Volume 20, Number 3
April/May 2003

The Risks of Being Funny

By Andrew J. McClurg

Andrew J. McClurg is a professor at Florida International University College of Law. He is author of The Law School Trip, a parody of legal education, and creator of www.lawhaha.com, a legal humor website. He can be reached at mcclurga@fiu.edu.

My 16-year-old daughter, Caitlin, came to me the other night seeking advice. Because this is an event rarer than Pluto colliding with the earth, she got my attention immediately. “I’m entering the Ms. Bartram High contest, and I have to do a talent presentation,” she said. “Everyone else is singing or dancing. Dad, I want to stand out. I want to be funny.”

Smart girl. “Mankind’s greatest blessing,” as Mark Twain described humor, is a fundamental ingredient of successful discourse in all contexts. Just about every expert on public speaking in the world—from Dale Carnegie to Toastmasters International—touts the importance of humor to effective communication.

The empirically documented values of humor—for both speakers and hearers—are almost too numerous to list. In the public speaking arena, scores of studies show that humor helps hold audience attention, enhances audience perception of the speaker, increases interest in the subject matter, builds rapport between speaker and audience, and increases retention of the content.

Redline Humor

But, of course, as with everything in life, you can have too much of a good thing. Used clumsily, insensitively, or in too large a dose, humor can be dangerous and destructive. I remember painfully well the first time I learned the limits of humor in the professional world. I was a third-year law student attending my first legal job interview with a law firm in Tallahassee, Florida. The firm had split off from a much larger law firm in Jacksonville, where my older brother, Doug, was a partner. I walked into the interview room and one of the lawyers stood to greet me.

“Hi, I’m Andrew McClurg,” I said, shaking his hand.

“McClurg? Don’t tell me you’re related to Doug McClurg.”

“Sure am,” I said, happy to have this “in.” “He’s my brother,” I added proudly.

“Well, then, your brother must have told you all about our firm.”

“Yeah, but I decided to come to the interview anyway.”

It was supposed to be a joke. My brother had said only good things about the firm. Eerie silence greeted my quip. The second the words left my lips, I knew I was doomed. The interview proceeded perfunctorily, and I received a perfunctory rejection letter shortly thereafter.

What went wrong? It wasn’t the joke itself. The line usually gets a good response when retold. One instinctive reaction might be that I used humor in an inappropriate setting. Job interviews, after all, are serious business not conducive to laughs. But that wasn’t it either. Imagine if events at the interview had unfolded slightly differently:

“Your brother told us all about you.”

“He did? Well, I’m glad you didn’t cancel the interview.”

Such self-deprecating humor probably would have met with a positive response. My faux pas was that I violated a cardinal rule of humor for professionals: Don’t make others the target of your jokes. People sometimes respond to my interview story with, “Well, if they didn’t have a sense of humor, you wouldn’t want to work there anyway.” But that’s being too kind to me. For all I know, the folks at that firm were hilarious. It was my mistake to make them the butt of my silly one-liner.

McClurg’s Top Ten Humor Dos and Don’ts

Other humor miscalculations have occurred through the years, but for the most part I’ve learned to harness the power of humor in ways that have benefited me both professionally and personally. Take the easy route and learn from my bumbling by following these tips:

1. DO consider the setting. Setting is of obvious importance in determining the type, timing, and frequency of humor. However, there are few, if any, settings in which humor is categorically off limits. For proof, check out Defense Secretary Donald Rumsfeld’s daily press briefings in the war against terror. Not many subjects are as unfunny as terrorism, but Rumsfeld routinely punctuates his briefings with his dry, sharp wit.

I’ve seen humor used to great effect in academic presentations, sermons, even eulogies. Certainly, legal proceedings are serious affairs, but as a Washington appellate court said in State v. Darnell (1975), an armed robbery case, “the use of humor to make a point or relieve the tension of the trial is an accepted trial tactic.” Just be careful! The more formal the setting, the more careful you need to be. In any professional setting, before opening your mouth, send any humorous thought through the mental equivalent of an airport screening checkpoint to scrutinize it for dangerous elements such as offensiveness, insult, lameness, etc.

Mejia v. United States (1990) provides an example of a lawyer who failed to do that. The defendant, convicted of cocaine charges, appealed his conviction on the ground his lawyer had a lousy sense of humor. Well, sort of. The defendant grounded his ineffective assistance of counsel claim in part on this ill-advised attempt at humor in counsel’s opening statement, “I am a local attorney who has been appointed by the Court to represent an indigent defendant. . . . I’m happy to announce that this appointment will help me with my indigent problem.”

Petitioning for certiorari review in the U.S. Supreme Court, the defendant asserted that the lawyer’s joke improperly emphasized his status as court-appointed counsel. Solicitor General Kenneth Starr responded in his brief that “[a]lthough counsel’s attempt at humor may have been lame, the Sixth Amendment does not bar attorneys from using humor in an effort to win sympathy for a defense lawyer and, by extension, for the defendant.” The Court denied review, so good news! Lame humor is not unconstitutional.

While the lawyer in Mejia should be sentenced to comedy school for his weak one-liner, don’t let his experience deter you from adding appropriate light- heartedness even in formal courtroom settings. Every trial lawyer has war stories where humor made for a splendid courtroom moment. Just remember to send all joking remarks through that screening process first.

2. DO be true to your nature in using humor. We’re not all David Letterman. Do what comes naturally and comfortably to you. Don’t try to be someone you’re not. On the other hand, don’t underestimate your ability to be funny.

3. DON’T overdo it. It’s important to use humor in proper doses. You want to use humor as a tool to facilitate the communication of non-humorous material. Too much humor can make you look clownish and distract your audience from the substance of what you’re trying to convey.

