A Conversation with Judge William J. McCurine, Jr. and Kenneth C. Turek, Esquire

Reported by Court Reporter Rosalie Kramm

Judge William J. McCurine, Jr. and Kenneth C. Turek, Esquire sat down with Louis M. Welsh American Inn of Court Barrister Katie Pothier and Associate Melisa McKellar to discuss the use of humor at trial. Below is an edited transcript of the conversation, which was reported by Court Reporter Rosalie Kramm of Kramm Associates.

U.S. Magistrate Judge William J. McCurine, Jr. has been on the bench since 2004. A San Diego trial lawyer before taking the bench, McCurine is a past winner of the San Diego County Bar Association Silver Tongue Extemporaneous Speaking Competition. He is longtime Master and former secretary/treasurer of the William B. Enright American Inn of Court.

Kenneth C. Turek, Esquire is a trial lawyer and partner with the law firm of Endemen, Lincoln, Turek & Heater. He has won the Silver Tongue competition twice as well as the San Diego County Bar Association LAF (Lawyers Are Funny)-Off Competition. Turek is a past president of the William B. Enright American Inn of Court, where he has been a Master since 1991.

POTHIER: We are here to talk about the use of humor in the George Zimmerman trial. Earlier, we introduced the joke Don West told during his opening statement. I will do my best to paraphrase it. First, West set up the joke, telling the jury, "I'm going to try something here a little bit different. Sometimes you need humor to defuse a situation. Sometimes you need to laugh and use humor; otherwise, you'll cry in certain circumstances. So I'm going to tell you a joke. Please don't hold it against my client if you find this inappropriate." He proceeds to tell a knock-knock joke, and it goes something like this: "Knock, knock. Who's there? George Zimmerman. George Zimmerman who? Thank you very much. You're on the jury."
The joke falls flat, nothing. Don West then says, "Come on, nothing? I don't get anything from that?" He was sort of egging the jury on to respond a little bit and laugh and give him something, and they don't. There was definitely an awkward sense following the joke, almost as if people didn't know how to react. The courtroom is silent. So, as we were discussing lessons learned from the Zimmerman trial, we thought it would be interesting to ask when it is appropriate to use humor in court, and are there times when it is not appropriate to use humor in court?

TUREK: I know Don West. He was a law school friend of mine, and he is a very measured person. He is not some prankster. And I know that the reason he told the joke was to change the tempo in the courtroom. There was a real dramatic opening by the prosecutor, passionate, and Don thought that he wanted to do something different and lighten the mood. He didn't. But if you listen to the tape carefully, you'll see that when he says, "Nothing?" there is laughter. We don't know what the jury was feeling, but I think at that moment [West] really became vulnerable and became almost like a human being, maybe a little foolish looking, and it might have gone to his benefit. His "mistake" may have helped.

POTHIER: So you thought it was calculated?

TUREK: Well, I don't know if it was intentional to flop, but it was intentional to be something different than the dramatic opening that was done by the prosecutor. He wanted to do something different, and he sure did. So whether it worked or not, that's to be debated.

POTHIER: Do you believe that inured to West's benefit throughout the trial?

TUREK: We lawyers think we have to be perfect in the courtroom. We don't; it is okay to be human. Now, when you talk about humor, you have to be real careful with it.

POTHIER: Are you saying because it was a criminal trial, and we've got a murder-alleged-a murder of a young man? How does that play into a lawyer's decision to use levity in those circumstances? This is the opening statement, your first parlay in front of this jury, other than your voir dire.

TUREK: Well, I don't know what went on in his mind. I have a couple of rules that I always use. First and foremost, the judge is always the funniest person in the courtroom. Number two is, only self-deprecate, never make fun of anybody else. The only time that I have found that humor is appropriate is when-other than those two ideas-is in closing argument, when you ridicule an argument, but you never ridicule the lawyer.

McKELLAR: Your Honor, do you agree with Mr. Turek on that?

McCURINE: I'll ignore rule number one, which is the judge is the funniest one in the courtroom. I never take lawyers honestly when they laugh at my jokes. I always assume they are operating under rule number one so I ignore it. But self-deprecating humor is absolutely critical.

Jurors already think that lawyers are arrogant, self-inflated, and egotistical, and they are expecting, almost in a fearful way, the trial to be full of antagonism and meanness. When instead, a lawyer uses self-deprecating humor, the jury is immediately disarmed. They go from being tense and looking at you with suspicion, to saying, "Oh, he is just another guy. She is just another lady. We could go out and have a beer if this trial was not in the way." So you never make fun of the opponent. You can make fun of the opponent's ideas. You never make fun of a witness, unless, for example, you have observed during the trial that the jury strongly dislikes this witness, and they think the witness is lying. Then, you can use sarcasm, but it shouldn't be mean.

There is a little rule that I follow that humor is always appropriate when it's appropriate. Now, that's a very circular argument, but as you sit on a trial, you know that the jury is not with you yet. You can just sense it. It is just a feeling. This is not a time to use humor. If you do use humor and it bombs, you immediately say, "Look, let me tell you what I was trying to do." Just be very honest, "That was a total bomb. I'm sorry. Can we move on past this?" You know, don't force it. Don't follow it up with another bad joke. Just get off, you know, and move on.

TUREK: Gee, I've never had that experience, other than probably, like, 10 times this morning.

