Jumping the Snark: Are humor and
sarcasm ever appropriate in legal writing?
By Tammy R. P. Oltz
This past summer, the ACLU of West
Virginia filed an Amicus Curiae brief
in response to the lawsuit filed by coal
magnate Robert Murray against TV host
and comedian John Oliver over comments
Oliver made on his television show, “Last
Week Tonight.” The lawsuit alleged, among
other things, Oliver defamed Murray in
a television segment critiquing Murray’s
mining practices and featuring gags such as
a giant, profanity-using squirrel named Mr.
Nutterbutter and comparisons to Dr. Evil
from the “Austin Powers” movies.
The ACLU-WV brief took on Murray’s
complaint with snark, sarcasm, and a little
profanity of its own. Calling Murray’s lawsuit
“ridiculous,” the brief writer used informal
point headings addressed directly at Murray
(e.g., “Courts Can’t Tell Media Companies
How to Report, Bob”), asserted the Dr. Evil
comparison could not be defamation since
it’s true that there is a resemblance (side-
by-side photos of Murray and Dr. Evil were
included to support this assertion), and
claimed Murray was just upset Oliver “was
mean to him.” A representative line stated,
“It is apt that one of plaintiffs’ objections to
the show is about a human-sized squirrel
named Mr. Nutterbutter, because this case is
nuts.”
The brief lit up social media and made
national headlines, many of them laudatory.
Vanity Fair, Slate, Huffington Post, and Above
the Law dubbed it “hilarious,” the AV Club
called it “sassy,” and Litigation Daily called it
“awesome.” But the brief touched a nerve in
the legal writing community, sparking a long
debate on a national listserv between those
who agreed it was funny and effective and
those who felt it was disrespectful and a prime
example of what not to do.
Indeed, there may be good reason to be
cautious. First, just as unusual personal style
can detract from an attorney’s argument in
court, overly “cute” writing risks clouding
rather than clarifying the substantive legal
argument. The ACLU-WV brief got a lot
of attention, but almost none of it discussed
the actual strengths (or weaknesses) of its
arguments.
Further, the use of humor, snark, or even just
overstatement risks alienating the reader,
particularly if he or she doesn’t already agree
with the writer. Judge Kethledge of the U.S.
Court of Appeals for the Sixth Circuit had this
to say in a recent case:
“There are good reasons not to call
an opponent’s argument ‘ridiculous,’
which is what State Farm calls Barbara
Bennett’s principal argument here. The
reasons include civility; the near-certainty
that overstatement will only push the
reader away (especially when, as here,
the hyperbole begins on page one of the
brief ); and that, even where the record
supports an extreme modifier, ‘the better
practice is usually to lay out the facts and
let the court reach its own conclusions.’
Big Dipper Entm’t, L.L.C. v. City of Warren,
641 F.3d 715, 719 (6th Cir. 2011). But
here the biggest reason is more simple:
the argument that State Farm derides as
ridiculous is instead correct.”
18
THE GAVEL
On the other hand, gentler humor, in the right
context, could actually be more effective than
ordinary legal writing. Take the case of Netflix,
which recently issued a cease-and-desist letter
to a Chicago pop-up bar with a theme based
on one of its popular TV shows. “Stranger
Things” is a science fiction/horror show set in
the 1980s and featuring an alternate dimension
called the Upside Down as well as a monster