Roadblock:
The self-represented party automatically assumes that you are an evil attorney, determined to beat him down at any cost.
Resolution:
Treat the self-represented party with common courtesy. Tell him what court floor the family court is on. Hold the door when he enters the building. Say “Good morning.” Kindness can be disarming and may derail a case that would otherwise be headed for trial. Your legal prowess will win in the courtroom, but your courtesy may keep the case out of court altogether.
Roadblock:
The self-represented party feels that you have “insider information,” leading to bitterness and resentment. She believes that you, as an “insider,” have the strategic advantage.
Resolution:
Communicate. A lack of information on either side can quickly stall the settlement process. Communicate your position, your intentions, and important information such as dates and deadlines. You can zealously advocate for your client and still tell the self-represented litigant that you will be prepared to exchange proposals for the pretrial conference in two weeks. Open communication helps self- represented parties feel in control of the process. Of course, do not provide legal advice to any self-represented adversary.
Roadblock:
The self-represented party claims that you promised a modifiable alimony term during a phone call.
Resolution:
Communicate in writing whenever possible. Recollections can differ and lead to a stalemate over important issues. Avoid phone calls whenever possible. To help prevent misunderstandings, use dedicated software or a folder in your email manager to maintain the emails you send and receive.
Roadblock:
The self-represented party claims that he does not understand (your position, your request, etc.).
Resolution:
Speak and write simply. The legal language is complex and intimidating to many people. Self-represented parties may feel more comfortable in front of a judge than answering an email filled with words they do not understand. Avoid legal jargon, and consider swapping legal words and phrases for common parlance. The goal of communication is not to feel smart or powerful; it is to relay an idea to the recipient of your communication. If a self-represented party has to Google “ipso facto” before he answers your email, he may become frustrated with the process and abandon settlement discussions. This principle extends to production requests. Tailor your request to the case, including by changing terms when necessary.
Roadblock:
The settlement terms seem overwhelming to the self-represented litigant, and she keeps confusing alimony with the property division.
Resolution:
Memorialize your position in a proposed “term sheet,” or list of definitions. Self-represented parties sometimes feel buried by information, leading them to “shut off” or stop negotiations. Term sheets can be short, easy to understand, and manageable. They enable self-represented parties to clearly understand a settlement proposal without pages of legal jargon. Number each paragraph and provide a clear and concise heading, such as “Time Period for Alimony” or “Payment of College Tuition.” Make sure the self-represented party understands that the term sheet is not the final, binding agreement.
Roadblock:
The self-represented party cannot understand your standard separation agreement.
Resolution:
Consider a stipulation for judgment. Self-represented parties may become overwhelmed by a thirty-page agreement and abandon a deal over sheer panic. Detailed, dense settlement agreements are not always necessary. If your jurisdiction permits, consider a simple stipulation for judgment instead of a lengthy separation agreement. Include what is truly necessary to protect your client’s interests. Abandon the legalese.
Roadblock:
The settlement stalls. In order to get it back on track, you send a gentle reminder that you have been in front of Judge Doe many times, and she will not like (the party’s behavior, the party’s legal theory, etc.).
Resolution:
Avoid self-accolades. The self-represented party knows that you have the legal advantage. “Casually” mentioning how many times you have appeared before a particular judge may seem like a good way to push a party towards settlement, but the self-represented party may feel bullied and marginalized, leading him to seek affirmation that the system is, in fact, an even playing field.
Roadblock:
The self-represented party is not following the rules of procedure regarding trial compliance. You feel that telling him about the rules is self-sabotage, as you may have a strategic advantage if he does not provide you with an exhibit list ten days ahead of trial.
Resolution:
Direct the party to the relevant rules of procedure. Judges rarely hold self-represented parties to the same standards as lawyers. Rather than hope for a strategic windfall, simply tell the party that you are prepared to follow the rules as written. If he still refuses to comply, ask for an immediate status conference. Do not wait until trial.
Roadblock:
The self-represented party’s witness list is a mile long and includes her grade school teacher.
Resolution:
Utilize motions in limine and move to preclude whatever witnesses are irrelevant. If the self-represented party is aware of your objections in advance, you may be able to work out an agreement. If possible, ask for a pre-trial status conference.
Roadblock:
The self-represented party has violated every evidence rule on the books, and the judge does not seem to care.
Resolution:
Weigh your objections carefully. “Objection, leading” becomes tiresome after the fortieth objection. However, politely stand your ground and make the objections that truly matter, such as hearsay. In the event that either side needs to appeal, a clean record is necessary.
Roadblock:
The self-represented party is delivering an endless monologue about irrelevant topics and calling it a direct examination.
Resolution:
Let it go unless it hurts you. The judge will appreciate your restraint and will listen to your objections when you raise them.
Reaching the end of a case is never easy. Settling or trying cases with self-represented parties can be especially difficult. However, with patience and an acknowledgement that such individuals require different handling than lawyers, you can avoid the major roadblocks associated with the challenge of settling or trying a case against a self-represented party. fa