On Being Nice

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Last week, I wrote this article about ways to fight back against infringers that didn't require commencing a lawsuit. It was well-received and widely read. In that article, I threw in a blurb describing why you should be nice to your adversaries and how doing so could lead to a better legal outcome for you. To my surprise, I got a lot of pushback on that. Several readers found the advice to be downright controversial. Their general view was "I'm the victim, so why do I owe it to someone who stole from me to be nice?"

It's a legitimate point and hard to argue against. But I'll try anyway.

From my seat, being nice makes practical sense. Judges and juries are people too, and like us mere mortals, they're susceptible to all sorts of biases. And since these are the people who will determine your legal fate, you want them to LIKE YOU. Making an effort to show magnanimity in light of your victimization can do just that. It's really that simple. "But Greg, it shouldn't matter if I'm likable. The judge and jury have a civic duty to do justice even if the victim is a jerk." Yes, absolutely right. Except the law is never as one-sided as it appears from your side. While you may feel victimized, it may in reality be a gray area. Most cases fall closer to the middle than any one side, which is why your appearance, your attitude, and your facial expressions may be enough to sway a jury your way (or not).

I'm not saying you have to be friendly to your adversary. I'm not saying you need to walk over to him in front of the jury, shake his hand, and call him your mate. But neither should you rail against him, call him names, and undermine him. Let your arguments stand on their own without interference from your emotions. You can - and always should - be direct in your dealings when it comes to legal matters, but that doesn't preclude being nice either. In a legal setting you will be adversaries, but that doesn't mean you need to be enemies as well.

Here's another reason. We have a real kindness deficit in this country. American culture is adversarial by design (our government and judicial systems were built on principles of adversity, as juxtaposed with the British system, which is inquisitorial) and when it goes unchecked, it can make us meaner, less trusting, and more litigious. It can lead to situations like one I experienced today. A young Hispanic man approached me while I waited for my train at Back Bay Station in Boston. He smiled and introduced himself in broken English. He showed me his cell phone and told me it wasn't working, and he began to ask if he could make a call on my phone. Before he finished his statement, I pointedly told him "No!" It took him a few moments to register my denial and he sputtered out a few more words before looking dejected and shuffling off to ask someone else for help. Before he left, he meekly thanked me for my time.

I was immediately crushed by how casually cruel I had been. I shut him down before he could even ask for help... how easy it was for me to be so dismissive and disrespectful to someone I didn't know. And the more I thought about it, the more I realized that none of my rationalizations withstood any kind of scrutiny. Yes, I didn't know him. Yes, I didn't trust him. Yes, he might have stolen my phone. But so what? I can afford a new one. I can easily wipe the memory of the old one from my computer so sensitive data couldn't be accessed. Assuming I was right to distrust him, what was I was protecting anyway? I was so disrespectful to someone I had just met, imagine how effortless it would have been if I had actual animosity towards him.

Being nice takes work, it takes effort. It's especially hard when you think someone has wronged you and your instinct is to treat them like the worst rat bastard that ever lived. I ask you to take the higher road; don't act like I did today. Be the better person and treat your adversary with respect. That's how you win allies in and out of court. BE NICE. Because even if you lose your case, you can at least walk out of that courtroom with your head held high.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA