New England Biz Law Update
In an age where self-help books dominate bookstore shelves and attorneys’ fees are at record highs, it is little wonder that pro se plaintiffs are growing in numbers. The proliferation of pro se plaintiffs causes stress upon the court system, judges, juries and attorneys alike.
Court clerks find themselves providing procedural advice with each form they hand out to pro se plaintiffs. Judges, with an already clogged docket, find themselves having to slow down the legal process for pro se plaintiffs, while maintaining their dutiful impartiality.
Attorneys often find themselves with emotionally charged adversaries who have little or no understanding of time lines, due dates, discovery requests, or rules of evidence and civil procedure. Attorneys opposing pro se plaintiffs have a particularly difficult job zealously representing their own clients. They are automatically dubbed the “Goliath” by the court and juries, and find themselves pitted against the seemingly defenseless “David” pro se plaintiff.
There is scant literature on the subject of pro se litigation. In fact, according to a paper in the American Bar Association’s Judges’ Journal, Fall 2002, “The ABA has no policy directly on pro se litigation.”
The ABA conducted a research survey several years ago in Maricopa County, Ariz. and found that “the primary reason self-help litigants gave for going forward without a lawyer was the belief that they could navigate the system and obtain their desired outcome on their own.” Id. at 4; citing: A Report on Self-Help Law: Its Many Perspectives, ABA, 1985.
According to the Judges’ Journal, several courts now provide forms and online assistance to pro se litigants. Id. at 7, note 19; citing Delaware, Florida, Hawaii, Idaho, Maine, Maryland, New York, Washington and Wisconsin.
From the Courts’ Perspective
In 1998, the American Judicature Society/Justice Management Institute surveyed 612 judges chosen from various state courts regarding pro se litigation. (American Judicature Society, 82 Judicature 13, July/August 1998.)
As a general rule, the judges surveyed stated that a pro se litigant must comply with the rules and orders of the court, [and] enjoy no greater rights than those who employ counsel. Although pro se pleadings are viewed with tolerance a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar. A party’s pro se status does not require us or the trial court to assume he must be led by the hand through every step of the proceeding he initiated.
Id. at 16, citing Newsome v. Farer, 708 P.2d 327, 331 (N.M. 1985); see also Haines v. Kerner, 404 U.S. 519, 520 (1972); Cassell v. Shellenberger, 514 A.2d 163 (Pa. 1986).
Several judges in the ABA survey stated that they often attempt to dissuade litigants from proceeding pro se.
One judge said, “I tell them they have the same right to represent themselves in court as I have to the handling of my personal plumbing problems, i.e., I don’t . . . they shouldn’t.” Another judge cautioned pro se litigants that “doing your own legal work is like doing your own mechanic work. Most of us could do it if we had the time and the patience. But you need to recognize that if it still doesn’t run, you have to look at who did the work.” Id.
More Leniency
Notwithstanding this sage judicial advice, the trend, particularly in discrimination cases, is for more plaintiffs to proceed on their own.
In McCormick v. City of Chicago, 230 F.3d 319 (7th Cir. 2000), the pro se plaintiff brought an action against the city, and alleged in part, that he suffered racial discrimination.
The 7th Circuit, in reversing a dismissal by the district court of the plaintiff’s municipal liability claims, stated: “It is the well settled law of this circuit that pro se complaints are to be liberally construed and not held to the stringent standards expected of pleadings drafted by lawyers.” Id. at 325.
In Weixel v. Board of Education of the City of New York, 287 F.3d 138 (2d Cir. 2002), the 2nd Circuit found that the plaintiff’s pro se complaint supported a claim under the Rehabilitation Act and the Americans with Disabilities Act, as well as a claim under the Individuals with Disabilities in Education Act.
In so holding, the court noted: “When considering motions to dismiss a pro se complaint such as this, ‘courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].'” Id. at 145-46 (internal quotations omitted). “This is especially true when dealing with pro se complaints alleging civil rights violations.” Id. at 146, citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).
In another recent case from the 2nd Circuit, the court stated, “[I]ndeed, this Court has repeatedly warned that ‘the pleading requirements in discrimination cases are very lenient, even de minimis.'” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).
The court said, in reversing the lower court’s dismissal of the plaintiff’s pro se discrimination claim, that the exception to the requirement of making the plaintiff state all discrimination claims at the EEOC level, i.e., allowing reasonably related unstated claims to be brought in the federal court, “is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he or she] is suffering.” Id. at 201.
Many pro se plaintiffs in discrimination cases have real issues, while others believe themselves to be “victims” who are now fighting yet another “system” that includes the courts and defense counsel, both of whom are seen as “insiders” who know all of the tricks of the trade.
