In bringing or defending a lawsuit, a person may choose not to hire a lawyer, and instead to represent himself or herself. Such unrepresented parties are known as pro se litigants.
Given that most pro se litigants are not lawyers and do not understand court rules or the workings of courtrooms and litigation matters, litigating a case against a pro se litigant can be difficult and costly. However, an awareness of the unique challenges posed by pro se proceedings can help attorneys minimize such difficulties and associated litigation costs. A number of strategies that attorneys may find helpful in accomplishing this goal are discussed below.
Make Your Role Clear
In the course of a lawsuit involving a pro se litigant, there will likely come a time when the individual asks the opposing lawyer what he or she should do next. For instance, a pro se litigant may ask the lawyer how to respond to a motion or discovery request, or about court rules.
In responding to such questions, a lawyer must be very careful not to run afoul of the ethical rules. For instance, Rule 4.3 of the Massachusetts Rules of Professional Conduct provides that in dealing with an unrepresented individual, a lawyer must not state or imply that he or she is disinterested, and that the lawyer must make reasonable efforts to correct any misunderstanding an unrepresented person has about the lawyer’s role in the matter. Rule 4.3 also prohibits a lawyer from giving advice to an unrepresented person (except a recommendation to hire counsel) when the person’s interests reasonably might be in conflict with the interest of the lawyer’s client.
In light of Rule 4.3 (and similar ethical rules in other jurisdictions), a lawyer should be sure to explain to a pro se litigant, at the very beginning of a case, that the lawyer owes a duty to his or her client to zealously represent the client and, therefore, that the lawyer will always be acting in the best interests of the lawyer’s client. Further, if asked a legal question by a pro se litigant, the lawyer should refrain from giving legal advice or recommending to the individual what action to take in the litigation.
Calmly Explain The Actions Being Taken
Dealing with a pro se litigant can be frustrating. Many pro se litigants are not aware of court and procedural rules and do not bother to take time to learn the rules. Others think they know the court rules better than the opposing lawyer and accuse the lawyer of not following the rules. Some go as far as to file motions with the court based on trivial or nonsensical arguments, insisting the court sanction the opposing lawyer for allegedly not following the rules.
Such actions by pro se litigants can be annoying for lawyers and cause their clients to incur unnecessary litigation costs. Nonetheless, in dealing with such situations, it is important that a lawyer stay calm and carefully consider how best to respond. For instance, it might be helpful for the lawyer to explain to the pro se litigant the actions the lawyer is taking, the rules that allow the lawyer to take such actions, and why the lawyer is taking those actions.
While the lawyer must avoid giving the pro se litigant legal advice, by calmly explaining his or her actions to the individual, the lawyer may be able to make the litigation process less mysterious for the person, and thereby reduce the chances that the pro se litigant will file an unnecessary and costly motion based on a misguided argument that the lawyer did not follow the court rules.
Be Polite And Professional
When dealing with a pro se litigant, it is important that a lawyer remain professional and not be rude to the individual, regardless of how upset or confrontational the pro se litigant may become. Being polite can be difficult when a pro se litigant is yelling and calling the lawyer names. The lawyer, however, must remember that most pro se litigants do not understand the system and take every decision in the case personally. As a result, their emotions can run high, and they are more likely to lose their tempers in dealing with opposing lawyers.
While it may be tempting for a lawyer to respond to such behavior with a rude comment, the lawyer should recognize that such actions are not likely to help his or her client’s case. Potentially, a pro se litigant might retaliate by filing a motion for sanctions, or even a complaint with the state bar. At a minimum, responding to such a complaint will entail unnecessary cost and distraction for the lawyer and, potentially, his or her client.
Moreover, if the lawyer allows his or her personal dislike for a pro se litigant to influence his or her actions, the lawyer’s ability to represent his or her client effectively could be compromised. Thus, it is critical that a lawyer remain composed and professional when dealing with a pro se litigant, even if the individual acts rudely.
Try To Resolve Issues With A Pro Se Litigant Before Seeking The Court’s Help
In a contentious litigation involving a pro se litigant, an attorney may be tempted to file a motion asking the court to sanction the pro se litigant for failing to comply with court rules. However, before filing such a motion, an attorney should carefully consider whether it is the most effective means of resolving the issue.
While pro se litigants are supposed to be held to the same standards as lawyers, in practice, many courts give pro se litigants a good deal of leeway and rarely sanction them for violating court rules, unless the violations are egregious or repeated. Thus, a more cost-effective strategy for an attorney may be to attempt to work through such issues directly with a pro se litigant, with a potential motion for sanctions reserved as a last resort.
Never Take A Pro Se Litigant Lightly
While many pro se litigants have little or no experience with the law or court procedures, others do have litigation experience or spend substantial amounts of time researching matters that they believe could be helpful to them in the litigation. A pro se litigant who was represented by counsel in an earlier lawsuit may even have pleadings from those matters, which the pro se litigant may revise and then file in the present litigation. Such pleadings may include well-supported arguments and persuasive case law, and should not be taken lightly by a lawyer simply because they were submitted by a pro se litigant.
In addition, unlike lawyers, who typically handle multiple cases at one time, pro se litigants are usually navigating only their one case. As a result, a pro se litigant may have a great deal of time to dedicate to researching and understanding issues relevant to his or her case.
Thus, a lawyer should not simply assume that a pro se litigant will be incapable of representing himself or herself competently. Rather, the lawyer should be prepared for the possibility that the individual will prove to be an effective advocate for his or her case.
Understand The Risks Of Negotiating With A Pro Se Litigant
Finally, settlement negotiations with pro se litigants can raise special pitfalls for attorneys. In the course of settlement negotiations, there is always a risk that an opponent may mischaracterize proposals or promises made by the other party. When both parties are represented by counsel, those risks are diminished to some extent, as attorneys are generally experienced with settlement negotiations, and the ethical rules prohibit attorneys from deliberately misrepresenting statements made by one another.
By contrast, pro se litigants are not bound by those ethical restrictions. Moreover, a pro se litigant typically has an inherent mistrust of the opposing lawyer. As a result, whenever possible, an attorney should have another person present as a witness to settlement negotiations with a pro se litigant.
Further, after a settlement has been reached with a pro se litigant, the individual may later claim – honestly or not – that there was a misunderstanding as to the terms of the settlement and, accordingly, that no agreement was reached. To minimize such risks, an attorney should ensure that any agreed-upon settlement terms are promptly memorialized in writing and signed by both parties. For instance, if a settlement is reached through a mediation, both parties should sign a written summary of the settlement terms before the mediation concludes. Alternatively, if a court hearing results in a settlement, an attorney may ask to have the settlement terms put orally on the court record.
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Please contact us if you have any questions about the issues explored in this article, or if we can assist with any other litigation matter. The Firm has extensive experience in litigation involving pro se and represented parties alike, and we would be happy to help.