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Sarcasm: A Trial Advocacy Skill Lawyers Really Need…….. NOT!

I grew up in south Alabama.
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I mean, SOUTH ALABAMA.  I thought anybody who lived north of Montgomery was a Yankee.

But I heard my first sarcasm from a genuine Yankee when I was ten years old.

 

I met Jack Smart in 1964 on day one of Vacation Bible School at the First Methodist Church in Greenville, Alabama.  Probably because he was an obnoxious thirteen year-old, Jack’s parents exiled him from their home in Boston to spend the summer in Greenville with his aunt who attended my father’s church.

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At the end of that first day, Jack and I were standing in the portico between the sanctuary and the educational building and offices. 

On that bright, beautiful morning, our Bible School teachers had told us that we’d all be playing a game of softball at the end of the day.  Now it was the end of the day and Jack and I were staring out at a gully-washer of a thunderstorm.  Jack said, “Great day for a softball game.”

I looked at the big water-puddles in the grass and thought, “This is a terrible day to play softball.”  So I said something like, “I don’t think this is a great day for softball.”

Jack turned and said, “No you idiot.  I was being sarcastic.”

I might not have known what sarcasm was, but I knew what an insult was, thus confirming what all Southern children are taught: “Yankees are rude.”

Yeah, he was rude, but there was something engaging about Jack that I now know was charisma. 

Jack was clearly not just a Smart kid, but also a smart kid.  And being a fairly smart kid myself, I quickly learned that this thing called sarcasm could be funny.

So that summer, I learned to be sarcastic.

After a few weeks of hearing Jack’s sarcasm sandwiched between pimento cheese sandwiches, learning to recite Genesis, Exodus, Leviticus, Numbers, Deuteronomy and the rest, and hearing lots about the Sermon on the Mount, I was getting pretty skilled at sarcasm and ready to try it out on my parents.  [Clearly I wasn’t paying very close attention to what I read and heard about that particular sermon.]

I don’t remember what I said at dinner that night.  But I do remember that I’d only taken a few bites when I let loose a juicy bit of sarcasm – probably it was something aimed at my big sister.

The gales of laughter I expected from my mother and father did not materialize, and I was promptly removed from the table and sent to my room.  The remainder of my meal remained on the table… and breakfast was twelve hours away.

Okay, so adults don’t like sarcasm.  But what do they know?

Well, adults are well aware that sarcasm can be funny.  We Baby Boomers grew up with Don Rickles then Chevy Chase and Bill Murray, who we shared with the Generation X kids until they moved to the sarcasm of the Seinfeld gang.  And Jon Stewart, Sarah Silverman and a flood of other comedians came along just in time to inform the Millennials that expert proficiency in the art of sarcasm is essential for all social media interactions and pronouncements.

But from my observations, sarcasm in the courtroom knows no generational bounds, and is out of place, ill-advised and misguided – no matter the age of the lawyer or witness employing it.

Sarcasm comes from the Greek σαρκασμός (sarkasmós) which is taken from σαρκάζειν (sarkázein) meaning “to tear flesh, bite the lip in rage, sneer”. [Oxford English Dictionary]

Merriam Webster supplies this definition, “a sharp and often satirical or ironic utterance designed to give pain.” 

Many of us remember that jerk in our eighth grade history or English class who felt so superior to the rest of us that he hardly uttered a phrase that was not “cutting someone down” with his sarcasm.  Sure most of us were guilty of laughing at his sarcastic putdowns… unless they were aimed at us.

According to Maureen O’Brien, parenting expert and founder of Destinationparenting.com, sarcasm emerges in the early teen years when, “Young teens are embarking on a more sophisticated level of thinking.  This means that irony and wordplay will now become a part of her dialect, and using them in regular speech will in part help her feel more like a grown-up.” 

But as you are well aware, some kids never grow up, and that obnoxious kid from the eighth grade never really goes away; he works at your firm or you’ve been up against her in a trial.

If you haven’t had the experience of reading a brief that was liberally laced with sarcasm, congratulations.  And if it’s in the brief, you can be pretty sure that you’ll hear it in his or her opening, during cross-examinations and closing.

And that’s a good thing.

Don’t you wanna’ know why?