Attempts by defense counsel to rationally contend with pro se plaintiffs can be frustrating and emotionally taxing. Many employers and in-house counsel see pro se plaintiffs as less of a legal threat, and have difficulty in understanding why defense counsel simply cannot “make this problem go away” without spending a great deal of billable time on the matter.
Defense Strategies
The first thing any defense counsel should do when he or she receives a pro se complaint is to let clients know from the beginning the difficulties involved with pro se litigants, including courts’ views on allowing pro se plaintiffs leniency and the need for the client and the defense counsel to take the moral “high road” throughout the case.
The very minute defense counsel is seen by the court, or worse yet a jury, as someone who is attempting to take advantage of a pro se plaintiff, the defendant’s credibility will be gone, and perhaps what was once a “defensible” case may be forever lost.
For example, if an incomprehensible pro se complaint is received, do not immediately file a motion to dismiss. It may be granted without prejudice, allowing the pro se plaintiff to refile the complaint. The client may be facing an angered judge, and the die will have been cast as to how the judge will view all subsequent defense pleadings.
An alternative is to file a motion for a more definite statement. By taking this tack, the defense counsel will be able to elicit assistance from the court in directing the pro se plaintiff to file a more cogent claim, and if one cannot be filed, the defense counsel will have a greater chance of obtaining a dismissal from the court.
Any time a defense motion is filed, the defense counsel should provide the pro se plaintiff with a copy of the appropriate civil rules of procedure regarding obligations to respond or object to the defense pleadings.
This approach serves two purposes. First, defense counsel will gain favor with the court. Defense counsel will not appear to be “tripping up” an unsuspecting pro se plaintiff. Second, the pro se plaintiff will have a more difficult time convincing a court that they were unaware of certain pleading requirements, because the defense counsel will have already provided them with a copy of the necessary rules.
This notion is particularly crucial when defense counsel files a motion for summary judgment. The court will be less tolerant of a pro se plaintiff’s pleading deficiencies if the plaintiff was made aware of the complexities involved in responding to a summary judgment motion. In fact, the pro se plaintiff will have been alerted that perhaps they should engage counsel at this point in their case, and failure to do so may not serve their best interests.
If the case enters the discovery phase, defense counsel should depose the pro se plaintiff before any defense witnesses are deposed. Defense counsel should provide the plaintiff with copies of the discovery rules at the deposition and explain the process and procedure regarding the taking of depositions.
All of this should be done on the record, so that if the plaintiff strays too far a field during their own deposition, or at a later deposition, the defense counsel can politely, yet tactfully, remind the pro se plaintiff that he or she was provided a copy of the governing discovery rules, and point out the consequences for violating those rules.
If sanctions are later deemed necessary, defense counsel will stand on higher ground with the court having gone the extra mile by providing the pro se plaintiff with a copy of the rules and from having explained to the plaintiff the consequences of violating the rules.
If the case is not dismissed via summary judgment, defense counsel should always request a pretrial conference with the court. That way the pro se plaintiff can hear from the judge, before everyone is in the courtroom, what evidence may or may not be addressed during the trial, and what the expectations will be of the pro se plaintiff’s behavior during the trial.
If the pro se plaintiff fails to make a jury request, defense counsel should think hard as to whether a jury trial should be requested. Will the pro se plaintiff gain momentum in the eyes of the jury, simply because they are acting on their own behalf? Will defense counsel automatically be seen as part of the “system,” regardless of the merits of the case? Or, will the plaintiff come across as an unreasonable “zealot” who is out to seek revenge against the defendant with an incoherent set of facts and unlikable witnesses?
If the case proceeds before a jury, defense counsel should limit objections to only those that are necessary for appeal. Sidebar conferences, while often necessary, should likewise be kept to a minimum.
Juries always dislike them, mostly because they think something important is being kept from them. In a pro se case, it may appear to the jury that the “system”- the court and the defense attorney – are acting in concert to keep the “real truth” from them.
When cross-examining the pro se plaintiff, defense counsel should keep the examination as brief and simple as possible. Be direct, courteous and concise.
Defense counsel will have to prepare defense witnesses so they respond politely and directly to tedious, often incomprehensible questions from the pro se plaintiff. If a defense witness loses his or her temper, or appears to be condescending to the pro se plaintiff, the jury will certainly find against any testimony given by the defense witness, even if the jury does not necessarily agree with the plaintiff’s view of the case.
During closing, defense counsel should acknowledge the pro se plaintiff and commend them on doing a fine job in court. Notwithstanding this recognition, defense counsel will be free to attack the facts of the case, as well as any witness testimony, and may do so without appearing that they are attacking the pro se plaintiff.
Defense counsel can point out that the pro se plaintiff had his or her day in court. At this point, defense counsel should be free to explain to the jury that as a matter of law the plaintiff’s case must fail and proceed to tell the jury why they must find for the defendant.
