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.