I’m pretty tired as I write this, because last night, my daughter forced me to stay up past my bedtime so that we could experience the release of Taylor Swift’s new single together, “Look What You Made Me Do.” (I should’ve said no…) Let’s just say that this was more of a life-changing experience for my daughter that it was for me.
It’s been a big month for Ms. Swift. A couple of weeks ago, she testified in a trial against David Mueller, a former disc jockey in Colorado. Mueller had sued Swift for $3 million, contending that Swift had gotten him fired by falsely claiming that he had groped her at a backstage meet-and-greet in 2013. Swift counterclaimed against Mueller for one dollar in damages to prove a point, on a theory of assault and battery. Mueller lost.
I’m not going to delve into the deeper social aspects of the case, but I do want to analyze some of Swift’s testimony, because it was direct, forceful, and, ultimately, successful. I would just like to point out the obvious (as the father of a wonderful daughter and the husband of a former Wall Streeter): Women are still subjected to an awful lot of nonsense in our society, and I hope that what Swift did will encourage others to report improper incidents, and to hold their ground when challenged. Also, keep your hands to yourself, guys.
Here are a few observations, in no particular order, about her testimony:
- Is it OK to say “ass” in a courtroom? Apparently it was for Swift, because she used the word dozens of times in her testimony. Asked by Mueller’s lawyer about the incident, for example, Swift said that Mueller “grabbed my ass underneath my skirt.” Now, I confess that having a client use the word “ass” repeatedly from the witness stand would make me a little nervous. Years ago, my partner defended a sexual harassment trial, in which one of the allegations was that our client, the President of a manufacturing company, had subjected the plaintiff to explicit sexual commentary in the office. Plaintiff’s counsel used the word “blowjob” so many times that we thought the shock value was lost. I think we were largely correct, because while we were unsuccessful on liability, the damages award came in much lower than we had expected. But in Swift’s case, I think using the word “ass” was perfect. It made her appear real, and not as some unapproachable celebrity. Judges and juries are very quick to sense when a person isn’t being genuine. Also, the unfiltered language sent the message that she was not some pretty little thing that could be treated like a toy. She was a human being who was annoyed and was willing to fight for her rights. The key to effective communication is: Be real.
- Many witness examinations are suicidal rather than homicidal, and counsel’s examination of Swift was no exception. Yes, 20/20 hindsight is a wonderful thing, but looking at this transcript, you can’t help but conclude that Mueller’s lawyer (Gabriel McFarland) walked into several crisp left hooks. McFarland, for example, showed Swift a picture that had been taken at the meet-and-greet, and asked why the front of her dress wasn’t disturbed, if Mueller were indeed grabbing her bare cheek. Swift responded: “Because my ass is located on the back of my body.” Ouch. Asking “why” is a great way to get information in a negotiation or deposition. When questioning a hostile witness at trial, though, asking “why” generally cedes control of the questioning…and control is key. As another example, McFarland suggested that Swift could have taken a break from the meet-and-greet if she had actually been traumatized by the incident, as she contended. Swift came back with: “And your client could have taken a normal photo with me.” Ouch, again.
- Personal responsibility is still a very important concept to judges and juries. Here, counsel repeatedly questioned Swift about Mueller’s unhappy personal circumstances (such as losing his job), and whether she cared. Swift responded: “I don’t have any feelings about a person I don’t know. I think what he did was despicable and horrible and terrifying. Yet here we are, years later. And he and you are suing me and I’m being blamed for the unfortunate events of his life that are a product of his decisions, not mine.” (Ouch, a third time.)
- Faced with conflicting versions of events, judges and juries play the odds. Mueller’s story was that the incident involved a “simple jostle,” and that his hand may only have been on Swift’s ribs. (This seemed to be contradicted by the infamous photo.) Her response was simple, straightforward, and unwavering. When McFarland asked her whether, if she were telling the truth, she should be critical of her bodyguard for not stepping in, she responded: “I’m critical of your client sticking his hand under my skirt and grabbing my ass.” Which story makes more sense? Would Swift, a millionaire many times over, really have complained to Mueller’s boss, if Mueller had only had his hand on her rib cage?
- If you don’t believe your own story, no one else will, either. While Swift was confident and relentless in her testimony, Mueller’s attorney, apparently recognizing that he was at the helm of a sinking ship, reduced his damages demand from $3 million to $250,000 during the trial. There’s an old saying about never negotiating against yourself, and there’s a good reason for that old saying. A related example: Once, I was arguing the appeal of an insurance coverage case. One of the documents in the record was an e-mail from the insurance company’s underwriter, which directly contradicted the position that the insurance company was taking in court. My esteemed opponent said to the panel: “Aw, you know underwriters. They’ll say anything to sell a policy. That doesn’t mean anything.” Undermining your own position generally doesn’t go over so well (which is not to say that reasonable concessions are a bad idea).
Aristotle described an effective argument as containing elements of pathos, ethos and logos. Pathos is an appeal to emotion, meant to make the audience feel what the speaker wants them to feel. Ethos is an ethical appeal, meant to show the audience the speaker’s good and honest character. Logos is an appeal to logic, meant to show the audience that reason is on the speaker’s side.
Can you see where Swift’s testimony, quoted above, incorporated all three elements? The court certainly did. As for Swift and Mueller? They’re never, ever, ever getting back together.