The persuasive art of coded understatement

The persuasive art of coded understatement
A sense of humour is an endearing quality, even in a lawyer. It can help you win the confidence of clients and colleagues. A flash of wit can signify a mastery of the facts. Lack of humour can be interpreted as being uncomfortable with the facts, like trousers that are too small. Too much humour, on the other hand, is like too much drink: it makes a display of the speaker at the expense of the subject matter.

Professional humour is not the exclusive domain of senior male lawyers, but new lawyers and women lawyers do tend to be more guarded. Many senior male lawyers believe the ability to distinguish between appropriate and inappropriate humour comes from experience. Humour is, in fact, one area where experience and judgment often can diverge. It is like an inhibiting set screw in the back of the neck loosens up once one enters the Quarter-Century Club. Casual chauvinism often catches the older male lawyer in a moment of being a step behind the rest of society.

Notable examples of regrettable humour come from lawyers-turned-politicians, although this type of episode is commonplace in more mundane circles. John Turner’s 1984 on-camera “bum patting” episode was a harmless joke. However, it left the impression he had waited too long to step back into politics. Last month, even media-savvy Barack Obama failed to see the cowpat before stepping into it, when he called California Attorney-General Kamala Harris “the nation’s best-looking attorney general.” Did the rock-star U.S. president need that comment to warm up an audience?

In contrast, women tend to tread carefully around public displays of humour. Some women feel the risks of telling jokes make them not worth telling. One former bar president, now a judge, once told me she studied her male counterparts’ use of humour on the greetings circuit. Men could get away with self-deprecating humour at the podium, even though they were often tired lines about women “already running the place.”

The need to beware of the risks does not mean women are less capable of humour. Circumspection teaches the purpose of professional humour is not to get a laugh, but to crack the listener’s façade: a form of studied carelessness. The late Margaret Thatcher, a trained barrister, regularly capitalized on male unease around women. She famously turned her handbag into a comic prop, and the word “handbagging“ became synonymous with her tapping into the mores of upper-class Englishmen to conquer political friends and foes alike: “Of course, I am obstinate in defending our liberties and our law. That is why I carry a big handbag.”

Humour in court — where is your comfort zone?
Ask most litigators and judges and they’ll say humour in the Canadian courtroom is a no-no. But listen, and you will hear counsel and judges engage in banter, like sonar between passing submarines. In law, the ingredients of humour and comedic narrative abound. Irony is the sharpest arrow in a barrister’s quiver when cross-examining a lying witness. Humour is a social skill with high and low forms, complete with rules you can learn.

A well-delivered quip during a tough trial can release tension and refresh the ability of the court to follow the evidence. Reaching this level of engagement requires trust-building exercises with the audience. In court, you have to build an expectation of fair-mindedness and attention to detail. It signifies that you, as well-prepared counsel, have a comfortable grip on the facts and applicable legal principles. Don’t even try to make small talk, if you’ve come to court unprepared.

As you get more used to the courtroom, you will find opportunities to be more strategic on your feet. What are the limits to the use of humour in cross-examination, or closing submissions? The tribunal must respect the duty of counsel to use his or her entire array of skills, provided they show respect for the court and its process. The boundaries were stated by Lord Reid in Rondel v. Worsley, and appears in bar conduct codes such as the commentary to rule 4.01(1) of the Ontario rules.

Separate the two elements of the famous description of the barrister’s duty, and you get this:

•    The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

•    Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

If you can encounter moments where you have a duty to make a “distasteful” utterance, where appropriate and respectful of judicial decorum, you may in fact encounter instances where your training and skill as a lawyer require you to employ a sense of humour. A lawyer’s risk of crossing over the line stems not from the quality of the humour.  Your concerns are legal validity and relevance. Where counsel uses lawfully proven facts to impeach a witness’ credibility, the questioning will often subject the witness to ridicule. Provided the humour validly brings out the absurdity of the witness’ prior testimony, you are performing your job as a lawyer.

However, as explained in my January column, the use of sarcasm can cross the line into an offence against “dignity, decorum, and courtesy” because sarcasm relies on ad hominem logic, i.e. an unjustified attack against the person and not against his or her evidence or legal argument.
Support the law, don’t bring it down
Last month, complaints regarding a blog post by a self-styled “legal humourist” regarding the handling of an alleged male sexual assault victim led to its withdrawal from a social media page for Canadian civil litigators. The blog post, entitled “Damsels and Dollars,” tried to make light of the complainant for having brought the allegation. Toronto Star columnist Rosie DiManno, on the same news item, stated that “Sexual assault is no laughing matter,” but she led with derogatory comments about the alleged assailants’ body shape and attire.

Some subject areas are piranha-infested waters. Newspaper columnists like to dip their toes in them because their job is to stir up interest in the news stories. Practising lawyers, on the other hand, are best to keep their feet dry.

We glean from this comparison a cardinal rule of lawyers and humour: Do not make a complainant or seeker of redress a butt of the joke, even if the same joke may seem acceptable in other circles. Lawyers owe a duty to uphold the rule of law and the repute of the legal system. Humour denigrating justice-seekers, whatever the perceived merits of the allegation, is contrary to the bar’s public duty to promote access to justice.

An educational tool
Smart humour is a powerful educational tool. Although he has weathered criticism for some public gaffes, former Supreme Court of Canada justice Ian Binnie has a kind of wit that makes him —– and his reflections on legal process —– approachable. Considered the philosopher king among contemporary Canadian jurists, he uses humorous stories to educate and to humanize the public image of those serving in Canada’s loftiest judicial office. As the quid pro quo for the risks people take to use humour in this way (as it were, pro bono humour), we in the legal community must cut them some slack. Would that others from his court told more such stories.

Ultimately, professional humour is not supposed to make you laugh; it is supposed to help you think about something from an unexpected perspective. You could be a litigator trying to drive home a difficult point. You could be a corporate or in-house counsel dissuading a board from an improvident course. The practice of law, on occasion, calls for what the Italian diplomat Castiglione called sprezzatura, the persuasive art of coded understatement. Wrap your mind around that, and you might see lawyers as very funny people, indeed.

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