The adversarial system of litigation in many common law countries follows the model of a ritualized battle between opponents. Interspersed throughout the litigation process are inflection points where interpersonal conflict becomes particularly prominent. These conflicts are an integral part of the system’s design—with attorneys each acting independently to fulfill their professional obligation to advocate zealously for disputing clients.
How does humor operate in this system? Tracing an overview of key conflict points in the litigation process, this Article analyzes the effect of different humor types identified by communication scholars as having the effect of diffusing or exacerbating those conflicts. This Article describes real-life examples to illustrate how participants in the legal process (lawyers, clients, judges, and jurors) use aggressive humor, ad hominin humor, sarcasm, and affiliative humor. While some humor styles may soften and humanize the interpersonal interactions among the participants, the question arises whether other styles are more effective in achieving the system’s ultimate goal of obtaining legitimate, just, and fair dispute resolution. Questions further emerge about the circumstances when humor backfires and undermines the goals of litigation.
Rachel L. DiCioccio, Ph.D., is a Professor, Harrington School of Communication and Media and Director of the Office of Innovation in General Education, University of Rhode Island.
Laura E. Little, J.D., is James G. Schmidt Professor of Law and Senior Advisor to the Dean, Temple University Beasley School of Law.
This Article was selected as the winner of the 2019 Edward Ohlbaum Annual Paper in Advocacy Scholarship, an honor created in memory of Edward Ohlbaum.