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Birmingham Bar Association Summer 2016

Special Interest funerals,” pointing out that because of the nature of the subject matter in her court, gallows humor1, the humorous treatment of a grave or dire situation, is particularly helpful. For witnesses and jurors, a good rule of thumb is not to take oneself too seriously. In a story told to me, a witness and former high school friend of the judge accidentally called the judge by his first name. Rather than making a big deal and embarrassing the witness, the judge laughed it off, instead putting the witness at ease and allowing the case to move forward. Even new or inexperienced lawyers can be wary of a court appearance and suffer from a bad case of stage fright. On one occasion, after tripping over his new robe and hitting his head, Circuit Court Judge Michael Graffeo had to inform the attorneys appearing for his motion docket that it was okay to laugh. Judge Graffeo has also kept Birmingham Bar Association pictorial directories dating back to the 1970s. Arguably, his appreciation for directories is not solely based on their historical value. Instead, for breaking the ice and developing a comfortable rapport, he often shows new attorneys portraits of their bosses in their best polyester suits or sporting the coolest of hairdos. “It is a curious fact that people are never so trivial as when they take themselves seriously.” -- Oscar Wilde “Jurors,” according to Circuit Court Judge Alfred Bahakel, “take in information better when they are at ease.” Therefore, it is in everyone’s best interest for attorneys to calmly and effectively deal with unpleasant situations. Illustrating this point, Judge Bahakel told of an incident during a jury trial, when it became clear to everyone that a juror’s continued and obvious napping (snoring was involved) was causing concern and distracting the remaining jurors (you want your jurors to be comfortable, just not too comfortable!) At the start of cross-examination, one of the attorneys killed two birds with one stone: he walked over to the jury box slamming his hands on the rail and waking the dozing juror, and then advised the juror to pay attention because it was “about to get good.” Not only did the attorney solve the problem of a sleeping juror; he highlighted the testimony that was about to be elicited. That attorney’s clever and funny approach shows that another great reason for using humor in the courtroom is to bolster your client’s case. Take notice: the intent here is to promote your client’s interests, not your amateur comedic aspirations; never make the mistake of thinking humor is your opportunity for gaining favor with the judge. You never want to be guilty of a pointless “fall flat.” Unfortunate as it may be for those who merely self-identify as a comedian, only a nimble attorney with a natural sense of humor and talent for comedic timing will get this right. For example, using a well-reasoned, ridiculous analogy in cross-examining a witness whose testimony is less than candid can achieve two goals: highlighting the outrageous nature of the testimony and impeaching the witness. Using funny phrases to show disbelief at your opponent’s argument (“that dog won’t hunt,”) or putting a humorous spin on an important piece of evidence (comparing the publishing of a flask to the jury to the defendant’s “passing the flask” in a public intoxication case) can make your argument memorable. Finally, humor is great for lightening the mood, but let the judge set the tone for his or her courtroom. Whether arguments have become overly contentious or the atmosphere has become too relaxed, a judge who has control of the courtroom environment can “reel it in” as the situation warrants. Granted, the humorous fodder in some courtrooms is more plentiful than others. Nevertheless, attorneys will serve themselves well to observe the judge’s tenor in gauging their own actions and reactions regardless of the wealth of material in the courtroom. Judge Sherry Friday sees more than just a little humor in probate court. She recalled one particular case involving an elderly ward who would stick her tongue out at Judge Friday whenever she made eye contact. If you were in court witnessing this firsthand, it would admittedly be tempting to snicker or pass a sideways glance at others in the courtroom. But, when in doubt, observe the reaction from the bench and use it as a measuring stick for your own response. In conclusion, there is a general consensus that humor has a place in the practice of law, as long as it is well-placed, well-timed and well-intended. “The secret to humor,” according to Aristotle, “is surprise.” As it follows, the best moments of courtroom humor are unintentional, and those persons who have the ability to shoot their wit from the hip have one more arrow in their quiver. G 1 “Gallows humor.” American Heritage Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Catherine “Ree” Glaze is an attorney with Hale Sides, LLC Birmingham Bar Bulletin/ Summer 2016 11


Birmingham Bar Association Summer 2016
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