A fundamental principle of fairness in litigation is that the rules of procedure apply to all parties, including pro se litigants. While the courts ultimately adhere to this concept, many will exhibit great patience with pro se parties who fail to strictly adhere to the rules, in the interest of assuring them the same access to justice as represented parties, even if that comes at times at the expense of procedural efficiency. As a result, litigating against a pro se party can be more time-consuming and more expensive for our clients than facing off against another represented party.
Despite this deferential approach, pro se litigants can push things too far. Although courts sanctioning pro se parties for failing to follow the rules is a relatively rare event, it does happen at times, reaffirming the overarching principle that the rules apply to everyone.
In Vaks v. Quinlan, et al., Civil No. 18-12751 (D. Mass. Feb. 24, 2020), the pro se plaintiff filed a motion to compel and for sanctions, arguing that the defendants and their attorneys were obstructing the discovery process, refusing to produce documents, and violating “every Federal Rule . . . related to discovery” in bad faith. This motion backfired, as it led the court to review the conduct of the parties on both sides and of the defense attorneys. The court concluded that it was the plaintiff, not the defendants, who had flouted the rules.
The plaintiff filed late discovery requests, which the court found to be overly broad and disproportional to the case; she made a material misrepresentation to the court, in writing; and she filed documents with the court that were obtained in discovery subject to a protective order, without seeking to file them under seal. These and other failings led the court to strike some of her motion filings and order that before filing any other motions in the case, the plaintiff must first file a motion for leave to file. (The court also addressed the merits of her motion to compel, separately, and denied it.)
While such an order may be seen as a “win” for the defense in some respects, it says nothing about the ultimate merits of the plaintiff’s case, and potentially adds another cumbersome procedural layer to the pretrial process that the other party’s counsel will have to expend time dealing with.
How should attorneys deal with pro se opponents to smooth the process and minimize potential added difficulty and expense? One technique is to simply communicate with the pro se party. It is never wise to take an opposing party lightly simply because they are inexperienced in the way of civil procedure. Their case may have some merit, and they are directly invested in the outcome. It can therefore be beneficial to engage with the pro se party early in the case, in a polite and professional manner, and make your role clear to them.
An attorney cannot provide legal advice to a pro se opponent, and hearing that may help defuse a confrontational reaction later, if they hear now, for example, that you cannot advise them on how to respond to a motion or discovery request. Let them know that your inability to help them with the process is not a sign of disinterest, it is the result of your ethical obligations to your own client, and the need to avoid even the appearance of a conflict of interest.
Consonant with being professional is maintaining a calm demeanor. Pro se parties are directly affected by the litigation and its outcome, which can lead to sometimes emotional interactions. It may benefit your client if you remain calm, explain to the other party what you are doing and why you are doing it, and which rules permit you to do so. A calm explanation may go a long way towards defusing a potentially costly confrontation through needless motion practice.
Remaining professional and calm throughout will also serve the attorney well if, eventually, the pro se party’s grievances end up before the court on a motion to compel. The court will be able to see that the attorney’s conduct was appropriate and professional, leading to a better result for the client, as in the case of Vaks v. Quinlan.
