Dealing With Pro Se Litigants
By Evan L. Loeffler
I was reminded the other night … of Clarence Darrow when he was prosecuted for trying to fix a jury. The first thing he realized was that he needed a lawyer—he, one of the country’s great criminal lawyers.
Abe Fortas, quoted from Gideon’s Trumpet, Lewis, A., p. 171 (1964).
The goal of litigation is supposed to be to resolve the problem. Sometimes that goal is obscured by the desire to grind the opposition into the dirt, to heap ashes on the dirt, to spit upon those ashes, and finally to build a monument upon the resting place of the opposition as a testament to the virility of the prevailing party and dangers of opposing him. The job description of a lawyer involved in litigation is not only to assist one’s client in achieving the goal of the litigation, but to keep the litigant’s attention focused on the goal. As a trained professional, the lawyer is supposed to know better than to sling insults at the other side, to waste time in producing discovery, and to take the proceedings personally. This is why we have lawyers.
Unfortunately, not everyone can afford a lawyer. Some people who are able to do so choose not to employ one. The increasingly prevalent specter of the pro se litigant requires litigators to re-think trial strategies and methods of communication. Those who believe they may simply run over a helpless pro se litigant will be unpleasantly surprised by the results of this strategy.
As anyone with litigation experience can attest: litigation sucks. An inordinate amount of time and effort goes into drafting pleadings, discovery, research and preparation, seemingly for the purpose of documenting why an underpaid and overworked judge’s decision is wrong. Litigation is not perfect, but it is still considered far better than other less-civilized methods of dispute resolution including dueling and the time-honored tradition of open warfare. In an effort to make litigation less expensive and streamlined, bar associations the world over have implemented rules of procedure. For the most part, professional litigators embrace these rules. The rules assume, however, that the adverse parties are acting as mature adults. Unfortunately, this is not always the case (even among professionals). The pro se litigant is generally not as noble-minded as an attorney. By definition the pro se is in it for himself and the outcome will affect him in a very real manner in the immediate future. This is not an intellectual exercise; the pro se is playing for keeps.
The basic axiom in dealing with pro se parties is contained in the Rules of Professional Conduct:
Rule 4.3 of the Model Rules of Professional Conduct: Dealing With Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Put simply, Rule 4.3 states that a lawyer should not give advice to the pro se other than to get a lawyer. State rules and local rules put additional burdens on the attorney, such as identifying the parties and the issues in dispute.
In practice, this is not as easy as it sounds. Frequently, a pro se party who has been served with legal documents will call the lawyer who signed them and demand an explanation. The answer, “get a lawyer” is unlikely to resolve the problem or result in anything other than ill will.
In my practice, I deal with pro se parties on a regular basis. I have developed some guidelines:
Always Be Polite and Respectful
Don’t be rude or nasty to a pro se. This should really go without saying. The rules of professional conduct and basic rules of civility apply to all communications (something some lawyers would do well to remember), but this can be difficult when a pro se is screaming obscenities at you or questioning your place on the food chain. While it’s no excuse, the fact is the pro se does not understand the adversary nature of the system and takes everything personally. The fact that you do not agree with her position, mean, in her opinion, you are (a) stupid, (b) evil, (c) unethical, and (d) all of the above, again.
Responding rudely to a pro se may occasionally be satisfying, but it does not help your case. The enraged pro se will be incented to file motions for sanctions, bar grievances and appeals. Responding to these motions take up valuable time and resources. Whether a lawyer can charge his time to his client for responding to a motion for sanctions is a question for one’s conscience and possibly one’s malpractice carrier. It is far better to keep it civil pretend not to hear the insults.
Make Your Role Clear
In settlement communications and any other discussion, the pro se may ask questions that cross the line into asking for help. Some examples:
- How do I respond to the summons and complaint?
- What should I say if I want to fight this?
- How do I issue a subpoena?
- What happens at a show cause hearing?
- What happens if I file for bankruptcy?
Be firm that you will not give help. The answer to these questions, in summary, as follows:
“My ethical duty as a lawyer requires that I make very clear my role in this matter. I represent the other side, not you. I cannot and will not give you legal advice. You should get a lawyer. I will not refer a lawyer to you.” Polite but firm adherence to these rules during communications usually gets the point across.
This does not mean you cannot discuss the merits of the case with a pro se litigant. I will explain what relief I am seeking on behalf of my client, and why I believe my client is entitled to that relief. I am careful, however, to keep the discussion away from discussions of civil procedure. I will mention the possibility of settlement and attempt to determine if this is a possibility.
Don’t Rely on Using Courtroom Procedure to Win the Case
The lawyer is ill-advised to rely on the court to limit the pro se litigant from putting on her case due to the failure to fully comply with pre-trial procedures. It may be a surprise to some attorneys, but judges really are aware of the rule that pro se litigants are supposed to be held to the same standards as lawyers.
The fact is many judges will not rigorously enforce this rule. Judges are aware of the high likelihood of pro se litigants appealing. They want the record to show that the case was resolved on the merits despite procedural irregularities caused by the pro se party’s acts and omissions. In Washington State, for example, tenants are required to pay disputed rent into the court registry or to file a sworn statement there is no rent due including the reason why. Even though the rule specifically requires it, a judge will rarely keep the tenant from presenting a defense if the statement fails to meet all the requirements of a sworn statement.
Get Everything in Writing
Of course, this rule applies to all communications relating to litigation, but it is more important when dealing with a pro se party. The lack of trust between the parties, coupled with the fact the pro se usually does not understand all the legal concepts behind waiver, makes it difficult enough to settle. Proving there was, in fact, a meeting of the minds by following up with a letter or a signed settlement agreement makes a record the lawyer was not “playing lawyer tricks” with the pro se litigant and solves a lot of problems.
Don’t Take the Pro Se Lightly
Prepare for the case as you would against a seasoned litigator. As with attorneys, pro se litigants can be of varying degrees of competency. Generally an incompetent attorney is not difficult to spot. On the other hand, in many cases the presumption is that a pro se litigant is incompetent. This is a dangerous and frequently incorrect assumption. Many pro se litigants are a hell of lot smarter and more experienced than you think. I have seen several attorneys swagger into court assuming they would run roughshod over the hapless pro se only to be caught unawares by a well-prepared opposition. Also, it is always possible an attorney may appear at the last minute. It is never too late to hire a lawyer, even on the day of trial in order to secure another delay in the proceedings.Evan L. Loeffler’s practice emphasizes landlord-tenant relations in Seattle, Washington. Mr. Loeffler frequently lectures on landlord-tenant law and ethics for lawyers and property managers. He can be reached at The Law Office of Evan L. Loeffler in Seattle, Washington at (206) 443-8678 or at firstname.lastname@example.org .
© Copyright 2010, American Bar Association.