I fraught the law

Or, the case against legal humour

What do you call 50 lawyers in search of a little wry amusement? I call it last week, when The Honourable Judge D’Arcy DePoe of the Provincial Court of Alberta kindly tipped his wig in this direction via the Supreme Advocacy newsletter and sent a wave of subscribers my way.

To welcome this eminent group of jurists, Get Wit Quick will today take up the case of legal wit.

When you come right down to it, isn’t the law just a rigorous application of common sense? John Mortimer, the English lawyer and creator of the Rumpole TV series and novels, once wrote how his barrister father pushed him toward the family business. “No brilliance is needed in the law,” the senior Mortimer advised. “Nothing but common sense, and relatively clean fingernails.”

And if the law is common sense, well, then it’s almost funny. “Common sense and a sense of humor are the same thing moving at different speeds,” Clive James wrote. “A sense of humour is just common sense, dancing.

And so we might build a case for law being an inherently funny profession. But in doing so, we would reveal that I have no idea how to build a case, and, ipso facto, I would be thoroughly decimated when opposing counsel points out that if the law were funny, people might actually read the terms and conditions on their ski lift tickets.

And then they could call Amy Salyzyn, law professor and head of the Canadian Association for Legal Ethics, who could repeat what she said in a recent CBC story about a judge who inserted Monty Python lines into a ruling — but later removed them when the media took notice:

“A judge is in fraught terrain when attempting humour,” she said. “The better practice may be to just leave jokes out of written decisions.”

And this is when the case turns in my favour. Yes, leave the jokes out. Sidestep the fraught terrain! Do not attempt legal humour! Legal wit, on the other hand, is fair game.

The law, as John Mortimer wrote in that same reflection about his father, is “the great stone column of authority which has been dragged by an adulterous, careless, negligent and half-criminal humanity down the ages.” 

Legal wit consists of subtly pointing out that our gang of self-defeating apes have somehow managed to create something so valuable. Legal humour, on the other hand, is like scrawling graffiti on that great stone column.

Legal humour often consists of dragging popular culture into the law, which results in decades of awkward Python references or, to cite a particularly egregious U.S. example, this 1992 Florida opinion from a judge obsessed with Wayne’s World. (A schwing and a miss, as he actually wrote.)

Legal wit brings the law out of the courtroom and into the culture. That’s where you find gems like the recent Hint of Lime lawsuit, well skewered on Kevin Underhill’s Lowering the Bar blog, in which an aggrieved lawyer complains that Tostitos have neglected “the growing American appreciation for aspects of Hispanic cultures, where the lime has long been afforded primacy among fruits” by not including actual limes in their tortilla chips.

Or, more pungently, legal wit creates a perfect turn of phrase like Benjamin Wittes’malevolence tempered by incompetence,” which deserves to outlive the cruel morons it described.

In closing, esteemed jurists, I must admit that I’m just a simple caveman. Your world frightens and confuses me! But I’ll paraphrase U.S. Supreme Court Justice Potter Stewart when I say: I know wit when I see wit.

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Quick quips; lightning

“Justice is my being allowed to do whatever I like. Injustice is whatever prevents me from doing so.”
Samuel Johnson

“If you can eat sawdust without butter, you can be a success in the law.”
— Oliver Wendell Holmes Jr

“The art of cross-examination is not to examine crossly.”
— John Mortimer


Get Wit Quick No. 109 may please the court, but then again, it may not. Thanks to Emily for sending that great Clive James line, to Jon for discovery, to Tyler for legal review, and to Ryan for reasonable accommodations. Chewing your fingernails is one way to keep them clean. Limes are certainly better than lemons. I was once told that jurisprudence was just a fancy word for photocopying. Precedents were established in my 2014 book Elements of Wit: Mastering The Art of Being Interesting. Please approach the bench and tap the❤️  below.