Should judges try to be funny?
This is an excerpt from Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge, published this month by Thomson Reuters Westlaw.
The use of humor by a judge is a controversial matter. Should the judge always be “sober as a judge” as the saying goes, or is there a place for some levity? Sir William Gilbert, author of the humor-packed librettos in the Gilbert and Sullivan operettas, was himself a lawyer, though he practiced only briefly. In the first act of the Mikado, the Lord High Executioner sings about various persons who should be executed because they never would be missed. Included in the group is “The Judicial Humorist.” As Sir William wrote, “I’ve got him on the list.”
In 1952 Dean William L. Prosser of the Harvard Law School – who was not known for his sense of humor – echoed Gilbert’s sentiments in a preface to a book, The Judicial Humorist, which was appropriately named for the lawyer who Gilbert thought should be executed. Dean Prosser did not believe that the bench was an appropriate place for humor because the litigant’s “entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig.”
On the other side of the ledger stands the great Justice Benjamin Cardozo, who, although “preaching caution,” did not believe a judicial opinion “is the worse for being lightened by a smile.” Justice George Rose Smith, a long-term justice of the Arkansas Supreme Court, aptly cautioned in his excellent article, “A Critique of Judicial Humor,” that a judge “must, without weakening the fabric of seriousness, weave into it a thread of playfulness. Not a simple feat.”
I believe that judicial humor sometimes has its place, although I agree that it should not be used indiscriminately. With rare exception, I will not use it in my written opinions – which I think should be serious discussions about the law – but I believe that it can be employed effectively in the courtroom to make a point or provide an appropriate break from the dreariness of some trials which seem to be putting the jurors to sleep. Shakespeare’s serious tragedies are not compromised because he always gave the audience some comedic relief. He knew what he was doing. That said, I am conscious of not using humor to make fun of lawyers or litigants. I try to make myself the butt of my humor. Moreover, I only use it when I think that it would serve a purpose, like telling jurors that they can only tell their loved ones that the judge looks like Brad Pitt. In that situation, I say that because I believe that the jurors are more likely to remember my instruction about how important it is to avoid outside influences.
I remember only one time when I used humor in a written opinion, but I did so to defend the honor of the lawyers who practice in the Eastern District of New York (EDNY). There are certain times when a plaintiff is entitled to counsel fees, such as when he has successfully sued the government for a violation of his civil rights. The district court has to determine what the fee should be. In a recent opinion, the Second Circuit Court of Appeals ruled that in cases brought in Brooklyn, the legal fees cannot be the same as if the case were brought in Manhattan. The reasoning was that Brooklyn lawyers charge less for their services than Manhattan lawyers. Thus, if you decided to use a Manhattan lawyer instead of a less expensive Brooklyn lawyer, the losing party should not have to pay for the more expensive lawyer unless the case was truly extraordinary.
However, the decision did not end there. In the concluding sentence the appellate court – which has only one of its 13 active judges from the EDNY – reasoned that the defendant “should not be required to pay for a limousine when a sedan could have done the job.” I considered this language to be ill-advised because I thought that it demeaned the lawyers who came from the EDNY. I could not resist the temptation to come to their defense. When I had the chance shortly after to fix legal fees for a Brooklyn lawyer, I wrote that I have had trials with many Brooklyn lawyers who “deserved to drive in limousines” and that I have had trials with Manhattan lawyers “who should have been driving clunkers.”
Nevertheless, if you are going to stray from the straight and narrow, there are certainly risks that all may not go as you hoped. I recall one occasion when a psychiatric expert witness was testifying about a criminal defendant’s mental status. He told the jury that the defendant had a low IQ and that IQs were “still considered to be a relatively good indicator of cognitive functions.” My mind flashed back to the time when my principal, Mr. Richman, told me that I might have a hard time at Stuyvesant because of my low IQ. I should have kept my mouth shut, but could not resist jumping in. I told the shrink that I only had a 96 IQ and asked him, “What does a 96 IQ mean?” He answered that 100 is average, so mine would be a little below average. I then asked him whether that meant that “I would turn out to be an average Judge.” He then got his revenge:
THE WITNESS: You would be an average person across the board. I think most people would want someone with more intelligence for a Judge.
I should have had the good sense to stop before matters got worse, but I kept the banter going and asked, “Should I consider resigning as a fraud or anything like that?” The psychiatrist comforted me by testifying that “I wouldn’t say that you are obligated to, ethically.” I thanked him for his professional consultation. He retorted, “Any time.” Everyone laughed.
The repartee between me and the psychiatrist did, however, trigger further testimony dealing with the limitations of an IQ score. The witness explained that there were many variables, such as vision, fatigue, and reading abilities, and the jury took it all seriously. There was one occasion when a humorous comment that I made was totally politically incorrect. A defendant’s lawyer made a bail application for his Chinese client. The defendant had been in jail for a number of days. I was dubious about letting him out since I thought that he was a serious flight risk. Nonetheless, I set him free, but told him that I was giving him a break and that if he skipped “I will have egg foo young on my face.” Everyone in the courtroom burst out in laughter. He thanked me profusely. He did not disappoint me. He faithfully complied with his bail conditions and showed up in court promptly whenever he had to appear. He pled guilty to a relatively minor crime, and I did not make him go back to jail.
I still periodically use humor to try to humanize the courtroom. However, these two examples of the misuse of it – early on in my judicial career – remind me that I should always be mindful of Judge Cardozo’s sage advice to “proceed with caution.”
PHOTO: The judge’s gavel is seen in court room 422 of the New York Supreme Court at 60 Centre Street, February 3, 2012. REUTERS/Chip East