What Can a Lawyer’s Verbal Attack on a Judge Teach Us About Mediation?

A Daily Business Review article explores the case of a Florida criminal defense attorney who is facing Florida Bar ethics charges for critical comments he posted on his blog about a controversial Broward, Fla., judge.

What caused the commotion? Well, I’m not a criminal attorney, but it appears that this centers around Judge Aleman’s attempt to force felony criminal suspects to declare ready for trial within 1-2 weeks of arraignment or seek a continuance, which apparently forfeits the defendant’s constitutional right to a “speedy trial.” This policy also apparently violates Florida’s Rules of Criminal Procedure, which allow a defendant a reasonable time to prepare.

After Sean Conway had one of his defendants placed in this unenviable position, he posted on his blog about the situation. The post, filled with grammatical errors and “txt msg” abbreviations, referred to the Court as “Evil Unfair Witch”, branded the new policy “illegal,” called the Judge “mentally ill” and “unfit for her position” and stated that he (Conway) would not call the Judge “Your Honor” because “there’s nothing honorable about that malcontent.” Conway is now under threat of Bar discipline for violating the ethical requirement that lawyers refrain from making false or reckless statement about the integrity or qualifications of a judge. [As an aside, the judge is also under investigation for an unrelated matter].

Putting aside for the moment the constitutional arguments over free speech (which are explored in the original article), I think this incident can be used to illustrate some (in)effective negotiation/mediation tactics. It would appear that Conway had a valid legal argument that Judge Aleman’s policy was illegal, unethical and possibly unconstitutional. But by resorting to such a crass and classless ad hominem attack, he undermined his argument.

All too often, I see litigants sit down across the mediation table and launch right into the personal verbal assaults.

“He’s a liar”
“She’s a drunk”
“What would you know, you went to [insert name of arch rival university here]!

And this is from the lawyers. Well, maybe not that ridiculous, but I’ve been involved in witness to shouting matches between highly educated, allegedly professional attorneys. More often than not, both sides have valid, legal arguments as to why they may be legally entitled to assert their claim or defense. But the other side doesn’t see them, or care, because they are too busy defending themselves from the personal attacks.

There’s an old Southern saying, “You catch more flies with honey than vinegar.” Took me a long time to realize that, but it works. Had Conway blogged about the alleged illegality of Judge Aleman’s policy in a less invective manner, or drafted a firm, persuasive letter to the Chief Judge or whatever organization overseas judicial ethics, rather than call the judge an evil nutcase, we would likely have never heard of this incident, or if it came to light, hailed Conway as a champion of constitutional rights. But now, if he is remembered, we will simply recall him as that criminal lawyer who resorted to name calling when things didn’t go his way.

The next time you are at the mediation table, put the venom aside, take the proverbial chill pill, and think of a neutral way in which to convey the fact that you think your opponent’s argument is horse dung.