Chapter 17 Judicial Jesting: Judicious?

• Jurisdiction: New York

Chapter 17 — Judicial Jesting: Judicious?

Many warn against using humor of any kind in a judicial opinion. Nearly all warn against using humor that does not assist the opinion’s utility, goes outside the record, or ridicules or offends a litigant, the disinterested reader, or a cause of action.²¹⁸ Questionable humor has no place in writing meant to create precedent and reflect reasoned judgment. And this assumes that the opinion’s author is funny. In the case of judges, that’s rarely true. There are few funny judges, after all—only funny people who’ve made career mistakes.

The master, Justice George Rose Smith, once wrote, “Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.” ²¹⁹

Lightning wit is typically unenlightening. A judicial opinion demands propriety and professionalism. Humorous opinions, written to satisfy some need to be humorous, can cross the line. Some humor offends by exclusion and false notions of superiority. Humor also deflects from accountable decision making and judicial responsibility. It’s one thing to have a sense of humor and grace on the bench, or to be clever during an after-dinner speech. It’s another to express humor in writing. As recited in a judicial disciplinary opinion, “Under the heading of ‘Ancient Precedents’ in the canons of judicial ethics adopted in 1924 by the American Bar Association this appears: ‘Judges ought to be more learned than witty; more reverend than plausible; and more advised than confident. Above all things, integrity is their portion and proper virtue.’” ²²⁰

Dean Prosser agreed. He wrote that “the bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig.”²²¹ That, however, did not stop him from compiling opinions for his book on the subject, The Judicial Humorist. Dean Prosser doubtless took his title from Gilbert and Sullivan’s The Mikado. Sir William Gilbert, a lawyer, had the Lord High Executioner sing about persons who could be executed and not be missed, including “that Nisi Prius nuisance, . . . The Judicial humorist—I’ve got him on the list!”

Justice Cardozo’s approach to humor was more tolerant than Dean Prosser’s, but Cardozo did not recommend it. He explained that “the form of opinion which aims at humor . . . is a perilous adventure, which can be justified only by success, and even then is likely to find its critics almost as many as its eulogists.”²²² New York State judges have been on opposite sides of this question. In the Appellate Division, First Department, for example, Justice David Saxe rejects humor, while the late Justice Richard Wallach favored it as effective and memorable. ²²³

Effective and memorable is truly funny humor that pokes fun at law or society, is in good taste, and does not belittle the litigants, demean the judiciary, or make future litigants apprehensive. And the humor must not dominate the opinion. The humor must be brief.

Judicial humor also has no place in important opinions. Would our perception of Marbury v. Madison²²⁴ be different if Chief Justice John Marshall had used a few off-color asides? What if in Brown v. Board of Education²²⁵ Chief Justice Earl Warren had been a punning prankster?

But humor is acceptable when it’s inherent in, relevant to, or complements the subject.²²⁶ Two examples. In Peevey v. Burgess,²²⁷ the Appellate Division, Fourth Department described how the defendant, a tobacco chewer, had attached a...