Bar News - August 11, 2006
Professional Liability Advice: Dealing with the Pro Se Litigant
By: William C. Saturley and John C. Kissinger
Pro se parties increasingly populate the litigation landscape. Some observers estimate pro se parties sign 40 percent of federal court filings, principally in the criminal, employment, civil rights, and debtor/creditor areas. In state court, as many as 60 percent of the marital filings could include a pro se party. In this “self-help” era, especially with the resources available on the Internet, expect the trend to continue.
Opposing a pro se party poses its own challenges. Non-lawyers are generally unaware of or feel unrestricted by the ethical rules that constrain an attorney’s behavior; they lack familiarity with the terminology of our common law system, and frequently do not possess a rule book; they are suspicious of the civility and professional courtesy that lawyers extend to each other; and there is a frustrating sense that the courts accommodate them in instances where a lawyer would get hammered.
Some of this is imagined; some of it real, if unacknowledged by the court system. In recognition of these facts, and the projected increase in numbers of pro se parties, we suggest the following tips when dealing with self-represented litigants as adversaries.
• Educate your client. Let your client know that the process may bog down from your adversary’s poorly articulated pleadings, incomprehensible motions, and multiplicative filings. The cost of the litigation may also significantly increase. Like playing tennis with a lousy opponent, the game is about to get ugly.
• Document everything. Lawyers have offices, assistants, voice mail, filing. Non-lawyers typically do not. They also lack familiarity with the process. Track your contacts with them: the discussions, the promises. You may need proof of it later.
• Be patient. Self-represented litigants are likely to be emotionally invested in their cases. This can lead to hard positions being taken, and words spoken in anger. Avoid responding in kind, for you will regret the way the court views you. Hardball tactics may likewise backfire, if they lead to unreasonable reactions. Bear in mind, also, that most courts will tolerate actions and inactions from a non-lawyer they would not from you. Learn to expect it and you won’t be disappointed.
• Don’t rely on the courts to clean up their pleadings. Courts will liberally construe initial pleadings by pro se litigants, in order to provide constitutionally guaranteed access to the judicial system. Don’t automatically file a 12(b)(6) motion to dismiss a garbled pleading in federal court, because even if successful, the court will invite the pro se party to re-plead their cause, without prejudice. Rather, file a 12(e) motion for more definite statement to get a clear shot at a dismissal. (In state court, try a motion for specifications under Rules 23 and 29.)
• Set up your knockout punch against pro se litigants by first providing them the applicable rule. If you intend to file a motion for summary judgment, provide them a copy of RSA 491:8-a. If you think they have violated a state or federal rule, inform them of the rule. Do it in writing. Then, when they try to plead ignorance, you can show the court they had the information available to them. For similar reasons, if deposing a non-represented party, send a copy of the relevant discovery rules in advance of the event.
• Watch for security and confidentiality breaches. Many non-lawyers are far more facile with a computer then they are with the rules of court. Learn the definition of meta-data and manage your risks. Warn your staff that the rules of confidentiality and loyalty have not changed, and to be scrupulous in their communication with the non-lawyer.
• Mediate early. Mediation provides an opportunity to talk openly about the value of a case, with a disinterested participant helping to modulate the tenor of the dialogue. Also, you may find that providing a forum for the party to express concerns, frustrations, or grievances may be enough to dispose of the matter altogether.
• Avoid under-estimating the ability and education of non-lawyer parties. Some non-lawyers spend more time reading rules and cases than full-time litigators (prison inmates come to mind). The Internet is a great leveler: volumes of information are available to those with a motivation to seek it out. Don’t relax just because no lawyer appears for your opponent.
• Invoke protection when necessary. Courts retain the power and privilege to protect the process, and the public, from the over-zealous, unrestrained participant. Documented abuse in your case, or multiple cases of vexatious activities, can be controlled. See, for example, R.S.A. 507:15.
• Is a lawyer is helping behind the scenes? Is someone ghost-writing for them, or have they just mined a particularly rich vein of Internet forms? The Supreme Court’s recent “unbundling” rules (see Order, March 21, 2006) require disclosure of the work product of a lawyer. Remind the supposedly unrepresented litigant that you cannot talk to them if they are represented; this may flush out the reluctant attorney.
Be wary, not weary. Unrepresented litigants often can increase costs, frustrate clients, and raise your blood pressure. Consider the tips above to avoid some foreseeable problems.
William C. Saturley and John C. Kissinger practice in the professional liability and commercial litigation groups of Nelson, Kinder, Mosseau & Saturley in Manchester.