Courts across the country are encountering hundreds, if not thousands, of litigants without a lawyer each year. In her recent article for Family Advocate magazine “Approaching Your Case Against the Pro Se Litigant,” family lawyer Yolanda F. Sonnier of Randall & Sonnier, LLC, says that unrepresented parties present several challenges to the lawyers opposing them as well as the courts.
Among complications, Sonnier says that lawyers should be careful in speaking with pro se litigants because “a conversation may become conflicted or argumentative or the discussion may be misinterpreted to the court.” Moreover, “Due to ethical concerns, some attorneys decline to discuss a case with the pro se litigant, except to indicate that the individual should hire an attorney.”
To help lawyers and courts in handling matters when a pro se litigant is involved, Sonnier provides several practical tips to help ensure the best possible outcomes.
Tips for attorneys:
Be objective. Avoid inserting your own bias about why the individual is unrepresented by counsel; this may affect your handling of your client’s case. “You may have an easier time settling your client’s case if you are not dismissive or abrupt with the pro se litigant,” Sonnier advises.
Communicate. Communicate with the unrepresented party in lay terms and limit your use of legal jargon, as the pro se litigant has factual information, but not legal knowledge.
Advocate for your client. Represent your client just as you would if counsel represented the opposing party; don’t let down your guard when the opposing party is pro se. This includes conducting discovery and ensuring that you receive adequate responses. If you fail to zealously represent the interests of your client, you may be on the road to committing malpractice by underestimating a pro se litigant.
Document, document, document! Document every conversation and agreement with the pro se litigant to minimize the discrepancies as to what has occurred in your client’s case. This paper trail will also serve as evidence to protect you against any potential allegations of ethical violations, such as providing legal advice to the pro se litigant.
Follow the law. Adhere to requirements and deadlines for exchanging information and disclosing witnesses and exhibits, just as you would with a lawyer on the other side. “Don’t expect a court to enforce those rules to protect you from the pro se’s last minute exhibits or surprise witnesses if you have not adhered to the rules yourself,” Sonnier warns.
Prepare documents in advance. Prepare settlement agreements and consent orders in advance. This will provide ample time for parties to review, and avoid the “anger take back” or counter the last-minute legal advice of the pro se litigant’s friends and family.
Prepare your client. Don’t relax your trial preparation because the opposing party is pro se. Talk to your client about avoiding reactions to annoyances that could damage his or her credibility with the court. Prepare your client by advising on techniques to keep calm and composure while answering questions appropriately.
Preserve the record. Don’t be afraid to make objections and proffer testimony the court may not allow. “There may be times when you must respectfully object to the court’s asking too many questions or relaxing the rules of evidence,” Sonnier says.
Tips for courts:
Develop best practices and policies to deal with pro se litigants. Train and advise judicial officers about scenarios they may address while presiding over a matter.
Do not substitute for legal counsel. “Attorneys and represented parties are often frustrated when a judicial officer appears to be providing representation to the pro se litigant, while at the same time making decisions in the case,” Sonnier says. Judicial officers should be instructed to remember that there is a fine line between protecting justice for a pro se litigant and trampling the rights of the represented party.
Let lawyers do their jobs. Do not penalize attorneys for providing competent and diligent representation to their clients. Allow attorneys to preserve the record, which may mean reacting to the court’s relaxing of evidentiary rules to assist the pro se litigant.
Advise pro se litigants to seek counsel. As part of the court’s best practices, notify all unrepresented parties of their right to be represented and the benefits of retaining a lawyer. This information should be reiterated so that the parties understand that postponements will not be granted based on a later request to seek counsel. Postponements are detrimental to to other pending cases awaiting their day in court, to attorneys in those cases, and to judicial efficiency generally.
Use standardized forms. Make standardized pro se forms available at the courthouse, as well as reaching pro se individuals online. “It is better for the pro se litigant to submit a standard answer, rather than attempting to create one with no knowledge of how to answer the pleading,” Sonnier says.
Provide assistance. Develop a plan to respond to the growing class pro se litigants, and establish an office to answer their questions, as well as assisting them in filling out standardized forms. Seek assistance from local bar associations, as this endeavor may be a potential referral source to its members and may provide cases for lawyers seeking pro bono opportunities.
Share ideas and processes. Communicate with other judicial officers across the country in seeking and sharing fresh ideas to improve our courts