Mary B. Trevor, Hamline University School of Law, is publishing Ostriches, Trees, the 'Perfect Trial,' and Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial Opinions in volume 45 of the University of Toledo Law Review (2014). Here is the abstract.
In the legal profession, understanding — or at least, formal analysis — of humor and its impact is in its infancy. Lawyers and judges are not trained to use or understand humor, although all would acknowledge that humor, cringe worthy or otherwise, is by no means unknown in the practice of law. But for most intents and purposes, we pretend that humor is not part of legal culture. When humor is addressed in the law school or professional advocacy context, for example, it typically gets short shrift: don’t try to be funny. Resources on judicial opinion writing, in particular, generally advise that humor is inappropriate, and commentators on judicial humor have offered similar, mostly negative, assessments.
Despite this advice, humor, while not widespread, is an ever-present aspect of the body of judicial opinions, an aspect that periodically attracts attention. One of the best-known recent examples is Gonzalez-Servin v. Ford Motor Co., an opinion by Judge Richard Posner of the Seventh Circuit. Multiple counsel in the case had, in Judge Posner’s view, ignored “apparently dispositive precedent” when presenting arguments. Unsatisfied with a mere holding, however, Judge Posner not only verbally compared the tactic to an ostrich burying its head in the sand, but also inserted two photographs into the opinion: one of an ostrich burying its head in the sand, and immediately following, one of a man dressed in traditional “attorney” attire burying his head in the sand. Legal newsletters and blogs picked up on Judge Posner’s opinion, but they were not the only sources to do so. The general press (the Wall Street Journal and the Chicago Tribune) did as well. And such treatment was for an opinion addressing an issue that was not a matter of public interest-forum non conveniens.
Judge Posner does not stand alone in his use of humor. There are even some indications that judicial use of humor in opinions is increasing. And in our era of rapid and widespread electronic communication, public awareness of this humor also appears to be increasing. In light of the evidence of continued use of humor in the face of advice and commentary largely counseling against its use, a reassessment of judicial humor seems warranted.
An additional reason for reassessment at this time comes to us from recent developments in the field of social science, which offers sophisticated tools for the job. In the last few decades, social scientists have greatly expanded the study of humor’s role in our society. Their theories offer new tools to assess judicial humor, to bring together the perspectives of earlier commentators on judicial humor, and to offer more comprehensive guidelines for judicial humor than have previously been offered.
The intent of this article is not to suggest that humor is always, or even often, appropriate in judicial opinions. But social science tells us that, despite the bad name humor has justly acquired based on its use in certain opinions, it may be possible for humor to be used appropriately, and even helpfully, in certain instances.
Download the article from SSRN at the link.