"Laugh and the World Laughs With You"

There are any number of great quotes out there about humor. I recently ran across an old Robin Williams performance on the 1970s series Mork and Mindy. In it, the lead character is a displaced alien suddenly living in Boulder, Colorado. The fish-out-of-water alien's earth experiences and perceptions on the show are balanced by the wisdom of the other lead, Pam Dauber, playing Mindy. There are various explorations of the human condition displayed as Mork strives to adapt to an unfamiliar environment. In one episode, the writers explore the challenges of humor, with an emphasis on jokes that demean or denigrate a group or individual. 

In one of the jokes, Mork provides Mindy with a gift, a light bulb. When she questions the gift, he explains “I wanted to see how many of your family it takes to change one.” Fair warning, that is probably the least obtrusive of the examples the writers selected for this exploration of Mork’s naiveté regarding offense. Certainly, there is plenty about this old sitcom episode which is offensive, but the theme illuminates the offense and reminds us that humor can be offensive to individuals or groups. For more on that, a good read regarding intentions and humor is Jokes, Excuses, and why Words Matter. 

The Florida First District recently rendered a decision in which it discussed humor. It was not a workers’ compensation case, but was forwarded to me by a workers’ compensation judge. Coincidentally, the same week an administrative law judge forwarded me an article on judicial humor from an American Bar Association (ABA) publication. As a side note, there are many who misunderstand the ABA, believing that the organization speaks for the American legal profession; however, it is merely another voluntary association of which some lawyers are members.

In the First District decision, Cannon v. State of Florida, the Court addressed a dispute for the third time. Both of the two most recent decisions are worthy of consideration by adjudicators. In 2016, the Court reversed a trial judge’s denial of a Rule 3.850 motion. The instruction was that a new trial judge conduct “an evidentiary decision” regarding one of the party’s perception that the original trial judge was biased, based upon “an offhand comment the judge made about one of her attorneys.” Cannon v. State, 206 So. 3d 831 (Fla. 1st DCA 2016).

That new judge conducted this hearing as instructed, and concluded “the (original) judge made the comment in jest.” Therefore, the new judge concluded that the results of that proceeding were not “unreliable” based upon the overall tenor of those proceedings and resulting order, which was affirmed by the District Court on the first review of this matter. 

Thus, on this third trip to the District Court, the denial of that post-conviction motion was affirmed. But, the Court elected to dip its toes into the subject of humor. It stated that “this case highlights why judges should avoid attempts at humor while on the bench.” It acknowledged that the motivation for humor might be the “laudable purpose of reducing unnecessary tension in the courtroom.” However, as well-intentioned as the attempt at humor might be, the results may be tangible and significant. 

The Court noted that “the judge’s offhand comment here spawned years of post-conviction litigation and multiple appeals in this case.” And, the Court suggested that much time, effort, and expense might have been avoided “if the judge had simply exercised a little self-restraint.” 

The Court was critical of humor generally. It concluded that “judicial humor is rarely as funny as the judge thinks it is, and judicial humor is never funny when it is at the expense of an attorney or a party”; not dissimilar from the writer's theme in the Mork and Mindy episode noted above. The Court cites to a recent decision in which the Utah Supreme Court concluded that “if someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.” See In re Kwan, 2019 WL 2223543, at *3 n.1 (Utah 2019).

The overall tenor of the decision suggests that this panel of the District Court believes that humor simply has no place in the hearing or trial. And yet, there has been humor, parody, and even verse in judicial opinions, as noted by The University of Washington School of Law. 

As noted above, the Cannon decision was contemporaneous with the ABA article Humor in the Courtroom, no Laughing Matter. There an attorney author expresses an appreciation of "the need for levity in our profession," but reminds that use of "humor in the courtroom is fraught with risk" from even the attorney perspective. He suggests that humor is "intended to establish rapport," but may attempts instead "come off as inappropriate, condescending or made at someone else’s expense."

The author notes the responsibility of the judge. He says that an attorney vying for a laugh, or to build rapport perhaps, may "think that a judge is responding to and even joining in attempts at humor." That perception may then encourage an attorney to "keep up the comedic tone." In this regard, the author similarly points us to In re Kwan, cited by the Court in Cannon and to another decision illustrating humor escalating in a proceeding to the extent that the court's purpose was frustrated. In that instance, an appellate court noted “a courtroom is not the Improv and the presider’s role model is not Judge Judy.” The point being that what makes ratings in television is not necessarily congruent to what makes good due process. 

The author's conclusion is perhaps less than prohibiting humor, but his tone and tenor certainly encourage caution against it. In the weeks since these two instances were published, I have heard several people discuss judicial and attorney humor. Presumably, some of those conversations may have been encouraged by one or both of these publications, or by the Utah Supreme Court admonitions cited. And, it is possible that discussions instead resulted from some other attempt at humor in some proceeding neither cited nor identified but within the speaker's personal experience, remote or recent. 

The point is that humor in legal proceedings is, momentarily at least, on the fore for discussion. According to the opinions expressed, there is no ban on humor, but there is fair warning that it involves peril. Perhaps Professor Prosser's criticism is a bit exaggerated ("buffoon" "choked"), but is his admonition still worthy of our consideration? Perhaps the District Court's best guidance of "a little restraint," is the best course in balancing the seriousness of our proceedings with "reducing unnecessary tension" in some moment. For one undeniable point is that litigation can be stressful and alienating. Perhaps there is a place for humor in it, of the most bland variety. 

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