Several people asked what I thought about humor in legal writing, a topic I touch on in my Academic Legal Writing book. Here’s my thinking on the subject:
1. Humor can be valuable: It can keep the reader interested, put the reader in a good mood, and make the reader feel something of a psychological link to the author. Humor in article titles can also help the article be more eye-catching and more memorable. I still remember an article title I saw in the early 1990s, “One Hundred Years of Privacy”; this both communicated the article’s essence (a look back on the privacy tort a century after Warren and Brandeis first proposed it), and humorously alluded to the novel “One Hundred Years of Solitude.”
Another article was called “A RFRA Runs Through It,” echoing the title of the movie “A River Runs Through It.” People who are familiar with religious freedom law know that RFRA is the Religious Freedom Restoration Act, commonly pronounced “riff-rah,” not that different from “river.” The article’s thesis was that after the enactment of the federal RFRA, the entire U.S. Code should be read as if RFRA had amended each statute, and changed the policy balance struck by the drafters of each statute — hence RFRA runs through the entire Code, so the joke is apt. Plus the article was published in a symposium conducted by the Montana Law Review, and the movie was set in Montana. Cute.
2. At the same time, you should be very careful about trying to be funny in your legal writing, for several reasons.
a. We amateur comedians notoriously overestimate how funny our jokes are.
b. Even an amusing gag distracts the reader from your main point. To be effective, the joke must be interesting and memorable enough that its value overcomes the distraction.
c. Some writers find a joke so appealing that they use it even when it doesn’t quite capture the point they are trying to make, or when it is surplus that doesn’t add anything valuable. Better use serious words that mean exactly what you need to say, no more and no less, than a joke that means something slightly different, or that takes up words that could be used for something substantive. (Humorous subtitles are common offenders here: They often add nothing besides the joke, and the joke’s place can often be effectively taken by a subtitle that actually communicates something useful about the piece.)
d. With some topics (abortion, the death penalty, and the like), some readers will find any humor to be jarring. For instance, “Creole and Unusual Punishment: A Tenth Anniversary Examination of Louisiana’s Capital Rape Statute” — a real title — contains a pun that’s amusing in the abstract; but, when applied to the death penalty, the joke might alienate more readers than it amuses. It’s hard to know for sure, but you should at least consider the risk.
e. Sarcasm is especially risky, because it can make your work seem disrespectful, and can make readers feel that you’re trying to persuade them with cheap shots rather than sober argument.
f. Being funny in print is hard, but being funny under stress and time pressure is harder still. So if you’re doing a rush motion or brief, or a law review write-on submission, and won’t have the luxury of soberly reflecting on your draft a couple of days later, avoid attempts at humor.
3. Finally, if you do use humor, be sure you review the joke on several occasions to make sure that it really works, and ask friends whether they agree. If you’re in doubt, err on the side of sticking with the serious.