It’s because the sarcastic lawyer puts himself in danger of irreparably damaging his or standing with the judge and/or jury, and muddling the facts.

Because of the rapidly growing and pervasive use of sarcasm in our society, over the last few years there have been quite a few sociological, psychological and neurological studies on the effects of those employing it and on those hearing it.  There was even a study published in November 2015 that declared, “The Highest Form Of Intelligence: Sarcasm Increases Creativity For Both Expressers And Recipients.”(1)

So sarcasm is good, right? 

Wrong.

There are two important caveats within the study regarding the use of sarcasm.  Number One: “Sarcasm is an instigator of conflict.”  And Number Two: “Expressing sarcasm to or receiving sarcasm from trusted others increases creativity without elevating conflict.”

The underlined phrase highlights the results of this and numerous other studies.  How sarcasm is interpreted and judged by listeners depends on the level of trust, history of communication, familiarity and duration of the relationship between the speaker and the listener.  It is impossible to firmly establish these things during the course of a trial.

There are numerous reasons for never using sarcasm during a trial.  First of all, there is a great deal of danger that judges or jurors will hear your sarcasm and immediately put you in the same dustbin as Dirk, that obnoxious kid in the eighth grade.  Or he or she may be sick of hearing sarcasm from a spouse, parent or child and the last thing they want is to hear it during a trial.

Here is the succinct conclusion of another study.

“Sarcasm is a form of ironic speech commonly used to convey implicit criticism with a particular victim as its target.”(2)

“The sarcastic message is also perceived as more insincere, humorous, impolite, non-instructional, and conveying a somewhat unclear message.  The speaker was also seen as being smug. Basically, sarcasm was perceived negatively, as a means of verbal aggression.”(3)

So the sarcastic lawyer may think he’s being humorous, but the baggage (above) that comes along with that humor, is a real heavy load.
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Want some more reasons for not using sarcasm in the courtroom?  Fine, I’ve got ‘em.  “It takes longer for sarcastic comments to be processed.  The brain has to do more work in figuring out the metamessages,” within sarcasm.  “If a speaker wants to get a certain message across but uses sarcasm as a means to do it, there is always a possibility that the listener will not interpret the comment as the speaker intends.”(4)

So if you are sarcastic in court, not only will a bunch of people quite likely think you’re a jerk, they’ll also have to work harder to figure out what you are trying to convey; and who is really gonna’ work hard to understand a jerk?

And one last thing.  If you decide you want to be cute and witty with a sarcastic quip when, for example, you don’t like the answer that your opposing counsel’s witness gives, you had better have an all-male jury…

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…since significantly more men than women find sarcasm funny.  And you had better be north of the Mason-Dixon line because in the study(5) (cited) 56 percent of Northerners found sarcasm humorous while only 35 percent of Southerners did.  But average those two and you still find that 55% of the public doesn’t find sarcasm too dang funny.  [So you see, back in 1964, I wasn’t simply a dumb hick who didn’t understand sarcasm, I was simply a Southerner.] 

My point is this:  If you want to win more trials, make sure you are as sarcastic as possible in your briefs, your openings and closings, when questioning witnesses, and especially in all your communications with judges – in and out of court.

Footnotes:

  1. The highest form of intelligence: Sarcasm increases creativity for both expressers and recipients, Organizational Behavior and Human Decision Processes, Volume 131, November 2015, Pages 162-177, Li Huang, Francesca Gino, Adam D. Galinsky http://www.sciencedirect.com/science/article/pii/S074959781500076X
  2. McDonald, Skye. “Exploring The Process Of Inference Generation In Sarcasm,” Brain And Language 68 (1999): 486-506
  3. McDonald, Skye. “Exploring The Process Of Inference Generation In Sarcasm,” Brain And Language 68 (1999): 1470-71
  4. Sarcastic ‘Like’: A Case Study In The Interface Of Syntax And Semantics, Philosophical Perspectives, 22, Philosophy Of Language, 2008
  5. Regional Variation in the Use of Sarcasm, Journal of Language and Social Psychology, Megan L. Dress, Roger J. Kreuz, Kristen E. Link, Gina M. Caucci http://jls.sagepub.com/content/27/1/71.abstract



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