Just when DC Dicta thought Justice Antonin Scalia had said everything there is to say on appellate advocacy during his media tour promoting his new book Making Your Case: the Art of Persuading Judges, the latest issue of the ABA Journal landed on DC Dicta’s desk – giving us yet another tidbit.
This time, Scalia – who is not afraid to crack jokes from the bench - warned that attorneys probably shouldn’t try to be funny while arguing before the Supreme Court and other courts. After all, he said, if you’re going to flop, you don’t want to do it in front of judges deciding your case.
“The game is not worth the candle,” Scalia told the ABA Journal in a Q&A that appears in the May issue. “You may not be as good a humorist as you think, because appropriate humor takes a real sense of what you can get away with, what is condign for the circumstances. And not a lot of people have that feel. And secondly, not every judge has a sense of humor.”
“So, [the book's] advice is, don’t take a chance,” Scalia continued. “Oh, it can be effective on occasion. We say in the book sometimes when a lawyer does have this skill, with a very gentle and often self-deprecating remark can relieve the tension and make the exchange much more conversational and friendly.”
But if a judge is the one making a funny, word to the wise: Laugh.
“You should always, of course, display appropriate appreciation for any attempt at humor by the court,” Scalia said.
When asked what that meant, Scalia replied: “It means you should laugh at their jokes.”