An individual’s right to represent himself or herself in federal court is expressly codified in 28 U.S.C. § 1654 (2018), which provides: “In all courts of the United States the parties may plead and conduct their own cases . . . therein.” Similarly, many states have codified the rights of pro se litigants in their respective constitutions and statutes. Drew A. Swank, “The Pro Se Phenomenon,” 19 BYU J. Pub. L. 373, 375 (2005). Indeed, according to the Supreme Court, there is “no evidence that the . . . Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel.” Faretta v. California, 422 U.S. 806, 832 (1975).
The Pro Se Trend
Their rights notwithstanding, pro se litigants create many obstacles for our judicial system as a whole. Indeed, pro se lawsuits are viewed by many as “a type of litigation that’s just riddled with problems on every level.” Lois Bloom, Statement at Pro Se Litigation Panel Discussion, National Workshop for District Judges I (Fed. Judicial Ctr. Mar. 22, 1995). As one commentator has stated,
[p]ro se litigation is difficult for us to handle at least in part because it doesn’t fit into the neat box of our traditional system of litigation, the adversarial method of resolving disputes. That system assumes that the parties know the law, are adept at procedure and the rules of evidence, and can marshal significant facts, present their side of the case to the factfinder thoroughly and lance the arguments of the opponent. But pro se litigants are capable of little if any of that.
John C. Sheldon, “Thinking Outside the Box about Pro Se Litigation,” 23 Me. Bar J. 90, 91 (2008).
Not surprisingly, this disparity in legal knowledge and skill on the part of pro se litigants produces a host of unique problems for the courts and the bar in general and, in particular, for trial counsel. Nevertheless, despite the many challenges they bring to the table, pro se litigants are here to stay, and their numbers are steadily growing. According to the National Center for State Courts, the number of pro se litigants in civil cases continues to rise, and there is every reason to believe this trend will continue. https://www.ncsc.org/. In fact, the number of annual non-prisoner pro se filings each year in federal courts alone tops about 25,000 and constitutes a significant section of the federal caseload. Jefri Wood, Pro Se Case Management for Nonprisoner Civil Litigation (Fed. Judicial Ctr. Sept. 28, 2016).
Tips for Trial Counsel
Courts across the country are increasing the resources available to the surge of pro se litigants attempting to navigate the judicial system. Courts are not only addressing the legal and procedural obstacles facing pro se litigants, but they are also focusing on “sociological [and] psychological aspects of how unrepresented litigants feel about the overall litigation experience.” Id. at 3. Likewise, attorneys, and civil trial lawyers in particular, must be cautious of the challenges and special considerations involving pro se litigants.
Let the pro se party’s voice be heard. Individuals representing themselves at trial in civil litigation are often battling hardships on many fronts. Generally, they have found themselves in an unfamiliar and intimidating setting governed by a labyrinth of substantive and procedural rules, along with unwritten local customs and expectations. This maze can be challenging for even the most tested trial attorney. It is particularly daunting to pro se parties. Of course, it is frequently not by choice that pro se parties are in trial without the benefit of legal counsel. Whether they are acting as a plaintiff or a defendant, their status as a pro se party is many times forced by precarious financial situations. Moreover, the types of lawsuits in which pro se litigants are regularly involved—employment, professional malpractice, personal injury, whistleblower cases, and collections, to name a few—are often particularly rife with emotion and typically involve allegations of a sensitive, personal, and sometimes embarrassing nature. Indeed, these cases are often plagued by feelings of anger, resentment, pride, shame, and revenge. To make the situation even more challenging, pro se litigants frequently take the drastic step of representing themselves in civil litigation because they view themselves as victims of a wrong that must be made right, and they do not view as primary considerations the time and costs associated with redressing the wrong.
When pro se litigants feel they are being shut out from the process or that their voices are being stifled, these challenges—and the accompanying risks—are amplified. In fact, studies show that notions of fairness heavily influence and guide pro se litigants. Id. at 4. Indeed, “research has repeatedly established that when litigants perceive that a decision-making process is fair, they are more likely to be satisfied with the outcome.” Self-Represented Litigation Network, Handling Cases Involving Self-Represented Litigants: A National Bench Guide for Judges 2–4 (2008).
