February 4, 2025

Podcast - How to Use Humor and Anger Effectively in the Courtroom

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the dangers of using both humor and sarcasm or expressing anger or aggression in the courtroom, while recognizing their potential persuasive effect when incorporated appropriately. Mr. Small mentions that it's important to be able to be able to laugh throughout a trial, especially when things go wrong, and that sometimes aggression is warranted when zealously advocating for a client, but both should be handled carefully to avoid damaging your case. Ultimately, Mr. Small advises not to let your clients' wishes cloud your judgment and emphasizes that although courtroom environments are complex, it's imperative to communicate effectively in all facets.

Listen to more episodes of The Trial Lawyer's Handbook here.

Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Dan Small: It’s easy to make missteps when navigating the complex environment of the courtroom. That's especially true for things involving pure judgment, like the right tone to adopt with witnesses and the jury. Two areas that require particular attention are one, humor and sarcasm, and two, aggression and anger. 

First, humor and sarcasm. Humor and sarcasm are dangerous weapons in the courtroom. Sometimes they're effective, but sometimes they go horribly wrong. Use them with extreme caution or not at all. Don't make a joke unless you are 100 percent certain that one, it's entirely appropriate, and two, it's going to work. Nothing fails quite as spectacularly as an attempt at humor that falls flat in front of a jury. You may come off as foolish, disrespectful or both. If you're going to try it, start slowly. Let the jury get to know you first. You're not a standup comic. Juries want to get to know you before they'll laugh at your jokes.

That said, you should always keep some sense of humor. Your witnesses will make mistakes, and so will you. Things will go wrong. Murphy's Law will apply. Don't be afraid to laugh, especially at your own expense. In my recent ABA book, Lessons Learned from a Life on Trial, I talk about representing former Louisiana Governor Edwin Edwards in a lengthy corruption trial. Born and raised in Boston, I was representing a Louisiana legend. I was clearly not a local boy. Among other things, I mispronounced a number of Cajun names and places. What to do? So I turned it into an ongoing joke with the jury that I would mispronounce something and we would laugh about it together. And it was fine.

Sarcasm is also highly dangerous. It has its place, but in limited doses and, again, only when you're absolutely certain that it's going to work. Sarcasm is easily misunderstood, and can grate on the nerves of the jury and the judge if it is not used effectively. In particular, don't conduct a cross-examination by just repeating the witness' testimony back to him in a sarcastic tone of voice, rolling your eyes and shaking your head: "Who do you think you are? Oh, uh, the witness, you claim that you were present at the meeting, right? And that Mr. Jones was there? And that you heard him say, 'destroy the documents?' You expect this jury to believe your story is true?" That will not normally be effective. Over long stretches, it may cause some observers to fantasize about strangling you.

Remember, too, that a transcript is being created of everything you say. That transcript will be entirely flat without any indication of the tone of your voice. And what seemed clever in court, can look ugly or worse in the appellate record.

Next, aggression and anger. Aggression and anger are also dangerous. They should be used sparingly and with great care. Sometimes you have to be aggressive. Sometimes, too, you need an edge of anger. But aggression and anger are dangerous tools as likely to injure the lawyer and the client as a target, if not handled carefully. When you throw a grenade into a crowded room, you never know who's going to get hurt. Some cautions therefore apply.

The first is to proceed carefully. The jury needs to understand that there is something worth being aggressive or angry about. You may know that the witness is the devil incarnate. You may have good reason to feel that way, but it may take time to explain. You have to earn the right to be aggressive, not assume it. Be careful about coming on strong right at the beginning before the jury understands what the case is about. Later on, the jury may clearly see that a witness is being evasive or untruthful, and will understand why you're doing what you're doing. But not at first.

The second is to pick your spots. You can't go after everyone and everything. Consider the nature of the case and your client. If you represent a large corporation or the government, being unnecessarily aggressive may not sit well with the jurors. And be cautious with sympathetic witnesses. Make sure your tone fits the case. As an AUSA — Assistant U.S. Attorney — I prosecuted a U.S. customs agent who had sold information off of the customs computer system. Defense counsel was an experienced lawyer, but well known for attacking the government in every case. In this case, it made no sense. His client was a government agent. How would attacking the government help him? It didn't. But after he was convicted, it got worse. We were before a conservative judge. At sentencing, what is required is groveling, not outrage. But the lawyer persisted in his attacks. I had recommended sentences on each of the two counts to be served concurrently. But as the lawyer spewed forth, you could see the judge getting angry and impatient. When it came time to pronounce sentence, he glared at defense counsel and said he agreed with my recommendation on each count, but that he was ordering it to be served consecutively, not concurrently, effectively doubling my recommendation. Yes, there is a time and a place for everything. And you have to know what it is.

The third is not to overdo it. An aggressive cross-examination executed properly can be interesting, effective and even entertaining. But if you go on too long, or do it too often, or do it too much, the jurors may grow tired of it. Or even hate you, or hate it.

The fourth is not to let the wishes of your client cloud your judgment. Here is a tough one. Clients often have a strong emotional stake in the case, and they want to see their opponent attacked in the courtroom. That may or may not be a good idea, but you, not the client, need to make that decision.

Again, the courtroom is a complex environment. To communicate effectively, trial lawyers need to be able to harness a wide spectrum of tone and delivery that may include humor, sarcasm, anger or aggression. But don't use them without thinking through the risks and the benefits.

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