By Laurie R. Kuslansky, Ph.D., Expert Jury Consultant
In a high-profile murder case, defense counsel began the cross-examination of the prosecution’s star witness by saying, “No questions, your honor.” But then he quickly added, “Just kidding.” The courtroom filled with laughter. Everyone had anticipated a character assassination. The legal levity not only eased tensions, but softened the blow of the attack to come.
In another trial, a dull expert witness was asked to qualify his credentials on the stand: “Why did you become an auditor?” to which he responded, “Because I didn’t have enough charisma to become an accountant.” Again, the court erupted. The witness’s humor endeared him to the jury and made him instantly more interesting.
However, humor can also be grossly misused, as it was in the defense’s opening statement on June 24, 2013, in the second-degree murder case of George Zimmerman for shooting the unarmed, 17-year-old Trayvon Martin.
Evidently referring to the jury-selection process asking prospective jurors of their familiarity with the case, attorney Don West said (here's the actual video):
George Zimmerman who?
All right, good. You’re on the jury.”
West later apologized and said he wouldn’t make any more jokes. Too little, too late. He already violated trust, decorum, and common sense, and the rules of using humor in litigation appropriately.
Humor is no laughing matter in litigation because it affects being liked and believed . . . or not. In the courtroom (or your own home), it’s hard to believe someone you don’t like. Since credibility depends on likeability, and humor enhances likeability (or detracts from it if used inappropriately), it makes sense to take a serious look at humor in litigation.
Not only is it common sense, but according to the “friendship/liking rule,” people are more favorable to people they know and like and are more willing to comply with their requests. This principle is borne out by one of the most successful business models to evolve: the Tupperware home party. Tupperware found that sales pitches are received more positively from friends and neighbors than from strangers, since we believe people we like more than ones we dislike.
No Sex, No Drugs, No Rock and Droll
Humor is important because persuasion depends on a variety of circumstantial factors surrounding the facts, not just the facts themselves. Like other people, jurors use two different routes of persuasion: central and peripheral.  Using facts is the most powerful way to persuade jurors, using the “central route.” If the facts are too complex, too dull, or both (too scientific, technical, theoretical or statistical), and the subject matter is not intrinsically interesting, thoughtful consideration of the facts is unlikely.
In such instances, jurors resort instead to positive or negative “cues” that they associate with the issues (not the issues themselves) as shortcuts to base their decisions on, using the “peripheral route.” For example, jurors might be persuaded to find for a defendant because defense counsel showed more documents, brought more experts and played up their credentials better than plaintiff counsel, not because of the quality of defense arguments or opinions. The less personally involved jurors are with evidence, the more they tend to rely on peripheral cues than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe.
What Increases “Liking”?
Sales professionals know and use this information – perhaps too well. Attorneys and witnesses who do not share an existing friendship with jurors can still benefit from applying the liking/friendship rule by understanding a number of relevant factors outlined below.How?
Appropriate vs. Inappropriate Humor in the Courtroom: What Is Funny?
Allowing jurors to see you smile, share a laugh, have something in common, laugh with you, laugh at a common enemy – this is humor. If used properly, it can be powerful. But, like knowledge, a little humor can be dangerous if misused.Appropriate humor cannot proceed at the expense of a litigant or witness who will be hurt and sympathized with; instead, appropriate humor brings consensus, provides comic relief, or is self-disclosing, universal, and honest.
Recommendations on Using Humor Appropriately
In voir dire: Humor can be used to create contact, compliments and cooperation with prospective jurors. For example, asking about driving experience (say, in vehicle accident cases) with someone who carpools children frequently, you might respond, “So, you’re a professional driver.” Instead of disdaining people like stay-at-home moms, your lightheartedness while validating and acknowledging them creates a useful bond.
In opening statement: Humor can be used during introductions, poking fun at your own name. “My name is Laurie Kuslansky. With a name like that, it isn’t easy making reservations in a hurry.” “With a name like Bob Johnson, I have to work twice as hard and dress better so people remember that I am THAT Bob Johnson.” OR “My name is Andrje Czernovsky – which is too hard to spell, so most people call me Joe.”
In closing argument: Remind jurors of lighter moments of the trial to show you identify with them. “There were times you’d rather be somewhere else . . . me too!” “Speaking of the technology, which, fortunately, we heard about AFTER the judge gave us all a coffee break . . .”
Benefits of Humor in the Courtroom
Humor makes attorneys less “lawyerly,” more human and animated. Appropriate humor also provides other important benefits, besides likeability; e.g., it allows jurors to see you smile, relaxes them, disarms the authoritarian setting of a courtroom, makes you more accessible, makes jurors want to listen to you, creates bonding (if it uses a common denominator or is universal), helps jurors identify with you, enhances jurors’ attention and memory, and lightens things up when jurors feel oppressed or stressed. Evidence of jurors’ need for comic relief comes from the fact that they often come up with playful nicknames for key players in the case, including counsel, as revealed in post-trial jury interviews.
Risks of Humor in the Courtroom: When in Doubt, Leave It Out
Don’t risk it if you aren’t sure you can. Inappropriate humor is unkind or makes others uncomfortable. A witness who is funny may be seen as disrespectful and irreverent. Inappropriate humor is at the expense of a person who draws sympathy; it shows mean-spiritedness, is an inside joke that excludes some participants, is about something others cannot relate to, is an expression of concealed hostility (such as saying “Only kidding” to dodge responsibility for a cruel remark). It is sarcastic, smug, bullying, or used in inappropriate settings. It is not appropriate in most criminal cases or ones involving individuals hurt physically or emotionally. What is funny depends on at whose expense it is expressed. Ask yourself whether it is really funny or something else, perhaps snide, veiled anger, defensive, distracting, a lack of confidence, overly self-deprecating, or to conceal your own discomfort. It is not an appropriate way to apologize. If misdirected, humor can create resentment or reduce credibility. It backfires if used as a defense/deflector when actually reacting to anxiety or anger. Humor is also an unreliable way to cover up a lack of preparation or disorganization; just be better prepared and organized.
Some other articles related to juries and jury consultants that you may enjoy:
- 5 Things Every Jury Needs From You
- 11 Surprising Areas Our Jury Consultants are Using Mock Excercises
- 10 Things Every Mock Jury Ever Has Said
- 4 Reasons Televised Criminal Trials Get So Much Attention
- A2L Voted #1 in jury consulting by the readers of LegalTimes
- Free Download: Jury Consulting Guidebook for Litigators & Lit Support
 Shavitt, S. & Brock, T. C. (1994). Persuasion – Psychological Insights and Perspectives. Massachusetts: Allyn and Bacon.
 Petty, R. E. and J. T. Cacioppo (1981; 1996). Attitudes and persuasion: Classic and contemporary approaches. CO.: Westview Press.
 Petty, et al. Ibid.
 Shavitt, et al. Ibid.
 Hamlin, Sonya. (1988) How to Talk So People Listen. N.Y.: Harper & Row.