Why You Gotta Be So Nice?

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!”