Illinois Association of Defense Trial Counsel
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IDC Quarterly | Volume 20, Number 4 (20.4.48)
The Defense Philosophy
By Willis R. Tribler
Tribler Orpett & Meyer, P.C.
Avoid Sarcasm and Attempted Humor
When read back by a court reporter, testimony does not always sound the same as the witness intended
when it was first spoken. This proposition is particularly true of sarcasm and attempts to be funny, which rely
on tone of voice. Sarcasm and humor can cause problems on the cold record, and witnesses should be told not
to use them.
One of the weakest possible excuses is to claim that the record distorted the meaning of testimony. This
“distortion” arises from the difference between the spoken word and the written word. The record is not
designed to show intention and meaning, only what was said. Sarcasm and humor do not always appear from
the record to be sarcasm and humor. Using them can lead to significant impeachment.
Let’s look at some examples of being “cute,” both in testimony and in exhibits.
During the 1995 O. J. Simpson murder trial, a glove company representative named Richard Rubin
testified that the blood-stained gloves that were found in two different locations, including the murder scene,
were the same make and model as the gloves that Simpson had been wearing in an earlier photograph.
Upon cross-examination by the defense, Rubin said that he was completely impartial and did not have any
agenda for one side or the other. The cross-examiner then showed Rubin a letter that he had sent to the
prosecution setting forth his opinion and closing with, “Maybe I can make it to the victory party.” When
confronted with this sentence, the witness said that it was “made in jest.” No matter — the damage was done,
and the witness’s claim of impartiality was seriously discredited. LAWRENCE SCHILLER & JAMES WILLWERTH,
AMERICAN TRAGEDY: THE UNCENSORED STORY OF THE SIMPSON DEFENSE 624 (1996).
Let’s look at an unfortunate example of sarcasm.
In an auto case, the plaintiff’s passenger was called to testify for the plaintiff. The defendant’s cross
examiner asked the witness if he and the plaintiff were close friends. He got more than he could have hoped for
when the witness replied in a sneering tone, “He’s not my friend. I can’t stand the guy. I always ride around in
cars with my worst enemies.” After the cross-examiner spent a few minutes disproving this testimony, in part
by showing that the witness had been the best man at the plaintiff’s wedding, the witness responded that he
was just making a sarcastic answer to a snide question. By the time this exchange was over, the jury concluded
that this witness was a smart aleck who refused to give a straight answer to a simple question. The effect of his
otherwise useful testimony was greatly diminished.
I have another example.
The plaintiff in a commercial case became exasperated at his deposition with an unctuous and whiny
defense lawyer and responded as follows in an offended tone of voice:
Q: How much, if any, money do you claim the defendant owes you?
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A: He doesn’t have to owe me any money for me to sue him. I have the right to sue him if I want to.
If I wanted, I could sue him just for the hell of it, even though he didn’t owe me any money. Isn’t that
right? You tell me.
Q: Are you telling me that at least part of your claim was for money that he did not owe you?
A: You’re so smart. You tell me.
After the plaintiff testified at trial that the defendant owed him a considerable amount of money, the court
reporter read his deposition testimony in the flat and dispassionate voice that reporters use so well. The
plaintiff then tried to explain that he did not mean that he was not entitled to recover and was only giving the
defense lawyer “a hard time” in response to the lawyer’s annoying questions. The jury responded to this
explanation by giving the plaintiff a hard time on the verdict form.
Your witness must understand that he or she cannot give into annoyance or try to be funny or sarcastic.
Neither can you. Again, “I didn’t mean it the way it came out” will almost never repair the damage. Don’t try
to be funny or sarcastic and don’t let your witness do it. In a social situation, sarcasm and misplaced humor
could get you a punch in the nose. In a trial, the result can be much worse.
About the Author
Willis R. Tribler is a director of the firm of Tribler Orpett & Meyer, P.C. in Chicago. He is a graduate of Bradley University and the University
of Illinois College of Law, and served as President of the IDC in 1984-1985.
About the IDC
The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their
practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation.
For more information on the IDC, visit us on the web at www.iadtc.org.
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association.
IDC Quarterly, Volume 20, Number 4. © 2010. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in
part without permission is prohibited.
Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL 62708-3144, 217-585-0991, [email protected]
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