To Speak or Not to Speak – That is the Question

In today’s post I am addressing the ability to speak, during litigation vs. mediation.  My accountant, Catherine Wilson, prompts this post.  She reminds me that to litigate means effectively giving up your first amendment right to free speech!  What in God’s name am I talking about??

When you litigate, you hire an attorney to represent you in the action.  The court defers to your attorney and may even hold you in contempt if you speak out of turn or correct / interrupt the court or your attorney.  As a former litigator, I saw this happen when clients felt their attorney didn’t state their case clearly or with enough emphasis on emotions and feelings.  As officers of the court we know we are limited in how much subjective substance we can bring into the courtroom.

Yet, sometimes my clients felt I missed the point and, as a result, surely the judge would miss the point. They wanted the court to hear the day-to-day injustices on which the lawsuit rested.

The court, in fact, does not want to hear these details ad nauseam.  It wants to simply hear the facts as they pertain to the law.  The court works to find a way to resolve the alleged wrong without muddying up their docket with irrelevant emotion.

The first amendment which includes Free Speech states:

“The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law [abridging the freedom of speech}.”  (http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution)

The definition of what Freedom of Speech means has been ‘duked out’ in court for 100’s of years.  Suffice it to say, having the right to say what you feel is protected by our constitution in most instances. 

In court, during the litigation you decided to bring and with the attorney you hired and paid to present your side of the story, you are not allowed to speak freely and give your side of the story.  Your lawyer does it for you in a way the court can hear and understand.  None of the pesky emotional rhetoric gets in their way when he/she attempts to settle a conflict between people over animals. 

If a lawyer doesn’t get it right when speaking or submitting papers on their client’s behalf the client risks being held in contempt of court if they attempt to verbally redress the inconsistencies.  Holy cow, you mean you can’t speak freely in litigation? That is exactly what I mean!

In mediation or collaborative practice, parties are encouraged to speak freely, sometimes saying things they have wanted to and/or have been afraid to say or hear.  These are often things they find offensive but which need airing.  Conflict in mediation is enabled because the neutral – the mediator-- keeps each party in the room listening and understanding the other party’s side or simply waiting their turn to refute everything being said.  This is Freedom of Speech at its finest.

All parties are free to speak and not necessarily through their attorney. It is the time to say things, in a confidential environment, that need to be said that may be on or off point.  What matters is that you are heard, respected for your train of thought, listened to and understood.  You do not need to agree.  Agreements, decisions to agree or to not agree, come later after each party feels they have told their story.  It is amazing how much people just want to tell their story.  Once they tell their story they feel reborn and can contemplate a resolution never approachable before.  They had the opportunity to speak their mind.

In litigation, the attorney presents the case, maybe as the client would or in such a way as to skirt the actual facts to meet a threshold for reward and in fact wins.  But, do you really win?  Have you been able to say what you wanted to say? Can you speak to the other party in the litigation going forward if you wanted to?  Did you want to retain a relationship at the onset?

Next time you think about suing your opponent, consider your right to free speech.  It is not available to you in court.  You will not be able to say what you want.  Your attorney and the court will filter your story.  This may be a good thing.  Yet, maybe it isn’t.  You can choose to have a difficult conversation, ending in a resolution you may never have considered before, while retaining your relationship with the person with whom you were in conflict. Free speech will enable you to chose to do this before litigation ensues or in lieu of continuing litigation.

Whatever path you take, remember, your freedom to speak is linked to your freedom to resolve your conflict in your own way.  Just a thought you may want to take to your next conflict.

—Debra Vey Voda-Hamilton