Question: When is humor ever appropriate in terms of oral or written argument?

"Blonde Ambition:" the proper use of satire towards the ridiculous use of language

 

 

I often get asked if there is any place for humor in a legal brief or at oral argument, and the answer, of course, is virtually never, no matter how ridiculous opposing counsel or the other party may be in terms of their affect or positions.  Ergo, humor – especially when aimed at a particular person or a group of persons – is rarely appropriate.

But I would say the one exception would be mild humor directed, not at any person or entity, but at disingenuous phrasing or more specifically use of a misnomer by opposing  counsel, such as calling a baby a  "fetus" to divert attention from its personhood or a person convicted of a violent felony a “person involved in the criminal justice system."
 

For example, the recent “space flight“ of the “astronauts“ on the Virgin Galactic spacecraft involving Katy Perry, Gayle King, etc., is of course ripe for satire.  This is especially true in terms of the insistence of some in describing these publicity-seeking space tourists in the same terms as astronauts on the actual Space Shuttle or ISS. Indeed, National Public Radio recently called this brief trip “historic,” as if Jeff Bezos’ girlfriend's space tourism ride should be mentioned in the same breath as Valentina Tereshkova or Sally Ride or even Ham, the first Chimpanzee in space, who beat Bezos' girlfriend by about 64 years. (See https://www.npr.org/2025/04/14/nx-s1-5364460/blue-origin-launch-female-space-flight-katy-perry.}


This is perhaps best illustrated by one of the funniest and most enjoyable satirical videos I have ever watched, namely, Megyn Kelly’s video “Blonde Origin” in which she and two other women visit a facility where they enjoy the sensation of weightlessness, and afterward, insist that they in fact, went on a "space flight” as "astronauts.” 

 

So here, then, is a good example of humor aimed at exaggerated language, with one celebrity woman making fun of the pretension of other celebrity women:

 

 

(See https://www.megynkelly.com/2025/05/02/watch-megyn-kelly-blonde-origin-parody-with-mk-media-team/.) 

 

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Study - Near Death Experiences Often Profoundly Change Views of Work So Much That 75% Switch Careers

 

Near-death experiences alter views of work towards valuing relationships and meaning over pure productivity

 

A retrospective study finds that 75% of those who have had a "near death" experience are so profoundly changed that they switch careers.  See the article at StudyFinds.org:

 

https://studyfinds.org/near-death-experiences-how-people-view-their-jobs/

As the linked article states:

 

The study identified six major themes characterizing how NDEs affect work lives: (1) insights and new realizations, such as believing in continued consciousness after death and seeing a universal connection among all people; (2) personal transformations, including increased confidence, spirituality, and sometimes perceived unusual abilities; (3) reprioritization of work, with reduced importance placed on material success and greater emphasis on meaning and personal fulfillment; (4) job changes, with 75% of participants switching careers after their NDE; (5) changes in motivation, with participants losing interest in traditional work goals while becoming highly motivated by work aligned with their newfound values; and (6) transformed relationships with colleagues, clients, and customers, characterized by greater empathy and viewing business transactions as relationship opportunities rather than merely financial exchanges.

Food for thought the next time a Court is rude or hostile during oral argument.

 

For the records, I have never had a "near death" experience.  I did, however, have a "near life" experience, as I call it, in that we took an entire month off work to complete a home exchange in the Netherlands and also visit Israel and Jordan. I therefore highly recommend finding a way to take at least one long break during your career:  it gives a glimpse as to how life would be without professional deadlines and pressures.

 

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Third post in our series "Gaslighting and Litigation:" how to respond to opposing counsel "gaslighting" during oral argument

In parts one and two of our series on Gaslighting and Litigation, we discussed the definition and prevalence of "gaslighting" and posited "gaslighting" tactics from opposing counsel:

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Note that this is especially likely to occur either when 1) one is making some sort of argument to the lower Court and the case is being handled by another lawyer in your firm and opposing counsel is attempting to take advantage of the fact they have a better knowledge of the record, or 2) one is arguing before the appellate concerning a trial conducted by another counsel.

When gaslighting is aimed at counsel in our hypothetical oral argument, there are several options available.  However, none of these are ideal from the point of view of the counsel being "gaslit:"

• Ignore the attempt to misquote the record on the secondary issue and then continue one's argument as to the main issue;
• Point out to the Court that the citations to the record by your opponent are not "complete" and that the Court should independently review the record on this secondary point, and then one may return to the main issue;
• Stop your argument on the main issue, and assuming you have brought the record with you (and have tabbed it extensively), discuss in detail the facts and/or language cited-to by opposing counsel; or,
• Ask the Court to further brief the issue, such as by way of an informal "letter brief" so one may discuss the facts and/or language opposing counsel refers-to, noting such was not fully briefed and/or your opponent has selectively cited from the record. 

At first blush, it appears the best approach may be the last noted above, as it permits you to not let the issue of the record being quoted incorrectly "slide."  The downside to this approach, of course, is that your opponent, who might not have briefed this secondary issue particularly well (at least in terms of the facts and/or language they are now citing) will have a chance to respond, assuming the court permits additional briefing. 

