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Litigation News

Fall 2023, Vol. 49, No. 1

The Perils of Dealing with Pro Se Litigants

Carl Aveni


  • Pro se litigants present unique challenges to a judicial system that prizes uniformity and consistency.
  • The lawyers practicing in that system typically receive three years of specialized education, tracking a mostly standardized curriculum, approved by a national accrediting institution.
  • The pro se litigant, by contrast, typically possesses none of that education, training, or experience.
The Perils of Dealing with Pro Se Litigants

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A time-worn adage, sometimes misattributed to Abraham Lincoln, observes that “the man who represents himself has a fool for a client.” Whether that axiom holds true in any particular case or not, pro se litigants present unique challenges to a judicial system that prizes uniformity and consistency.

The lawyers practicing in that system typically receive three years of specialized education, tracking a mostly standardized curriculum, approved by a national accrediting institution. They pass a professional certification exam. They may apprentice with a firm or receive mentoring by a local bar organization. They bind themselves to a uniform set of professional standards, at peril to their licensure. They work in an arcane system, filled with unfamiliar terminology and byzantine processes, that places premiums on order and predictability.

Pro se litigants, by contrast, typically possess none of that education, training, or experience. Their knowledge of the courtroom might be limited to whatever view they have managed to glean from books, movies, and television. And rarely will they have any practical familiarity at all with the critical—but less telegenic—work that happens in the discovery and pretrial phases of litigation. Because they are advocating on their own behalf, they may be less objective in their assessment of the facts or more emotional in their demands. They may have unrealistic ideas about case valuation or probability of success. They might fundamentally misunderstand precedent or the prima facie elements of the case. They might be suspicious or hostile to counsel, the court, and the system alike.

Or, maybe, none of those things. Sometimes, pro se litigants are as strategic, dispassionate, and principled as their professional counterparts. They can be as careful in their dealings and as persuasive in their arguments. They might surprise you with their grasp of procedure or the perfectly apt case they found online, which you didn’t see coming. It’s their fight, and they might be willing to invest time and energy into winning it that a professional would consider disproportionate to the dispute.

Simply put, you just never know. And even that can be a problem. In a system that values consistency and predictability, pro se litigants often possess other qualities, making them hard to pigeonhole and frustrating to deal with.

Courts Struggle to Be Even-Handed

Rule 2.2 of the Model Code of Judicial Conduct broadly directs that judges must perform “all duties of judicial office fairly and impartially.” Which is to say that courts should not try to level the playing field by treating pro se litigants with any special favor. Accordingly, most states have developed a long line of cases for the idea that “a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes. This Court, therefore, must hold pro se appellants to the same standard as any represented party.”

In recent years, however, courts have increasingly recognized the tension between this mandate of even-handedness and the general preference that cases be resolved on their merits instead of on procedural technicalities. Pro se litigants, being less well-versed with procedure, are naturally prone to run afoul of the technical requirements of modern practice—whatever the substantive merits of their claims or defenses. A court that is willfully blind to that reality may well dismiss substantively meritorious pro se claims or defenses, based on curable technical deficiencies, in a theatrical display of even-handedness.

For that reason, the Comment to Model Rule 2.2 has been amended to add that “it is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” How much latitude courts afford pro se litigants to cure those procedural deficiencies, and how much guidance or advice courts offer along the way, will vary widely based on the facts and history of each matter, the philosophy of the court, the sophistication of the pro se litigant, the reasonableness of the deficiency, and the suitability of cure. Which is to say that these determinations inevitably frustrate overarching systemic goals of consistency and predictability.

Lawyers Face Ethical Pitfalls

Indeed, the risks are even more fraught for the lawyers involved. However pro se litigants comport themselves at the courthouse, they may behave quite differently in their unstructured dealings with counsel. They may express suspicion or hostility, conflating the lawyer with the lawyer’s client. Conversely, they may become unduly solicitous, asking the opposing lawyer’s advice and guidance on how to frame claims or defenses.

Sometimes, pro se litigants feel unbound by the constraints of Civil Rule 11 to be honest in their dealings with court and counsel. Sometimes, their claims are fanciful, frivolous, or delusional. Sometimes, their behavior is physically threatening. And, then again, sometimes pro se litigants turn out to be as professional, dispassionate, effective, and reasonable as any paid advocate. In your early interactions, you simply won’t know. Therefore, use these four practical tips to help you navigate that relationship.

  1. Be clear about your role and representation. Model Rule of Professional Conduct 4.3 directs that “[i]n 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.” This is best accomplished by letter at the beginning of the representation, introducing yourself and unequivocally establishing whom you represent and how those interests are adverse. That same letter allows the lawyer to set the parameters of future interactions, adhering to Rule 4.3’s corollary dictate that “[t]he 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.” 
  2. Memorialize all communications in writing. Whether through misunderstanding or a desire to reframe outcomes more favorably, pro se litigants will sometimes recall discussions differently than their professional counterparts. What was discussed, what was agreed, what deadlines were imposed or extended. These disputes are easily sidestepped by keeping a contemporaneous running log of all contacts and then memorializing all discussions and conclusions in a follow-up letter. 
  3. Be polite and professional. However emotionally involved, aggressive, or discourteous the pro se litigant, the lawyer should not respond in kind. While it may be tempting to meet threat with threat, decibel by decibel, lawyers remain bound by duties of civility implicit in the Model Rules. Uncivil conduct ratchets up the cost of litigation for all sides and makes it harder to reach resolution. 
  4. Consider physical safety. If your previous interactions with a pro se litigant have turned aggressive or threatening, consider whether depositions, settlement conferences, and other face-to-face interactions might be best done at the courthouse, past security, with deputies nearby. Judges get these requests from time to time, and we always take them seriously.

While it may never be cause for celebration that an opposing litigant has decided to self-represent, the challenges of pro se litigants are best met by transparency, professionalism, and mindfulness.