McCURINE: I remember trying a case that was a two-month trial in North County, so I had to live up there from Sunday to Thursday and go home on the weekends, but spend the weekends working. One day the jury was out, and we were arguing some piece of evidence, and the situation was tense with the lawyers and the judge, because this piece of evidence was very important, and you could tell the judge didn't quite know which way to go, and he wanted to do a good job. So, it was my turn to argue, and opposing counsel was in his chair, and he was moving around, and it started squeaking, you know, but it actually was like the squeak of a bed, like people making love. So I started my argument. Then there was all this squeaking. I stopped for a moment and I said, "Your Honor, you have to forgive me, I haven't heard that sound in so long it made me lose my place." And so it just lightened the atmosphere, and he said, "Well, Mr. McCurine, we need to get on with the trial so you can get home." So humor is always appropriate when it is appropriate. You just have to have a feel for when you can and cannot use it.

POTHIER: Any stories, Ken, you can share?

TUREK: I've had everything from the red pen in the top pocket that bleeds into my shirt and saying I was shot. One time I had my belt break, I was on the road, I had some old belt that I'd found, and I put it on and it came out like a snake outside of my jacket. I joked about that. I used it in the argument.

McCURINE: I can't remember who the trial was in front of, but it was Superior Court. I was defense counsel in this one, and a piece of evidence had fallen to the floor. I'm in my closing argument, and I bend down to pick it up, and my pants ripped right down the middle. And I stand up and I look at the jury and I say, "And for my next act," and they laughed, and I knew that they were with me. They weren't going to slam me. I know we won, but I don't remember by how much.

Another great example is from a case involving a very, very serious rollover case against Ford in Superior Court. Ford had a phalanx of attorneys with all the high-tech equipment you could imagine. The plaintiff's attorneys deliberately said they would do nothing high-tech. They would use an ELMO, but they wouldn't even take their laptops. They would use note pads. And Ford had everything you could imagine. And so there was an ELMO. So at one point one of the attorneys went up to the ELMO, and he had a legal pad, and he tore off a sheet of paper, and he tore it right down the middle, and he said, "This is my split screen." The jury howled. They got a verdict of maybe $120 million or something like that. So there was a use of humor that actually advanced the client's interests and made the jury identify with that side of the case even more.

McKELLAR: Judge McCurine, is your view on the use of humor at trial different from when you were a trial attorney?

McCURINE: I would say it is more refined. A judge appreciates humor under certain circumstances. Number one, if the humor fits in the context of the case; number two, if the humor doesn't slow things down. The best humor is not just a random joke. Lawyers who use humor without context slow down a trial. It's boring. On the other hand, when it is in context, then it can actually advance the lawyer's argument. I'd say that lawyers biggest problem is they tell jokes out of context. They tell a joke, rather than humor in context. Don't do that.

McKELLAR: And that seems to be the difference between having a preplanned joke and something coming up organically with whatever is going on.

POTHIER: Does the judge have a role, Your Honor, if the joke seems to cross the line, if you can tell the lawyer is pushing it, in terms of the humor or where he or she is going with it?

McCURINE: I'll stop them because if the humor takes on a racial or stereotyping characteristic, I say, "Okay, thank you. You know, I really just want to hear the argument." I want to stop it because it saves time. You also want to stop it because you don't want the other lawyers to think this works and then try the same thing.

McKELLAR: Do you believe that humor lends itself to certain types of cases versus others, for example, criminal versus civil?

TUREK: I don't think there is any distinction. I think, you know, sitting here listening to what has been said, and the way you interacted, I think "organically" is such a great way of putting it. That is the key. If you are not funny outside of the courtroom, don't try to be funny in the courtroom. If you are funny outside the courtroom, hold back and bite your tongue, because the courtroom is not a place to be funny. But I don't know about the difference. I think that both [types of cases are] so serious, and what we do is so serious. Because of that seriousness, we put so much pressure on ourselves.

I think humor can be a safety valve in my life, and it helps me stay centered and really realize that the world out there doesn't care about whether Exhibit 716 got in, and we're all ready to jump off the building. So I think humor helps in that way. It is okay to joke about what is going on, just to take some of the pressure off of ourselves.

McCURINE: People deal with stress in a number of different ways. They use drugs and alcohol. They become abusive in their relationships. They go to the gym and work out. And they can use humor. Humor is the ability to laugh at yourself. It's just a way of releasing pressure, and you put life back in context. You just move on. You still have to take out the garbage.

POTHIER: Do you see how the use of humor can play even visually with the client there, because sometimes it's the client's first interaction, and presence, even in the courtroom, maybe at the trial.

McCURINE: Clients, I think, like appropriate humor in their lawyer, but they don't want their lawyer to be joking all the time. "I'm not coming here for you to make me laugh. I'm in trouble. Are you going to be able to get me out of it?"

KRAMM: Can I say something, as a court reporter?

McCURINE: Oh, yes.

KRAMM: When someone is not authentic, because they know they have to be self-deprecating, it is painful, from my perspective, for that person.
Attorneys do it because they know that it would be good to have humor with self-deprecation as part of their presentation. It comes across so non-authentic that it's painful, and I just cringe, and I can tell everyone there is saying, "What are they doing?" It can't be something forced.

McKELLAR: I think most people don't like to watch other people be embarrassed. So if you're on a jury, and you hear a joke that falls flat, you feel so embarrassed. It's not a good feeling.

Rosalie A. Kramm, CSR, RPR, CRR, is president of Kramm Court Reporting in San Diego, CA.

© 2015 ROSALIE A. KRAMM, CSR, RPR, CRR. This article was published in the January/February 2015 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.