I love Taylor Swift’s music. Now, before you judge me, I also love Beethoven, Turlough O’Carolan, Anonymous 4, and Led Zeppelin. One of my favorite Swift songs is the current chart buster “Why You Gotta Be So Mean?” I heard the song for the first time after a particularly upsetting court case. My client was an honest, hardworking man who was being badly abused by the defense lawyer.
As we left the latest hearing on the case, John balled up his fists as his face turned blood red. Loud enough for everyone in a two-mile radius to have heard him, he screamed at me. “That lawyer stood there and lied! And you didn’t call him out on it. You’re too d….d nice. That’s the problem here. I ought take that guy out back and kick his a . . .” John’s wife tried to calm him down. “She did call him a liar, John. She just didn’t use those words. You weren’t listening.” But John had heard enough and stormed off.
John was right. The lawyer had lied and I would have loved to let him have it, but I held back. Part of my problem was the memory of a case I tried long ago in District Court. My client’s soon-to-be ex-wife had repeatedly perjured herself on the witness stand. I was able to rip her up on cross-examination, but despite what I thought was a stirring performance on my part, the judge appeared to be dozing off. I wasn’t sure he had heard a word I said. So in my closing argument, I pointed at the woman and loudly said to the judge, “That woman’s a bald faced liar, judge! The truth isn’t in her!” The judge appeared to be totally disinterested in my theatrics, but the “woman” and her kin folk were ready to explode. The bailiff put his hand on his gun. The judge announced that he would render a decision in a week or two and that he wanted to see me in chambers.
Thinking he was going to congratulate me on my brilliance, I was surprised when he wheeled around and said, “Don’t you ever pull a stunt like that in my courtroom again. You had those people so riled up, I had to postpone my ruling.” I tried to explain to the judge that I wasn’t sure he knew that she was lying. “Do you think the citizens of Orange County pay me to sit up here and be stupid?” he replied. “I’m telling you NOW – you do that again, and you’ll be wearing an orange jumpsuit while you cool your jets in a cell with some of our county’s finest liars!” For years after that, I thought the judge was out of line, but then the Supreme Court decided the Couch case.
Couch was a hotly contested medical malpractice claim. In her closing argument, the patient’s lawyer repeatedly said that the defense lawyer and his witnesses “came up here and told lies. In your face lies! . . . They didn’t care. They tried to make fools of everybody in the court room. . .They were not even smooth about it.” Although the jury awarded $2.5 million in damages, the court assessed $53,000 in penalties against the patient’s lawyer for her unprofessional conduct in calling defense counsel and witnesses “liars.” My judge had let me off cheaply!
Before John’s case was heard, I had filed a brief with the court. In it, as diplomatically as I could, I had pointed out “inconsistencies” with defense counsel’s position. Apparently, I went a bit too far. In his reply brief, he argued to the court that I had unethically attacked his character. I knew I was on thin ice when John’s hearing began.
There was another reason that I soft pedaled my attack in John’s case. Because of the posture of the case, we stood a risk of winning the case and getting little in damages. I knew that we had a better chance of getting more money if I could negotiate a settlement with the other side. That lawyer was not likely to be very generous if I called him a liar in open court.
I had a client in an earlier case threaten to fire me for being too nice to defense counsel. As it turned out, we lost that case and the judge ordered my client to pay some steep court costs to the defense. Knowing that my client was strapped for cash and feeling badly for him, the defense lawyer told us to forget about it. She had talked to her clients and they agreed to drop their claim for court costs.
So, I agree with Taylor Swift. Being mean is rarely a good idea. After all, somebody might write a song about you. If the song takes off, the whole world will know that you are “mean” and “pathetic” and a “bully” and that “All you ever are is MEAN!”
Sunday, December 4, 2011
Saturday, December 3, 2011
The Handshake
This September, I took my first vacation in years and headed off to Ireland. Because you are supposed to relax while you are on vacation, I made every effort to avoid working. Yet, when a North Carolina Court of Appeals ruling from Orange County made the headlines in Ireland, I had to read the case.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
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