily go with “rein,” but used “reign” to illustrate the point that even though one form is apparently correct and the other is not, that apparently that doesn’t matter much anymore.
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