January 16, 2020 Practice Points

Defending Against a Pro Se Litigant – Six Tips

Navigate the rocky waters by preparing for some unique issues ahead of time.

By Miriam Manber

Defending a case where the plaintiff is self-represented presents a different and unique set of challenges, both legal and practical. The following is a sampling of issues that may arise in the lead-up to trial and during the trial itself, all of which you will want to consider and prepare for ahead of time. Although it may entail some extra hours ahead of time, the judge will be extremely appreciative of that preparation when it is clear that you took the time to make the trial run as smoothly as possible.

· If the judge requires a joint pretrial submission, offer to put together the first draft with your half of the information (witnesses, exhibits, and so forth). Although the plaintiff usually does the first pass at putting this information together in most jurisdictions, you likely have the benefit of having done this before. You can therefore model for the plaintiff how to most efficiently present his own information, including by clearly marking where he needs to include his own information, and explaining what goes in each section. Agree on a schedule for exchanging drafts and objections with the plaintiff, keeping in mind that he may need more time than you to complete his sections—not just because he is not a lawyer, but also because he may be doing this in his evening hours after work.
· Simplify objections as much as possible. When listing objections to exhibits in the pretrial submission, give a brief basis for your objection, not just a citation to a rule of evidence. Even something as brief as “not relevant to plaintiff’s claims” will go a long way to help ensure that that the plaintiff understands the controversy, and (more importantly) that the judge is satisfied that the plaintiff is able to understand your objection and offer any counter-arguments he may have.
· If the plaintiff intends to present his own testimony, clarify with the judge at the final pretrial conference what the format of that testimony will be. As odd as it may sound, some judges require the plaintiff to ask himself a question and then give the answer, so as to preserve the opposing counsel’s ability to object. Some judges allow the plaintiff to give a narrative of his version of events. It is helpful to be able to anticipate any potential issues ahead of time.
· Prepare your witnesses for the fact that the plaintiff will question them directly, keeping in mind that the witness may have a pre-existing relationship with him. Caution them to be as respectful as possible, regardless of any inter-personal issues that the witnesses may have had with the plaintiff. Getting into a heated discussion on the stand is to be avoided; a respectful and professional demeanor will go a long way in convincing the trier of fact that the witness is credible and reliable.
· During trial, avoid objecting to testimony unless the topic is truly irrelevant or prejudicial. If it’s a minor digression or inefficiency, the judge will likely take it upon himself to gently nudge the plaintiff to correct his course. Too many objections from the defense table will run the risk of making you look like a bully.
· At the close of evidence, commend the plaintiff on a job well done. It shows professionalism and respect. We spent a long time learning trial skills, and the plaintiff did the best he could with an intimidating task—take a moment to acknowledge that.

Miriam Manber practices commercial and employment litigation at Hoguet Newman Regal & Kenney, LLP, in New York City.

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