Saturday, August 25, 2012



... can’t recall a good story or punch line to complete this prologue.  Lawyer jokes aren’t memorable.  Even the best (relative term) of them are just nasty and churlish and (worse) not all that funny.  Perhaps lawyers and humor don’t mix.  The “Guide for Counsel in Cases to Be Argued before the Supreme Court of the United States” admonishes putative oral arguers that, “Attempts at humor usually fall flat.”  Which doesn’t prevent the Justices from throwing caution to the wind during oral arguments and behaving as if they were auditioning for a gig on Saturday Night Live.  (“It would be argument for a week, laughter for a month, and a good jest for ever.”  Henry IV, Part I Wm. Shakespeare)

One Ryan A. Malphurs, Ph.D. analyzed transcripts (which noted laughter in the court at various points) and audio files (where he heard laughter) from the U.S. Supreme Court 2006-2007 term’s oral arguments to explore “the communicative function of laughter in Supreme Court oral arguments.”  (You might ask: “Why?”; or, perhaps, just take comfort in the fact that your job doesn’t suck as much as his did.)  Here are some (ehh) humorous excerpts from his “People Did Sometimes Stick Things in my Underwear” The Function of Laughter at the U.S. Supreme Court (Communication Law Review Vol. 10, Issue 2): the title comes from a bit of hilarity provided by Justice Breyer discussing—in the context of a 4th Amendment case involving a strip search of a middle schooler suspected of concealing Ibuprofen—how he, Breyer, was teased as a boy.

Justice Breyer: “In my experience when I was 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?  And in my experience, too, people did sometimes stick things in my underwear.  [laughter noted in the transcript]  Or, not my underwear.  Whatever.  Whatever.  I was the one who did it?  I don’t know.”

Dear Reader — Stop laughing!  Take a deep breath: pull yourself together.  Keep reading please ...

Justices Kennedy and Scalia (the Court’s Martin & Lewis? or, maybe, Cheech & Chong?) were not to be denied their Moment in the Sun of Frivolity.  Malphurs reported only three instances—out of the 131 moments in which justices used laughter during the 2006-2007 term—when the justices used laughter as “an act of aggression.”  Here’s one where these comics’ rapier like wit slashed to bits the arguments of the attorney representing a student who contended that his First Amendment rights had been violated when the school principal confiscated the student’s banner—which read: “BONG HITS 4 JESUS”—and suspended him.  (In a 5 to 4 ruling the Court went on to hold that the First Amendment does not prevent suppression, in a school setting, of student speech that is reasonably viewed as promoting illegal drug use.)

Justice Kennedy: “So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many of you here are truants ... I can’t discipline you because you’re a truant, you can go ahead and throw the bottle.”  [laughter noted]

Attorney: “No I don’t think [the principal] ... needs to do that in the heat of the moment.  But later on once she’s discovered the true facts, then at that point I think she loses a basis for punishing him as a student if was not there as a student.”

Justice Scalia: “Because you’re both a truant and a disrupter, you get off.  [laughter]  Had you been just a disrupter, tough luck.”  [more laughter]

        Maybe you had to be there —  A jest’s prosperity lies in the ear
                                                          Of him that hears it, never in the tongue /
                                                          Of him that makes it
                                                                                              (Love’s Labour’s Lost Wm. Shakespeare)

Malphurs noted that while the justices “aggressively ridiculed” this particular attorney, “not a single advocate” during the studied time period “aggressively ridiculed the justices” adding (probably unnecessarily) “most likely due to the danger of making light of a Supreme Court Justice.”  (Ya think!?)

But not all judicial personages have been able to avoid laughter inducing  verbal attack.  As a young barrister, F.E. Smith, First Earl of Birkenhead, and one of Winston S. Churchill’s best buddies, was defending a tramway company being sued by a boy who had been run over by a tram and (as alleged) rendered blind.  Churchill reported, in his Great Contemporaries, the following courtroom dialogue —

Judge: “Poor boy, poor boy!  Blind!  Put him on a chair so that the jury can see him.”

Smith (taking umbrage): “Perhaps your honor would like to have the boy passed around the jury box.”

“That is a most improper remark.”

“It was provoked by a most improper suggestion.”

Judge (after a bit of ponderation): “Mr. Smith have you ever heard of a saying by Bacon—the great Bacon—that youth and discretion are ill-wedded companions?”

Smith: “Yes, I have.  And have you ever heard of a saying of Bacon—the great Bacon—that a much-talking judge is like an ill-tuned cymbal?”

“You are an extremely offensive young man!”

“As a matter of fact we both are; but I am trying to be and you can’t help it.”

                                                                                                         * * * * *

                SO, TWO JUDGES WALK INTO A BAR ...

John S. Spencer
Litigation & Mediation
Sausalito CA