39.0°,
Fair From the other side of the bench: When it's good to be nice
By David Seidemann
Issue of Oct. 3, 2008
I was meandering near the intersection of Court St. and Montague in downtown Brooklyn the other day, when a young lady with a clip-board and pen impeded my progress. Dressed in slacks, a T-shirt, and an American flag pin on her lapel, she began to ask me some questions.
“Would you vote for a candidate simply because he is black?” I answered no. “Would you not vote for a candidate because he is black?” Once again I answered no. “Would you vote for a candidate simply because she is a woman?” Again I answered no. “Would you not vote for a candidate simply because she is a woman?” I answered no for the fourth time.
In light of the above, she continued. “Who will you be supporting come November? I replied, with my usual dose of sarcasm, “I will be supporting my wife, my children, my children’s schools, all the stores on Central Ave. and apparently Wall Street.” We shared a laugh and she thanked me for being, in her words, “plain-out nice.” It was a bit ironic because I had just come from the courthouse where, much as I would have wanted to be nice in these days between Rosh Hashanah and Yom Kippur, when it’s good to be nice and nice to be good, being nice would have been a bad idea.
I had just concluded a matter before the court which demanded that I stood my ground. The court rules allow for a process called summary judgment in advance of trial. It’s a request brought before the judge before the case is even assigned to trial. Essentially it requests that the judge dismiss the case because the plaintiff does not have a legal foundation to bring the case in the first instance.
In the particular case I was arguing before the court, the defense in a personal injury case, in which I represented the plaintiff, filed such a motion to dismiss. My adversary submitted his papers last April, I submitted my opposition papers at the end of April and we were scheduled for an oral argument last May in front of the judge. My adversary was late and missed the calendar call and his motion was dismissed. He refiled his motion in July, asserting that his failure to appear was neither willful nor deliberate and that the court should re-calendar his original motion and entertain the motion on its merits.
When we appeared a few days ago to address his request to re-calendar his dismissed motion, the judge was prepared to deny his motion, stating that his excuse for being late last May was not a valid reason to undo the judge’s decision to dismiss the original motion. Knowing that my adversary could potentially catch heat from his boss for missing that original motion, I offered to agree to have his motion be restored from a technical stand-point and then have the judge dismiss his motion on the merits. In that way I would be protecting my adversary, a fellow attorney, from the wrath of his boss.
I then realized that by being nice to my adversary, by agreeing to let him restore his motion, I would be exposing my client to the possibility that my adversary would appeal the judge’s denial to dismiss my client’s case. Much as I wanted to be nice to my adversary and shield him from harm, doing so could hurt my client. By not wanting to make waves for my adversary, I was potentially drowning my client.
As an attorney who practices family law, I have seen too often women who tolerate abusive husbands (and vice versa) so as not to “make waves.” One such client told me she was just “being nice,” as her rabbi instructed her to be. I pointed out to her that her being “nice” was really being foolish. Her being foolish was enabling more abuse. Her enabling more abuse was exposing her and her children, who witnessed the abuse, to grave psychological damage.
Fortunately my client understood my point and stood up to her husband and his rabbis.
The abuse which her husband and his hand-picked rabbis were exerting on her, to “give it one more year” and they, the rabbis, would guarantee that her husband give her a get, was laughable. If rabbis could guarantee a get, we wouldn’t have the problem of Agunot. Being nice when you’re being abused by a spouse is merely prolonging your role as a victim.
We all have tiffs, disagreements and yes, even fights, with our spouses. But there is a huge difference between expressing your feelings and being abusive. The vast majority of us are not abusive. I would say we fall into the category of “sometimes not being nice.” A victim of abuse cannot afford to be nice. The rest of us can.
Now is a propitious time to evaluate our “niceness,” for who knows how many opportunities to make amends, if necessary, are available. So let me share with you the details of a phone call I received from a reader this morning. She had read one of my previous articles about how as Jews we need to be extra nice, and act in a certain manner which brings dignity to the Jewish people. The reader informed me that she used that article as the basis for a public speech that she gave about sanctifying G-d’s name.
She was on a cruise ship when a fellow Jewish passenger made some derogatory, if not abusive remarks to the tour guide. The passenger regretted her remarks and expressed her intentions to apologize to the tour guide the next day. Unfortunately she passed away that night on the ship, from unknown causes, before she had the opportunity to apologize for her behavior.
It takes great wisdom, self discipline and self awareness to recognize the distinction between being nice and being a victim.
When one is strong, acquiescence and deference to others, is in the genre of “niceness.” When one is weak, the same actions are tantamount to surrender.
This is the message I will carry into the New Year. G-d should grant us the strength as individuals, as a nation and as a Jewish people, to be strong: to act out of a position of strength, to be nice to others without surrendering our essence, and of course to embrace every opportunity to make amends when we blur the distinction between building ourselves and destroying another.
