As a case-in-point, Mr. Baruch related a situation during a high stakes oral argument in which he was able to use humor to get his point across and captivate the panel. “Last time we had a drizzle like that, Noah built a boat,” declared Mr. Baruch. Just before this statement, opposing counsel had tried to minimize an important legal issue through the former analogy. Mr. Baruch’s twist on the analogy sent one of the judges into an uncontainable laughter that clearly showed he was convinced of Mr. Baruch’s position. In that moment, humor provided a shortcut to persuasion.
To that end, Mr. Baruch is hardly a stranger to more unorthodox methods of persuasion. In fact, the panel served as an opportunity to address his involvement in the perhaps now infamous “hip-hop” amicus brief that Mr. Baruch filed before the Supreme Court of the United States along with several hip-hop artists in the case of Jamal Knox v. Commonwealth of Pennsylvania. The brief filed in support of a petition for a writ of certiorari suggested that a school unfairly punished a student using hip-hop to express himself in reaction to grievances against his school’s faculty. In particular, the brief emphasized that hop-hip culture has a long history of expression to that was relevant for interpreting Mr. Knox words and which defied the idea that he was intending to genuinely threaten anyone with his music. Fascinatingly, the brief did not cite a single legal authority or opinion, relying instead on a vast library of materials from the world of hip-hop. The brief sent ripples through the dual worlds of popular culture and the legal profession, demonstrating the power of something outside of the norm to have broad impact.
While the Knox example perhaps demonstrates a more extreme approach, the panel discussed more subtle ways that an advocate can connect with the bench. References to music, movies, and television can appeal to the human element and pique the interest of the audience. A clever reference can entice further reading. An analogy or metaphor that connects to the audience’s cultural framework can be especially persuasive. In a watershed moment, the panel recognized that, just as classical literature once gave a common cultural experience that people used to help express and explain their experiences, so too does the modern forum of entertainment. One of the big takeaways was recognizing how pop culture can serve as a common language for expressing important ideas in the law. Afterall, these references are commonly found in how people speak in real life, so why not introduce it in advocacy?
The panel did, however, stress caution in using these techniques tastefully. As a starting point, Judge Owens stressed a good litmus test, “is it self-indulgent or does it advance the case?” In another sense, is the reference going to go over the audience’s head? This can be especially problematic when there is an age gap between the advocate and the bench. This suggests utility in running references past others before committing them to a signed and filed brief or making them during oral argument.
The other challenge to consider is the possibility that a reference could be seen as offensive. Examples of this included a country music song that could be construed as racist, or the instance where a prosecutor’s attempt at humor seems to make light of their serious role in the criminal justice system.
In all, however, the panel emphasized how an appropriate cultural reference or humorous take can have a lasting impact. Judge Nyugen concluded by explaining how more colorful briefs can often be the ones that judges want to read over and over again. For advocates, this insight into how judges approach the topic was very insightful and should empower attorneys to seriously consider how they might apply it in their practice.