General Practice, Solo & Small Firm DivisionMagazine
Avoiding Goliath’s Fate: Defeating a Pro Se Litigant
By Scott L. Garland
The Parties’ Strengths and Weaknesses. The pro se litigant generally has one obvious weakness, lack of legal skill, and one obvious strength, guaranteed protection in some measure by the court. The lawyer has the opposite weaknesses and strengths: legal skill and credibility, somewhat hampered by the court’s relative lack of sympathy for the attorney and the license it gives the pro se opponent.
Protect Your Credibility. Many lawyers seem to think that litigating against a pro se party gives the lawyer license to litigate like a pro se party. Engaging in ad hominem attacks, and speaking to the judge or the clerk about "this mess we should all clear up" as if you and the court stand united against the pro se party makes you look silly.
By omitting legal citations, making conclusory statements, and failing to evaluate the opponent’s arguments and citations, the attorney tends to shortchange his or her legal arguments, to his client’s detriment. Instead, take the pro se litigation and litigant seriously. Treat the pro se litigant with respect; do not complain or snigger about the pro se party’s lack of skill, intelligence, or coherency; avoid ex parte contacts with the court regarding the pro se litigant’s position; and make your briefs shine, rather than whine. Observe all the formalities and meet all your deadlines.
When you file a motion, make sure that you later submit a quality brief, replying to your opponent’s arguments against your motion. The reply brief, coming after both the opening and response briefs, is the first and often only document that deals with all the parties’ arguments for and against your motion. Use the reply brief to write the court’s opinion in favor of your motion. Frame the law succinctly but completely, identify and limit your opponent’s arguments and waiver of arguments, and explain simply why you should win.
Attorneys should avoid the premature motion to dismiss and shifting the client’s burden onto the pro se litigant (which occurs often in the context of affirmative defenses). Motions to dismiss should be and are routinely denied because of the current general scheme of notice pleading. Instead, move for a more definite statement, and move for dismissal only after the plaintiff fails to respond appropriately or at all. This way the pro se plaintiff is on notice of what is expected of him or her, you either get the details you need or the striking of the pleading or other appropriate relief, and you have a clean record for appeal.
Frame the Issues as Best You Can. Move for a more definite statement again and again, as many times as necessary. If the court grants the motion and the pro se litigant fails to respond, you may get sanctions or dismissal. Once the pro se party makes the pleadings as clear as possible, pin the litigant down by taking his or her deposition and sending interrogatories and requests for admissions. Use your skills of advocacy to frame the issues as best you can in a motion for summary judgment.
However, a danger with framing the issues with clarity is that you might give the pro se party ideas. That is, if you say "Defendants understand Plaintiff to request only injunctive relief, and not damages," the attentive pro se litigant will disavow that statement and then seek damages. Avoid this by forgoing the motion to dismiss, unless you have a really good shot.
Help the Court Avoid Treating the Pro Se Litigant Too Abruptly. The judge’s impatience may result in hasty decisions without explicit reasoning. To avoid a possible appeal and remand: (1) make your briefs complete enough to give the court a good outline of the law but succinct enough to give the court the incentive to use your brief as the basis or content of its order; (2) submit proposed orders that go beyond conclusory statements to actually apply law to facts; and (3) urge the court to observe the formalities to keep the record clean.
Don’t Fuel the Pro Se Litigant’s David-and-Goliath Complex. Avoid leading the pro se party to feel like he or she is being left out of the adjudicatory process. Make certain that the pro se party is included in all communications with the court. Avoid ex parte contacts with the court. Serve all of your papers on the litigant properly. Avoid leading the pro se party to feel like you and he or she are being held to different standards.
Remind the Court That There Are Limits to Indulging Pro Se Litigants. Most courts recognize that they have a duty to treat pro se litigants with special consideration. The court will almost always read pro se pleadings liberally, but it might also do legal research to fill the void left by the pro se litigant’s lack of skill. To avoid this, make your brief clear and comprehensive, so that the court feels that it need go no farther than the law and facts you have indicated, and remind the court that it must be generous with the pro se litigant but cannot become the pro se litigant’s counsel.
Increase the Seriousness of the Pro Se Party’s Breaches. Increase the seriousness of the pro se party’s breaches by (1) educating the pro se party about his or her obligations so that future breaches cannot be interpreted as the product of ignorance; and (2) turning breaches of the rules of civil procedure into disobedience of the judge’s orders. For example, rather than waiting to see whether the party responds to your motion within the time prescribed by rule, include with the motion a form order requiring a response by the appointed day.
Diminish Sympathy for a Sophisticated Pro Se Litigant. When the pro se litigant is really an expert litigant, the court’s sympathy for his or her presumed inexpertise diminishes markedly. Find out whether your pro se opponent has been involved in litigation before, and especially whether he or she was sanctioned and for what reasons.
Don’t Allow a Pro Se Litigant to Represent Another Party. A pro se litigator generally may not appear on behalf of a party, not even a parent appearing for his or her child or a corporate executive appearing for his or her company. Move the court to find the opposing party in default because it really has not entered the case until its attorney has entered an appearance. When the pro se litigator represents a corporation, the strategy is a little different. Corporations seeking reversal of an adverse judgment on the ground that the company was represented by a pro se representative are finding this argument rejected. Therefore, you must decide whether to risk the disadvantages of litigating against a pro se litigator and the likelihood of reversal on this ground against the advantage of the opponent’s lack of skill. Legal ethics may require you to advise the court of the problem, though.
Ask the Court to Enjoin the Pro Se Litigant From Filing Future Actions or Motions Against You on This Topic. Once the court has ruled against them, some pro se litigants are loath to say goodbye: they continue to file evidence, substantive motions, motions for reconsideration, and, even worse, additional lawsuits. Ask the court to enjoin the pro se party from making any future filings against you on the matter before the court.
Reduce Settlements To Writing as Quickly as Possible. The lack of finality in pro se litigation can turn up in another situation: the failure of a pro se litigant to abide by a settlement agreement. Reduce the settlement agreement to writing as early as possible.
Scott L. Garland is with Stoel Rives LLP in Portland, Oregon.
- This article is an abridged and edited version of one that originally appeared on page 45 in Litigation, Winter 1998 (24:2).