Langham: Personal Attacks Unbecoming
Wednesday, June 24, 2020 | 0
I recently read some interesting pleadings. These included verbiage that was harsh and untoward; it was not a display of professional behavior.
The exchange between the parties led to the entry of an order by the assigned judge. Of particular note in that order is the inclusion of a "reminder of professionalism" directed at the attorneys.
This situation struck me for two reasons. First, the language choices were indeed unfortunate and the judge mentioning it is laudable. Second, we once lived in an age of hearings where invective and hyperbole sometimes surfaced in the heat of a moment, but for such language to survive the review and hopefully retrospect involved in drafting and proofreading is only more unfortunate.
As a side note, there is some perception from the bench that proofreading has generally gone the way of the daily newspaper, the fax machine or the rotary telephone. The statements in this case were written or dictated, read, hopefully (re)considered and then filed nonetheless.
The pleadings included the following quotes:
- "The employer/carrier's strategy is lackadaisical or intentional."
- "To say that request is vague and overbroad strains credulity."
- "The objection ... is incomprehensible."
- "This is the very circumstance that provides the fertile ground for gotcha litigation long prohibited by Florida courts."
- "The hair-on-fire ranting offered up through the motion."
- "At paragraph 6 of his motion, in an apparent fit of outrage and pious indignation."
- "The profound hypocrisy of this invective is underscored."
- "This reality brings to mind the proverb 'Those who live in glass houses should not cast stones.'"
- "Claimant's lack of self-awareness and rank of subversion."
- "In refutation of the claimant's baseless and self-serving insinuation to the contrary."
- "The claimant's hypocritical chastising of the E/C is at minimum dubious and at worst completely disingenuous and meritless."
- "It boggles the mind that the claimant would take offense to these responses."
- "Infers deceit and gamesmanship on the part of the undersigned."
- "Takes personal offense at the claimant's scurrilous, contemptuous and completely unfounded assertion."
- "Little more than an exercise in prurient navel-gazing."
- "Such aimless and sweeping tactics."
- "Proposition is impractical if not preposterous."
- "Motion as a cudgel being wielded."
- "An improper and unwarranted 'fishing expedition,' for the apparent purpose of harassment, annoyance, oppression, undue burden and intimidation."
The motion to compel was denied. The judge, however, included the following in that order:
REMINDER OF PROFESSIONALISM: The language utilized by BOTH claimant's attorney in the motion in question and E/C's attorney in his response to the motion to compel is inflammatory and unprofessional. Language implying E/C's strategy is lackadaisical or intentional and claimant's motion contains hair-on-fire ranting and is hypocritical are personal attacks unbecoming of the legal profession and distracting from resolution of the issues at hand. Pleadings, motions and responses should be factual in nature without implying some nefarious or wrongful intent by a party or their attorney.
The key words there are "inflammatory and unprofessional." One might engage in a discussion of "who started it," but let's face it: That never worked with Mom, either. The point is that it requires two to tango. Remember, "two wrongs do not make a right."
Before you return hyperbole or stoop to ad hominem attacks, take an evening to think it over. Dictate or type that response if you must (get it off your chest). But then let it sit on the desk overnight and take a fresh look at it before serving or filing.
In that retrospective proofreading moment, ask yourself if the invective, insults or abuse are: (1) necessary, and (2) likely to persuade your reader. Remember, at the end of the analysis, the client has hired counsel to prevail, to be convincing, to be persuasive. It is practical to suspect that being offensive, distasteful and insulting may not lead to success.
Choose words carefully, focus on the issue at hand — not the person — and strive to be the better person. Admittedly, that may not be easy. But as obviously, it is the path to take.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.