4. DON’T use humor to embarrass or ridicule people. Humor that insults, degrades, or puts down other individuals or groups is not well-received and should be studiously avoided. Direct your humor at situations rather than people, unless the person is yourself. Self-deprecating humor is almost always a safe bet. Particularly if you have a personality that comes across as arrogant, you should work at incorporating self-deprecating humor into your oral presentations, whether you’re addressing 500 people at a CLE seminar or one person on a romantic dinner date. It can work wonders on how you’re perceived by others. But don’t overdo it. Too much self- deprecation can come across as feigned or as a genuine lack of self-confidence.

5. DON’T take yourself too seriously. If you can laugh at yourself, you’ll appear to be a secure and likeable person, even if you’re not. If you’ve committed a gaffe that’s obvious to everyone, acknowledge it with grace and humor. One of the most valuable lessons of life is that it’s not whether you make a mistake that’s important to most people, but how you handle it. In my first semester as a law professor, I was assigned to teach Family Law, a subject I knew nothing about. A few weeks into the course, I made the overly optimistic decision to teach the income-tax consequences of divorce. Five minutes into the class, a student blurted, quite rudely, “Professor, that’s not the law.” She backed up her rebuke with a pinpoint citation to an Internal Revenue Code (IRC) regulation. I managed to fumble forward to the next topic, at which point another student raised her hand. More politely, she informed me that wasn’t the law either.

A law professor’s worst nightmare was unfolding. It turned out the divorce provisions of the IRC had been massively overhauled since our casebook was published. Worse. Almost all of my students were enrolled in Federal Income Tax, where they were learning all the new, correct law.

Fifty minutes to go. I glanced down at 15 pages of useless notes and took a deep breath. “Okay, here’s what we’ll do,” I said. “I’ll tell you what the law used to be, you tell me what it is now, and that way we can gain insight into the historical evolution of the tax policies regarding divorce.” The students chuckled and quickly forgave my mistake. In addition to enhancing the way the world views you, not taking yourself too seriously carries with it the important side benefit of helping you avoid a massive coronary before you’re 40. Let’s face it. Being a lawyer can be rewarding, but it’s stressful. We need to be able to laugh at ourselves to help keep our sanity. I began my legal career clerking for a federal judge who always admonished lawyers not to violate “Rule 100.” Most of the clueless lawyers just nodded mutely, but at one hearing a well-known trial lawyer summoned the courage to ask, “Judge, what exactly is Rule 100?” “Rule 100,” the judge said disdainfully, “is don’t take yourself so seriously!”

6. DO plan your humor. Even great comedians plan their humor. Although some of the best humor is spontaneous, planned humor is much safer and, because you’ve had a chance to think about it and tweak it, often funnier.

The delivery is the key. Your goal is “planned spontaneity.” While it sounds like an oxymoron, planned spontaneity is one of the magic secrets distinguishing gifted speakers from the merely competent. You want to make it appear as though your lines are extemporaneous. It’s a skill that can be improved dramatically with practice.

7. DO make a conscious effort to collect humor. Consistent good humor, like every other skill in life, requires effort. If you want to enjoy the benefits of being funny, you have to try (not force yourself) to be funny. If you think of or notice something funny that could be put to use in your professional life, write it down. And don’t be shy about borrowing humor you find in other places. Comedians have been stealing each other’s jokes forever.If you’re fortunate enough to experience an episode of spontaneous humor that works, write it down and use it again. A good joke is too precious to be discarded after one use.

8. DO have confidence in your ability to be funny. Some people never attempt humor in public discourse because they’re convinced they’re not funny. While it’s true that the truly hilarious have an innate gift for humor, everyone can be funny if they work at it. The styles and varieties of humor are limited only by the different types of personalities in the world. A low-key, deadpan style is often funnier than the “over the top” stuff people often associate with good humor. But remember rule number two: Be yourself and don’t try to force things.

9. DON’T use racial, ethnic, sexist, or sexual humor. You would think this one would be a no-brainer, but apparently that’s not so, at least not with regard to sexual humor. I’m continually amazed and horrified by the stories my women students and colleagues relate to me concerning sexual remarks told to them by other lawyers and even law professors.

Jokes that depend on vulgarity or demeaning other groups simply aren’t funny, at least not to anyone with an ounce of class or IQ over 75. Take a cue from the pros. Although a few comedians have built profitable careers on vulgar humor, the great ones, and the ones with the most longevity, keep it clean and non-offensive. Look at people like Dave Barry, Johnny Carson, Bill Cosby, Bob Newhart, and Jerry Seinfeld. Seinfeld once said that if you have to depend on profanity or vulgarity to make something funny, it’s probably not a good joke to begin with.

If you need more motivation to avoid demeaning humor, do a computer search to see how many people—including lawyers—get sued for harassment based, at least in part, on sexual and racial jokes.

10. When in doubt, DON’T open your mouth. When a spontaneous funny thought invades your mind while you’re speaking, you have only a nanosecond to decide what to do with it before it comes streaming out. If you have to think about whether it should be uttered, it probably shouldn’t be. When questions arise, resolve all doubts against the joke.


Humor is a valuable product for lawyers, whose livelihood depends on successful communication. But like most products, it needs a warning label:

WARNING: Apply product sparingly at first. Check results. If people around you are smiling, gradually increase dosage. If people around you are booing, discontinue use and consult a comedian. Do not insert feet in mouth during product use. Failure to exercise care in the use of this product can result in severe injury, including, but not limited to, embarrassment, rejection, loss of friends, black eyes, judicial reprimand, adverse jury verdicts, and discharge from employment. On the other hand, used safely and effectively, this product carries a lifetime guarantee of better communication skills and improved quality of life.

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