|October 27, 2010||VOLUME 9 ISSUE 43|
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Sarcasm in the Court: Does It Have a Place?
by Erin H. Hammond, Fain Anderson VanDerhoef, PLLC. Seattle, Washington
On cross examination, the murder defendant had just testified that he had taken clothes from his uncle’s apartment, and a handgun was in them. The questions came:
In a bellwether trial in the Merck & Co., Inc. multidistrict litigation over claims that osteoporosis drug Fosamax can cause bone death, the trial judge felt compelled to warn the plaintiff’s counsel:
In both cases, the defendants felt they had been deprived of a fair trial by the conduct of opposing counsel. Each sought a new trial. Each was denied.
In Kendall, the appellate court noted the difficulty inherent in determining which comments were delivered sarcastically from only a written record. It held that the comments it could determine to be sarcastic were “isolated and limited,” and “did not rise to the level of impropriety.” As such, no new trial was warranted.
In Boles, Judge Keenan ordered plaintiff’s attorney (Douglas) to show cause why he should not be sanctioned for, among other things, “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel . . . using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing . . . ‘fooling around’ and ‘making fun’.” Douglas retained an attorney for himself, and summoned support from the legal community. Though the order makes it clear that the court was exceptionally displeased with Douglas’s conduct, Douglas ultimately escaped sanction for these behaviors.
Both courts acknowledged that sarcasm is a tool sometimes used by trial advocates. The Kendall court cautioned that frequent and gratuitous sarcasm during trial may summon the jury’s disdain. It stated that it also might lead the jury to believe that sarcasm, rather than reasoning and sound judgment, is appropriate for the jury itself to use. Then, after expressly denying that it encourages or condones sarcasm, the court stated “...we also recognize that not every use of rhetorical language or device is improper…. The occasional use of rhetorical devices is simply fair argument.” (second ellipses in the original).
In Boles, Judge Keenan wrote: “[t]o put it kindly, Mr. Douglas’ style of advocacy was aggressive and boisterous. As Merck has suggested, it was vaudeville.” At the same time: The Court is mindful that wit and sarcasm are often useful tools for trial lawyers, but Mr. Douglas’ use of such methods crossed the line between zealous advocacy and inappropriate behavior.
Is sarcasm a permissible tool for the courtroom? And if so, how should it be used? The opinions on this topic are varied, and this is another one of those areas where the lawyer needs to find his or her own personal style. If the lawyer is not confident that it can be pulled off, then it must not be attempted. Sarcasm done poorly is certain to backfire.
But even done well, sarcasm in the courtroom is risky. On the one hand, advocates must engage their jury. One tool for doing this is to offer bits of humor from time to time. The goal is not to have the jury roaring with laughter, but occasionally chuckling. This can increase the lawyer’s likeability, which also has the natural effect of lending credibility and increasing the attention paid to the lawyer.
On the other hand, sarcasm is not just any humor. It involves use of cutting remarks that are generally perceived as quite aggressive. The goal is to make the target’s position look ridiculous. Voir dire is short, and the lawyer does not know exactly how the sarcasm will be perceived. Some people may object to sarcasm as a matter of course; others may think it has no place in a serious proceeding like a trial, especially if significant injuries or death are involved. Still others might find sarcasm quite entertaining.
No matter what, it is important to always be aware that, as the trial is proceeding, the jury is aligning, and realigning, themselves with all the players in the courtroom. Some folks present like such jerks that the lawyer can be fairly confident there will be no connection with the jury. With these people, a bit of sarcasm tossed into the mix can be an effective tool for making a point. The lawyer’s likeability should not take a hit from the selective, well-timed use of sarcasm in these circumstances.
The flip side is, if sarcasm is used against someone jurors feel connected to or have come to respect, the jurors may feel personally attacked right along with the actual target of the sarcasm. In that case, the lawyer using the sarcasm will probably look like a jerk or a bully. Naturally, this will harm the lawyer’s credibility—which is exactly the opposite of what the lawyer wants to do.
In the end, it all boils down to a judgment call. Sarcasm will never be the only way to approach a situation, and going overboard with it will almost certainly create problems for the lawyer. But there also are times when selective use of sarcasm is a reasonable option to be considered.
Erin H. Hammond