Therefore, perhaps the second approach is the best, making certain that the misquoting by opposing counsel is noted in a non-confrontational and respectful manner.  One might therefore say (before reminding the Court that "in any event, the main issue is. . .") that the facts and/or language cited by opposing counsel are not entirely true by virtue of stating counsel has:

• Not given the Court the "entire picture" of the facts and/or language as to x, y, or z;
• Cited to facts and/or language "not discussed in any depth" in their brief; and/or,
• Cited to the record as to x y, or z but has not given "any specific page and line cites."

This assumes, as may often be the case, that the Court will find the secondary issue peripheral and not dispositive.  Therefore, the Court may not even ask any questions regarding the secondary issue, and, instead, focus upon the main issue and ignore the attempt by opposing counsel to sow doubt in one's mind about facts which are borderline irrelevant. 

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Who should argue before the Court of Appeal: the appellate or trial lawyer?

Should the lawyer with the most knowledge of the case or the one who has the most appellate experience appear before the Court of Appeal?

One of the questions most frequently asked of appellate practitioners is whether the trial lawyer or the appellate specialist should conduct the oral argument.  The answer might appear obvious —  the appellate attorney — but there are advantages and disadvantages to having either the trial attorney or appellate attorney at the lectern.  

In making this decision one should recall what oral argument entails.  Such an argument requires extensive preparation because it must not be a regurgitation or even a summary of the brief the panel of justices has already read.  Rather, such an argument should focus on the key argument — and, hopefully, the various issues briefed in writing may be distilled into an argument in the singular — upon which the decision should rest.   Preparation is also necessary to be able to quickly rebut arguments made by your opponent as well as to be able to decisively answer questions posted by the court. 

Notice of the argument may be sent out eight to 12 weeks prior to the actual date. [1]  This ordinarily occurs after the parties have given their estimate of how long the argument will take, with each party providing their own estimate.  While there is a maximum amount of time, often 30 or 45 minutes, which may be allotted, there is no “average” or “default” amount.  

That being said, 10, 15, or 20 minutes are common estimates.  Bear in mind that if one reserves time for any rebuttal to your opponent’s argument, these minutes are included in your total time estimate, meaning rebuttal time will reduce the amount of time you have during your initial argument.

It may not be possible to hire someone to conduct the argument

Looking at this from a practical view, there may be financial concerns involved, as a client who may wish to pay to have an appellate brief written may not be able to pay for the cost of having the appellate attorney travel to, and prepare for, an appellate argument.  

On the other hand, the trial lawyer may have a scheduling conflict which may make it impossible to prepare for the argument and/or travel to attend such.  The worst-case scenario occurs if a trial lawyer without sufficient appellate experience who has hired an appellate lawyer to brief the matter then plans to argue before the Court of Appeal but is prevented from actually preparing by an unexpected emergency that arises in another matter.

Ethical implications to consider in deciding who should argue the appeal

This brings us to ethical parameters which may inform the decision of trial counsel to seek assistance. California Rules of Professional Responsibility, rule 11, sets forth the minimum competency required in a particular matter, explaining that such competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”  A lawyer who does not meet or have the time to attain minimal competence may therefore meet this standard by referral to a lawyer who has.

Consider whether the presence of the trial lawyer will constrain the arguments which may be made before the appellate court

The cost of hiring an appellate lawyer to conduct the argument may be money well-spent for a number of reasons, some obvious and some less so.  As but one example, the appellate practitioner may be much better suited to making an argument including an admission about what occurred at trial, such as an admission the trial lawyer may have missed a deadline coupled with an argument that there was no real prejudice from this error.   While the trial lawyer could theoretically make the same admission, given human nature and the healthy ego many lawyers possess, it is less likely they will do so.

Perhaps the best approach is to have both trial and appellate counsel attend, with the appellate lawyer arguing the legal issues and trial counsel present but silent at the counsel table in front of the justices.  This gives the impression the trial lawyer takes the matter seriously enough to both hire appellate counsel and attend the hearing.

Further, while appellate counsel should be prepared to argue the case without any “prompts” from the trial lawyer, it remains the trial lawyer’s presence means it is possible — if the need arises — for the appellate lawyer to discreetly confirm a key fact from the trial lawyer. [2]

1 - Because most appellate courts do not request input from counsel as to available dates, the argument may be set on a date conflicting with your most ambitious trial to date, daughter’s wedding, surgery, etc.  A prompt call to the Clerk of the Court should inform you as to whether or not the Court of Appeal will entertain flexibility in scheduling the argument.   Being prepared with alternative dates which are feasible for all other counsel will smooth this process.

2 - One should not count on being able to interrupt the argument to confirm a key fact with trial counsel.  Still, I have observed appellate counsel who has been asked a very specific factual question as to what occurred at trial then politely ask the appellate panel whether they may briefly request confirmation from trial counsel sitting adjacent to the lectern.  One panel I observed answered in the affirmative and trial counsel was permitted to nod yes and confirm this fact to appellate counsel.