When I sat in the NSW Court of Appeal, I would occasionally relieve a seriously tedious case by sketching my colleagues in the court and the more exuberant barristers appearing before us.
Former High Court Judge
Almost every barrister and litigator in court has chuckled at a wry remark from a judge. But how appropriate is banter from the bench in the midst of what can be, for litigants, life-changing and grave?
Cartoon illustrations by Michael Kirby when he was President of the NSW Court of Appeal, published in Roddy’s Folly by author Damien Freeman and Connor Court Publishing.
Have you ever wondered what judges write down when they take notes at the bench? You might think they’re jotting down important memos, such as, “Check on rule 21 of the Court Procedure Rules, as tested in Aon Risk Services v Australian National University”. Perhaps, during slow hearings, they are setting homework tasks for their tipstaff or composing grocery lists to restock the tea collection in chambers (“don’t forget the milk – skim – need to watch my figure”).
It may come as a surprise to learn that some of Australia’s most prominent judicial figures are having a lot more fun than you’d expect during their time on the bench. “When I sat in the NSW Court of Appeal, I would occasionally relieve a seriously tedious case by sketching my colleagues in the court and the more exuberant barristers appearing before us,” says former High Court Justice Michael Kirby, who was the President of the NSW Court of Appeal for 12 years from 1984 until he was appointed to the High Court in 1996.
“Roddy Meagher [the late former justice Roderick Meagher of the NSW Court of Appeal] was a little bit tubby, therefore suitable for a cartoon. I think I accurately recorded his rotund proportions.”
Former justice Keith Mason replaced Kirby as President of the NSW Court of Appeal in 1996 and can attest to covert jokes being shared between judges “almost every day”. This was particularly so when the mischievous Meagher was involved.
“Being on an appellate court where there were three of us, humour was almost inevitable,” Mason recalls. “There would be a little quip as you go into court or as you come out of court, occasionally a note would be passed between the judges. You would have to bite your tongue so as not to laugh. Justice Meagher was particularly clever and wicked in that space.”
Mason says interchanges provided light relief during hearings, which could become repetitive as the judges sat in court on average for four days each week, 40 sitting weeks each year. However, he notes that humour in court is a sensitive issue for the litigants involved. Even Kirby, who earned the nickname “The Great Dissenter” for having a dissent rate of almost 50 per cent during his 13 years on the High Court, agrees.
“For litigants, a day in court is an extremely stressful day,” says Kirby. “For them, it is not a joke. For them, it is a deeply troubling and anxious dispute that has brought them to court.”
When the joke falls flat
A study by lawyer Jack Oakley and UTS law professor Brian Opeskin published in The Australian Bar Review in 2016 noted that most Australian judges agree court is a serious business and are reluctant to use humour in court due to the risk that litigants might feel their matter is not being taken seriously. While investigating the topic, the authors painstakingly perused a full year’s transcripts of proceedings and judgments from the High Court of Australia and found that just 5,536 of the 6,142,955 words transcribed had any hint of humour. The study notes that “judicial humour is seen as ‘risky’”, as it threatens to undermine judges’ neutrality and can invite public controversy.
Some of Australia’s best judges learnt this the hard way. The former Chief Justice of Australia’s highest court, Murray Gleeson, experienced first-hand how jokes can fall flat off the bench when he delivered a judgment in the case of Green v Green in 1989 when he was Chief Justice of NSW.
“The deceased appears to have maintained simultaneous domestic establishments with all three women and their respective children,” wrote Gleeson. “This is consistent with his apparent success as a used car salesman.”
The remark attracted widespread media attention and elicited a furious letter from the body representing used car salespeople, demanding a “big apology” from Gleeson. For the rest of his career, Gleeson, who was ironically known as “The Smiler” for never smiling in court, specifically cautioned judges against using humour.
“In almost 10 years of dealing with complaints against judicial officers to the Judicial Commission of NSW, I have seen many cases where flippant behaviour has caused unintended but deep offence,” he said in an address to new judicial recruits at the National Judicial Orientation Program in Sydney in 1998.
Risks and rewards
The most obvious risk of using humour in court is that psychologists say it often depends on shock or surprise. As cognitive neuroscientist Scott Weems writes in his book Ha! The Science of When We Laugh and Why, most humour depends on “the kick of the discovery” – that is, thinking one way and then suddenly turning that thinking around with the punch line.
“The risk is that a joke that might shock one person in a courtroom into laughing could easily offend another,” says Bruce Findlay, a social psychologist of 25 years and adjunct teaching fellow at Swinburne University.
Findlay has supervised more than 40 university students’ theses on relationships and humour and believes that humour is a natural and positive aspect of human interaction. He says non-offensive humour also has a place in courtrooms if it can help the judge make a situation seem less threatening to the litigant.
“Humour is a tension-breaking mechanism that people use to relax when they are feeling stressed or tense,” says Findlay. “I’m attracted to the idea of making a legal situation ‘normal’ to participants who are not legally trained.”
A 2016 study by Oakley and Opeskin found that, despite the reluctance of judges to use humour in court, “there have been sporadic collections of amusing legal anecdotes by practitioners and former judges”. Indeed, there are entire websites dedicated to collecting the best of these quips, including Survive Law (survivelaw.com) and Shit Judges Say (shitjudgessay.tumblr.com) which has a Twitter account with more than 2,000 followers.
Study co-author and Clifford Chance lawyer Jack Oakley, who spent almost every day in court as an associate in the Federal Court of Australia after graduating from university, believes context-appropriate humour in court can have benefits.
“Humour eases courtroom tensions and aids digestion of complex reasons,” says Oakley. “It has clear benefits to making the law more accessible to the average person and I believe there are sufficient protective mechanisms in place in the unlikely event that a judge takes things too far.”
Humour is a tension-breaking mechanism that people use to relax when they are feeling stressed or tense. I’m attracted to the idea of making a legal situation ‘normal’ to participants who are not legally trained.
Social psychologist and adjunct teaching fellow, Swinburne University
Andrew Tiedt, a criminal lawyer and Partner at Armstrong Legal in Sydney, notes that judges may need to be more guarded about making jokes in criminal court compared with civil proceedings.
“In most civil cases, no one is going to jail,” Tiedt says. “All that means is there is often a bit more scope for wry humour, or jokes not made at the expense of any party.”
Tiedt, who has spent 10 years as a criminal lawyer working on up to 300 cases per year, emphasises that the type of joke is important.
“I think there’s a time and place for wry observations, not laugh-out-loud jokes,” says Tiedt. “Certainly, people in court deserve to have their matters taken seriously. Even a comparatively minor matter in the scheme of things can be incredibly important to the person in question.”
According to former justice Michael Kirby, a popular topic for wry judicial asides is the issue of when the court is due for a lunch break. He says comments on the subject usually are met with courtroom approval, particularly as the clock ticks closer to 1pm.
“Justice Meagher used to announce at about 12.43, ‘The court is hungry,’” Kirby says. “That was a sign to me, who was usually presiding, that it was time to announce the lunchtime adjournment.
“I don’t think that sort of joke would be hurtful. Indeed, most people in the court would welcome it.”
Kirby notes that, “despite all suggestions to the contrary”, judges are only human beneath their robes. At times their human qualities will naturally surface in court – whether it be their sharp wit or a craving for a sandwich in chambers.
So, does Kirby think we should ban banter from the bench?
“Of course not,” he responds. “If it’s spontaneous, sudden, quickly over, not discriminatory but funny and relieves the stress of the moment, humour can have a part to play.”