Trial attorneys who are not mindful of the psychological and sociological elements at play when litigating against pro se parties risk exacerbating an already difficult situation by increasing the likelihood of protracted and unfocused litigation, appealable procedural missteps, and unmanaged expectations. Thus, at the outset of the lawsuit, an attorney facing a pro se opponent should make every effort to determine what is motivating the litigation (e.g., hurt feelings, anger, unmitigated expectations) and, if possible, the reason for the lack of representation. Throughout the pretrial process and during trial, a primary objective of counsel should be to strategically allow the pro se litigant to air his or her grievances in such a way as to limit the scope of triable issues while still being satisfied with his or her day in court.
Limit the scope of trial. Pursuant to federal and state rules of evidence and procedure, courts are responsible for establishing ground rules to efficiently manage and regulate trial practice and trial testimony. This is especially important when trial involves a pro se party because the lack of substantive and procedural knowledge can create an ever-changing, and often ever-expanding, litigation framework. Accordingly, trial counsel should make use of pretrial briefing mechanisms—including motions in limine and bench memoranda—to limit the issues for trial. Pretrial briefing affords the pro se litigant the opportunity to have his or her voice heard on the issues while efficiently framing the matters for trial. If the rules of court do not impose page limits on the particular mode of briefing being used, trial counsel should ask the court to set a page limit to help focus the discussion. In addition, trial counsel should consider asking the court to allow the parties to submit in advance their questions for direct examination to both limit improper objections and further focus the testimony on relevant, admissible evidence.
Do your homework and educate the court. It is important, at the outset of a case, for trial counsel to determine if he or she is litigating against a wolf in sheep’s clothing. “When the pro se litigant is really an expert litigant, the court’s sympathy for his presumed inexpertise diminishes markedly.” Scott L. Garland, “Avoiding Goliath’s Fate: Defeating a Pro Se Litigant,” Litigation, Vol. 24, No. 2 (Winter 1998), at 45, 50 (1998). A search of the county or state docket may reveal that the pro se party has actually been involved in numerous lawsuits and maybe has even been deemed a vexatious litigant. Armed with this knowledge, counsel is better equipped to handle both interacting with the self-represented party and convincing the court that the pro se party’s failure to follow the rules warrants sanctions.
With that said, some breaches of procedure by a pro se litigant are important, while others are not. To navigate these inevitable breaches to the benefit of a client, counsel must determine how the court generally views such breaches and take steps to ensure the court understands when the breaches are material (e.g., the breach prejudices a party unfairly). However, even potentially armed with such knowledge, the court may have a “tendency to stretch or ignore the procedural rules in the pro se litigant’s favor.” Id. at 50. While counsel can continually remind the court that the pro se litigant must be held to the same standard as an attorney, “some courts may still regard procedural breaches as relatively unimportant.” Id. Thus, it becomes imperative “to convince the court that the procedural breach is a serious matter.” Id. In other words, counsel must educate the court in both a succinct and compelling way—whether through an oral objection or appropriate written means—that the pro se litigant’s procedural failure is unduly prejudicial to counsel’s client, the court, the administration of justice generally, or some or all of these.
Settle! Of course, given the unique obstacles involved with litigating against a pro se party—including the absence of the important buffer between the party and his or her emotions and, more times than not, unreasonable expectations—the key to trial success may be avoiding trial altogether! To that end, early alternative dispute resolution proceedings can be exceedingly beneficial. A neutral third party can often insert reasonableness otherwise lacking into the pro se party’s view of the strengths and weaknesses of the case.
There is every reason to believe that the number of pro se litigants involved in litigation in federal and state courts will continue to rise in the coming years, especially given the courts’ focus on increasing access to pro se parties. Along with this increase, the challenges facing the judicial system and trial counsel involving unrepresented parties will continue to rise, requiring increasingly careful consideration. However, armed with the best practices, trial counsel can help alleviate some of the challenges both sides of the aisle face.
Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).