YourABA June 2011 Masthead

Five tips on dealing with pro se litigants

The number of pro se litigants is on the rise, and lawyers facing these litigants in court should re-think their usual trial strategies and methods of communication, says Evan Loeffler of The Law Office of Evan L. Loeffler, in his GPSolo Law Trends & News article, “Dealing with Pro Se Litigants.” “Those who believe they may simply run over a helpless pro se litigant will be unpleasantly surprised by the results of the strategy.”

Dealing with pro se parties on a regular basis, Loeffler says that many pro se litigants do not understand the rules of procedure and adversary nature of the system, and often take everything personally.

“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,” says Loeffler, referencing Model Rule 4.3, which states that a lawyer should not give advice to the pro se other than the advice to seek counsel.

Loeffler follows five guidelines when his opposition is a pro se litigant.

Always be polite and respectful. Loeffler emphasizes civility in all communications, even when a pro se is rude or nasty. “The enraged pro se will be incented to file motions for sanctions, bar grievances and appeals,” he warns, noting that responding to these motions takes up valuable time and resources.

Many lawyers assume that pro se litigants are incompetent. “This is a dangerous and frequently incorrect assumption,” warns Loeffler.

Make your role clear. The pro se may ask questions—What should I say if I want to fight this? How do I respond to the summons and complaint?—that cross the line into asking for help. While lawyers can discuss the merits of a case, they should steer clear of discussions of civil procedure. Loeffler offers a suggestion for response:

“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.”

Don’t rely on using courtroom procedure to win the case. While pro se litigants should be held to the same standards as lawyers, judges often do not rigorously enforce the rule. “Judges are aware of the high likelihood of pro se litigants appealing,” explains Loeffler. “They want the record to show that the case was resolved on the merits despite the procedural irregularities caused by the pro se party’s acts and omissions.”

Get everything in writing. Lawyers generally keep records of all their communications relating to litigation, but it is especially important when dealing with a pro se. “The lack of trust, coupled with the fact that the pro se usually does not understand all the legal concepts behind waiver, makes it difficult enough to settle,” says Loeffler. “Proving that there was, in fact, a meeting of the minds by following up with a letter or signed agreement makes a record the lawyer was not ‘playing lawyer tricks.’”

Don’t take the pro se lightly. Many lawyers assume that pro se litigants are incompetent. “This is a dangerous and frequently incorrect assumption,” warns Loeffler, indicating that pro se litigants can be of varying degrees of competency. “Many pro se litigants are a hell of a lot smarter and more experienced than you would think.”

Dealing with Pro Se Litigants” appeared in the fall 2010 issue of GPSolo Law Trends & News, a newsletter of the General Practice, Solo and Small Firm Division.

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