ARTICLE ● Swearing in court: The upside ● THE LAWYER'S DAILY Mar 19, 2021

Swearing in court: The upside 
Friday, March 19, 2021 @ 2:42 PM | By Marcel Strigberger


Here’s why you should swear at work, according to science. And here’s an Ontario judge who recently did just this. More about that to follow.

Udi Ledergor, B2B marketing executive at Gong, penned an article reviewing studies that demonstrate the benefits of dropping verbal bombs. It notes that people who swear have higher levels of emotional intelligence, a larger vocabulary and even a higher IQ. The IQ part certainly is interesting. I am thinking about Einstein. I wonder how he reacted when the cynics assailed his theory of relativity.

HOT SHOT SCIENTIST: Professor Einstein, your theory of relativity is unintelligible nonsense. Balderdash! Who do you think you are? Sir Isaac Newton?

EINSTEIN:   #@%&= you2

The study also notes that people who swear have a higher level of integrity. I am not aware of any studies in the legal context but if this is true, it could be of vital benefit for lawyers in preparing their witnesses for trial. We could soon see judges give interesting reasons for their decisions:

JUDGE: I accept the evidence of the plaintiff Henderson. It has a ring of truth in it. He was forthright, had a positive demeanour and dropped about a dozen F-bombs.

However, we all know the justice system is slow to change. Alas!

The research also indicated that cursing increases the effectiveness and persuasiveness of an argument. Salespeople who used profanity trusted each other more, resulting in 18 per cent more wins.

Which lawyer would not want that? When can we now expect a bar association webinar titled, “Increase your court victories by 18 per cent; no sh*t.”

It seems not only humans but even chimpanzees swear. They do so by sign language. Cats are also suspected of swearing although the data is skimpy on this one. So far, the only four-letter word they are known to emit is a meow. I suppose we can also count a purr.

Now for that Ontario Court of Justice judge incident. As a Zoom impaired driving trial in Toronto was apparently concluding, Justice Paul Robertson believing he was now muted, annoyed by defence lawyer Sherif Foda’s cross-examination, expressed some anger, saying, to wit, “I have Mr. F—ing Foda here.”

Unfortunately, the said Mr. Foda (I am not repeating His Honour’s graphic adjective; I concede my intelligence is not up to the task) overheard the judge’s unequivocal comment. He immediately pleaded for a mistrial. This was a wise move by Mr. Foda. Alternatively I suppose he could have sworn back at the judge. Remember his chances of winning the argument would have been upped by 18 per cent. However given the judge’s slight acrimonious disposition at the moment, the mistrial route was probably the prudent one.

Fortunately, the judge agreed that he had lost his temper and he granted the mistrial. I would say this was a wise decision on his part.  Otherwise what would Foda’s factum record have looked like in the Court of Appeal:

“1) It is respectfully submitted that the learned trial judge compromised the appearance of fairness by making a disparaging comment about defence lawyer’s sexual activities …”

Either way this incident certainly took access to justice to a new dimension.

Justice Robertson of course also apologized. Another victim of Zoom going boom. COVID-19 has  led to the justice system adopting Zoom type technology but occasionally it gets it wrong. (I need not use a more graphic expression for “gets it wrong.”)

I am thinking of that Texas lawyer who recently Zoomed in but by accident came on via a video filter as a cat. Maybe there are some possibilities for swearing via Zoom. How about a judge coming on via a filter as a chimpanzee? Hey, a progressive leap; justice meets science?

I must note that the article concludes that notwithstanding the alleged benefits of swearing according to science, there is still a general taboo of doing so in the workplace.

In other words, don’t try this in your courtroom. Yet.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit Follow him @MarcelsHumour.


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