Parody as advocacy

Have you seen the amicus brief filed by The Onion in support of certiorari in the United States Supreme Court? Wait! Before going any further, I need to make a disclosure: the trial judge in the underlying case, Novak v. City of Parma, No. 21-3290 (6th Cir. 2022), is U.S. District Judge Dan Polster. About 50 years ago, Judge Polster and I went to the same high school in Cleveland. I didn't know him but my older brother did (I think).

See what I did there? That is the question repeatedly posed by fictional Borscht Belt comedian Buddy Young in Billy Crystal's 1992 movie Mr. Saturday Night (and now a new Broadway show). The question means: I made a joke, you didn't realize it at first but then you did, and I gotcha, didn't I? That is how humor works. There's a reason they call it a "punchline" because the "punch" is to your sense of predictability - at the last moment, the listener was thrown for a loop, and it is that momentary sense of disorientation that tickles the funny bone.

I'm not suggesting my Judge Polster joke warrants the Mark Twain Prize for American Humor (Jon Stewart, relax!). But it might have caused a modest curl upwards at the margins of your mouth because it is a parody: judicial disclosures of certain knowledge or interests are a serious subject, but what judge would think disclosing a common high school a half century ago is necessary? In fact, it is a happy kind of parody in that it is harmlessly directed squarely and solely at the speaker - in this case to make him (me) seem fatuous and self-important.

The Onion's brief can fairly be described as a parody of a Supreme Court brief which, it turns out, non-parodically argues in favor of First Amendment protections of parody. Perhaps one of the reasons it is fun reading is that it apparently was written by non-lawyers. Reading it raises the interesting question that lawyer-raconteurs have long pondered: is there a role for humor in legal advocacy? Serious things happen in a courtroom. Injuries or deaths litigated, crimes alleged and defended, important financial matters debated. It is not a comedy club and there is no place for clowning around. My experience is that most jokes in court go over very poorly, especially on the "cold record." I can imagine the Court of Appeal justice wincing. On the other hand, humor has an emotional impact (remember, punchline) and emotional impact can be useful in persuasion of judges and juries. So advocates see humor as a potential tool.

More than lawyers have pondered the role of humor in a courtroom. Indeed, there are learned journals dedicated to the subject. Do you subscribe to Humor - International Journal of Humor Research? If so, you no doubt recall Pamela Hobbes' 2007 article, Lawyers' Use of Humor as Persuasion. One of a great many such articles.

I am not an expert. But it seems to me that if one is going to venture into humor in a courtroom, one should (1) do so very rarely - and maybe never; (2) be sure the humor works in the context of the moment; (3) the quip cannot possibly be construed as callous; (4) make sure that the speaker is the butt of the joke if there is a butt; and (5) be sure the quip is actually universally humorous and not groan-worthy to a material proportion of the population.

Parody, of The Onion's amicus brief type, I cannot see working in a trial court. Maybe in an appellate court. I suggest you take a look and judge for yourself.