General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
Facing a Pro Se Opponent
BY CORNELIUS D. HELFRICH
Cornelius D. Helfrich is in solo practice in Bel Air, Maryland, and serves as an equity master for the Circuit Court for Hartford County, Maryland. He is a member of the editorial board of The Compleat Lawyer.
Most lawyers would volunteer to be flogged with a cat-o'-nine-tails before offering to try a case against an unrepresented litigant. Unfortunately, the number of cases in which one or the other party is not represented by counsel is increasing dramatically.
The prime culprit for this increase may be the perception that lawyers' hourly rates are exorbitant - at least, that's what pro se proponents never fail to suggest. In addition, some jurisdictions are making it easier for pro se litigants. Many jurisdictions offer small claims courts, where unrepresented litigants can tell their story to the judge unfettered by such technical considerations as the Rules of Evidence.
In many jurisdictions, generic pleadings are provided free of charge for unrepresented litigants in family law cases. In my home jurisdiction, Hartford County, Maryland, we even have a paid person whose sole function in life (during working hours) is to instruct people on how to fill out pro se forms - all the while assiduously avoiding giving legal advice.
A Conspiracy Theory
The criminal justice system has taken a different approach to the problem of the unrepresented litigant than the civil justice system. The constitutional theory underlying the right to representation arose out of the idea that people ought not to be deprived of their freedom simply because they could not afford a lawyer.
The Eternal Legal Triangle
The key to successfully dealing with a pro se litigant in the courtroom is to remember to direct all of your comments to the court, even when answering a comment by your opponent. Direct, in-court dialogue between you and a pro se opponent can be quite dangerous.
Since you and your opponents are on opposite sides of the issues, you will find yourself disagreeing with them frequently. Pro se litigants tend to find this annoying and will often respond by becoming very antagonistic. From the pro se's point of view, the issues of the case are black and white, and there are no shades of gray.
But since you will no doubt see shades of gray, you should address those matters by speaking directly to the court. This forces your pro se opponent to direct his or her anger, frustration, and otherwise ill-advised commentary to the court. You can force the "through the court" discussion by looking only at the judge while you speak and while the pro se litigant speaks. Avoid the tendency to look at the speaker. Similarly, make sure your client shows no reaction to any comment. A poker face in the wake of incessant ranting and raving can be very persuasive. - C.D.H. However, there is at least some sentiment that the right to a lawyer in criminal cases arose out of a prosecutional plot to avoid having to deal with unrepresented defendants. According to this legend, prosecutors across the nation believed that their workdays would be shortened considerably if almost all of the defendants they dealt with were represented by lawyers who knew "the system." In a gigantic underground conspiracy, prosecutors united behind the theory that the right to counsel was a constitutional right. In time they found a pro bono lawyer willing to advance their cause by representing, on appeal, an indigent defendant who had been convicted and gone to jail while unrepresented.
The normally perceptive Supreme Court failed to see through the ruse. Not recognizing the implications of their decision, the Supreme Court ruled that unrepresented criminal defendants who could go to jail if they were convicted were entitled to a lawyer. Across the country, millions of prosecutors rejoiced and began planning afternoon golf games because they knew their dockets would be much, much shorter.
All has worked well in the criminal justice system. Most criminal defendants are represented by excellent lawyers. Court clerks have more time to drink coffee. Prosecutors' dockets are much shorter. Judges have much more time to contemplate the law. There has been no such catharsis for the civil justice system; pro se litigants remain, and solo and small firm lawyers need to deal with them on a regular basis.
Follow the Rules (or Not)
In theory, statutes, prevailing case law, and the rules of court apply to all litigants equally. In practice, this doesn't happen. The lawyer is held to the standards that the court knows the lawyer is aware of, while frequently the unrepresented litigant is not held to any standards at all.
The Maryland Court of Appeals has stated on many occasions that the Maryland Rules and Procedures are not simply suggestions for facilitating the practice of law, but rather precise rubrics that are intended to be followed. All lawyers know that certain consequences flow from the failure to follow your state's rules and procedures. Most pro se litigants are not even aware that there are rules and procedures, much less that there are consequences of failure to follow them. Therein lie the seeds of a double standard frequently applied by the courts.
