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Humor in Trial Evidence Humor in Trial Evidence Cartoon Contest Caption Winners and Challenges from My Evidence Class John Barkai University of Hawaii William S. Richardson School of Law I think I will be getting out soon. My new lawyer had Barkai for evidence. Humor in Trial Evidence: Cartoon Contest Caption Winners and Challenges from My Evidence Class Professor John Barkai William S. Richardson School of Law University of Hawaii Honolulu, HI 96822 ISBN: 9781798893739 Introduction This book contains almost 900 of the best original captions about evidence and trial issues that were written by my evidence students (and a few that I made up too) for cartoons used in cartoon captioning contests on my law school evidence and litigation final examinations for 40 years. My main interest in publishing this book is to get the cartoons and captions to law school evidence professors to use in their classes and trainings. Of course any lawyer or law student who has ever had to dig deeply into the rules of evidence will get some laughs from this book. Even if you have never read the Daubert, Crawford, or Hillmon cases, or never heard of the residual exception to the hearsay rule, you should still understand the humor in many of the captions in this book. Cartoon captioning contests started more than 100 years ago. Today by far the most popular cartoon captioning contest is the New Yorker Magazine’s Cartoon Caption Contest. The New Yorker contest started in 1999 as a feature within the annual cartoon issue of the magazine. That contest was then repeated yearly through 2004. In 2005, the New Yorker’s contest was turned into a weekly event. I began using cartoon captioning contests in 1980 when I first tried a cartoon question on my litigation workshop final exam at the University of Hawaii Law School. I continued to use captioning contests in my evidence, litigation, and negotiation and ADR classes for the next 40 years at the Law School. I have published a similar cartoon book called, Humor in Negotiations & ADR: Cartoon Contest Caption Winners from the ABA Dispute Resolution Magazine, which contains over 500 “winning” captions for more than 50 cartoons used in cartoon captioning contests that were published over 14 years in the Dispute Resolution Magazine, a quarterly publication of the American Bar Association’s Section on Dispute Resolution. Those captions came from the ABA magazine’s cartoon captioning contest and similar contests I ran in my law and business school classes with the same cartoons. Origins of the Cartoons in this Book. When I used cartoons on my law school final examinations, I simply cut the captions off cartoons that I found in newspapers, magazines, books, and on the internet. I thought I could make “fair use” of those cartoons on my exams and in later classes. I used about 30 cartoons for evidence captioning contests over the years. However, I also knew that I could not publish those cartoons in a book even if I sold it at cost, and the lack of permission to use the cartoons from my in-class contests kept me from publishing the captions. However, a couple of years ago when I learned how to self-publish my Hawaii Rules of Evidence Handbook on Amazon. From that publishing experience, I developed a new path to publishing cartoon books. If I could draw new cartoons (impossible in my case because I have no artistic talent), get someone else to draw new cartoons for me, purchase cartoons, or use my Photoshop skills, I could publish my cartoon captions. iii For this evidence cartoon book, I purchased the rights to use a few of the cartoons I had used on my exams. I hired Mallory Hee as a research assistant to draw some new cartoons for me. Mark Anderson allowed me to use many of his cartoons from Andertoons.com at a very reasonable fee. The families of Misha Richter and Chon Day each allowed me to use one of their father’s cartoons, which were among my all-time favorites. Mishsa Richter’s cartoon was first published in 1974 and Chon Day’s cartoon was published in 1947 (just two years after I was published – joke). I greatly appreciate the hundreds of students who created the captions that appear in this book, and about 2,000 other students who made up captions that did not make it into this book. Because the captions were all created as part of blind-graded final examinations, I have no idea which of my students over the past 40 plus years were the funniest and most creative – but I thank you. I used my Photoshop skills to put the heads of my family, friends, and work colleagues (and even my pets) on old images and create many more cartoons. Initially, and playfully, I decided to include my wife and children in the images. Later I moved on to adding the images a few of my law school colleagues into the book. In the end, I ultimately photoshopped the heads of my over 70 of my family, friends, and law school colleagues into the book as personal reminders of many of the people who have played important roles in my personal and professional life. Their names are near the end of this book. I used so many people because with a total of almost 900 captions, I simply needed more cartoons to make the book more than just a list of captions. For example, over the years I only used five judge and five prisoner cartoons among the 30 cartoons I used, but I am now publishing over 250 judge captions and more than 125 prisoner captions. Changing the Image of Legal Humor from Old White Guys. I also used this book to change the image of legal humor presented in cartoons. If you had been looking at legal cartoons for over 40 years like I have (I brought my cartoon collection with me to Hawaii in 1978 and still have a few of those tattered and yellowed cartoons in my office), it quickly becomes apparent that judge and lawyer images that appear in the cartoons, especially older cartoons, do not look like the judges and lawyers of today. Most of the judges and lawyers in cartoons look like me – old white guys. When I asked Mallory Hee to draw some original cartoons or when I photoshopped some of my friends into the cartoons, we included more women and people of color as judges and lawyers than you will find in even contemporary legal cartoons. Why Use Cartoons in a Class? There are many reasons to use cartoons in a presentation. If I were writing a law review article about the topic, I would include references to many prior academic publications that tout the use of humor and cartoons from primary education through college, professional schools, and to presentations to adults. The academic literature about humor and cartoons says that humor and cartoons promote learning, capture attention, make connections with the subject matter, increase retention, promote creativity and critical thinking, create social cohesion within the learning group, build a sense of community, provide a tool to assess whether the audience understands the material, promote health, reduce stress, exercise the heart, increase activity within the immune system, and keep the audience engaged. Laughter is both good medicine and good teaching. Acknowledgements. I want to thank and acknowledge my family, friends, and colleagues who have allowed me to use their images in this book. Doing my own unique balancing (not quite a Rule 403 balance) by acknowledging them by name but not identifying their face with their name, I am trying to both give them some credit for their influence in my life and also protecting their privacy. Few people who look at this book, especially those outside Hawaii, will know many or any of the people pictured in the book. Using their images was really for my purposes (thank you again), so that someday I can look at their faces again and remember my personal and professional life. How to Use This Book. It’s simple. Just read it. Have fun. If you feel creative and want to play along, just pretend you are entering a cartoon captioning contest. Each cartoon is presented two times in the book. First, a cartoon is presented with no caption, but with words that might provide a trigger or a challenge for you to create a caption. The “suggestions” and “challenges” are concepts or words that will appear in some of the captions on the next page. After you have thought of a caption, turn the page iv and see a smaller version of the cartoon with several captions created for the cartoon cartoons. If you tire of playing the game of creating your own caption, and I would, just start looking at the pages with all the captions. If you are an evidence teacher, you might find the back-of-the-book indexes helpful if you are looking for a cartoon on a particular topic. I have created two indexes: one using the words or concepts in a caption and another index using the Federal Rules of Evidence numbers that I think fit with a particular caption. Barkai-isms in this Book. A Barkai-ism is an acronym, mnemonic, or some other memory device that I have created to help my students remember evidence concepts. Two pages of Barkai-isms follow this introduction. Many Barkai-isms appear in the captions, but you will not understand the humor of those captions without understanding the Barkai-ism.
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