How does a lawyer deal with an unrepresented opponent? Very carefully! The potential for ethical and malpractice problems abounds when a lawyer discusses a case with an unrepresented litigant. Admittedly, there is no one else with whom to hold discussions, but that doesn't diminish the problems that may arise from such discussions. Some lawyers refuse to talk to an unrepresented litigant. Other lawyers who meet with unrepresented litigants attempt to put the settlement discussions in writing. Lawyers who do so religiously will be prepared for that special occasion: Six months after a settlement, an unrepresented litigant decides that the settlement was not favorable to her, and that you misled her. At least you will have the paperwork that documents the course of negotiations and how ethical you were in your approach.
Whenever you settle a case with a pro se during litigation or a settlement conference, ask the judge to put the settlement on record and question the unrepresented party about whether he is satisfied with and understands the terms of the agreement. Also ask the judge to confirm on the record that the unrepresented litigant is satisfied that you have treated him fairly.
If you are in trial against an unrepresented litigant, you have a most difficult problem. It is helpful if you are trying the case before a judge you know. Some judges hold unrepresented litigants very tightly to the rules of evidence and the rules of the court. Others are more inclined to simply let the unrepresented litigant talk on. You, of course, need to protect the record. If you object to everything that is objectionable, you will thoroughly annoy everybody. The better choice is to selectively object to inadmissable testimony that has the potential to be damaging to your case. Letting the pro se litigant babble on about irrelevant things makes the problem the judge's, not yours. It also makes you seem rather reasonable, both to the court and to the unrepresented litigant. This approach, executed properly, defuses a lot of angry pro se litigants.
Employ a rolling analysis of when to make an objection: Based on what has already happened in the case, is the answer to the pro se's question going to help me, hurt me, or be neutral? If it helps you, do not object. If it hurts you and is otherwise objectionable, then object. The vast majority of pro se testimony is neutral - it neither helps nor hurts you. If that is the case, do not waste your time with objections, even if the objection is likely to be sustained. If you do object in this situation, you will annoy the pro se litigant, who will be certain that you are resorting to technicalities to thwart justice. By and large, that will simply make the pro se more angry - a situation that rarely works to your benefit.
Dos and Don'ts
It is a good idea to send a letter to an unrepresented litigant pointing out in rudimentary fashion what will happen at the hearing and what is and is not admissible. That makes it much easier for a judge to rule against a pro se litigant who simply wants to do it his own way.
There are some definite don'ts. Don't do anything to cause the pro se opponent to turn the thing about which she is angry into an all-consuming cause. If you do that, you may never get rid of her. Don't talk down to her. Even if she does not have a clue, treat her as your equal. Treat her with respect; kill her with kindness. Surprisingly, your good behavior is frequently reciprocated. It is helpful to the court if you make a brief opening statement outlining areas where procedural or evidentiary problems could arise. Alert the court to the applicable statute, court rule, or case law and how it deals with the problem that you think might arise. That serves to put everyone on notice of problem areas. It also reminds the court that you want your case handled just like any other case, i.e., by the rules.
In the family law arena, the problem of unrepresented parties is even more acute. It is one thing when an unrepresented party's case involves money or material things. It is quite another when the unrepresented party is a parent of the children in the case. In that instance, the relationship between the parties will continue at least throughout the minority of the children, so it is all the more important to kill the pro se with kindness. You want to do nothing that will plant the seeds of future discord between the parties. That is frequently hard to do in this area.
All in the Family
For example, a new Mr. or Ms. Wonderful has arrived on the scene. Frequently, the former Mr. or Ms. Wonderful does not approve of the new one. The problem grows inexorably to continuing difficulties about visitation and/or custody issues. It follows that the new person will never be appropriate according to one view and is even more appropriate than the actual parent, according to the other view. You will never reconcile those positions.
All you can do is caution your client to handle himself in such a way that the other person's intransigence and unreasonableness become quite obvious to the court. The contrast will be striking, and generally favorable to your client.
A certain escalation of difficulties occurs when dealing with pro se litigants. The more complicated the issues, the more difficult it is to deal with pro se litigants. Perhaps pro se litigants are a higher authority's punishment of choice for the past sins of certain lawyers. Pro se litigants make patience a real virtue, so try to grin and bear it.