All civil litigators, at some point in their career, end up opposed to a self-represented individual. The odds of this occurring are ever increasing as the number of self-represented parties in civil matters continues to rise. Some New England states have seen year-to-year increases of pro se litigants in civil cases as high as 15%. Other studies estimate that as many as 50% of civil litigants are self-represented. Despite the efforts of bar associations, the bench, and social justice initiatives to increase access to counsel, self-represented litigants remain ubiquitous.
Dealing with self-represented litigants and navigating the interactions with these parties throughout the stages of litigation creates challenges not present when all parties are represented by competent counsel. Understanding the unique dynamic and appreciating the differences are critical to representing the best interests of your client, observing your ethical obligations, and ensuring equal access to justice. Here are several things to keep in mind when handling a matter against a self-represented party.
- Determine whether you’re adverse to a “serial” pro se party. Although there are several common reasons why parties end up representing themselves, every self-represented party is not equal. For some, this may be their first and only time representing themselves. They may be nervous, hapless, and doing their best to navigate the rules in a completely foreign setting. For others, litigating cases on their own behalf may be something of a hobby. Representing a client against the latter – a “serial” self-represented party – requires an added degree of caution. For better or worse, these pro se litigants tend to be more aggressive, may try to twist the law and the rules to their advantage, and rarely extend the courtesies typically extended between counsel. In short, be prepared for a “professional” pro se litigant to make everything a battle, to make threats and baseless allegations and to engage in sharp practice.
- Be endlessly courteous to the self-represented party. Although your client is adverse to the self-represented party, you are not. Remember that you are the professional and act professionally, even when (especially when) you are dealing with a scared/frustrated/angry/revengeful opposing party. Whether it is on the telephone, in writing, or in person, you must remember that you are not only representing your client, but you are also an officer of the court and are representing your profession. Be courteous, professional, and polite and always take the high road.
- Scrupulously heed the Rules of Professional Conduct and do not engage in anything that might be considered cunning or tricky. While zealous advocacy for your client is required, be careful when trying to outsmart, outwit, or out-lawyer a self-represented party. You do not want to create even the appearance that you are taking advantage of a self-represented party’s naiveite or inexperience. You are a member of the Bar, you are an officer of the court, you are a professional and held to the highest standards; act like it.
- Document all communications in writing. Whether to avoid confusion or to insure against selective recollections (or worse), make sure you memorialize your communications. Follow up telephone calls with confirmatory emails. Keep your written communications clear, free of legalese and, of course, courteous.
- Avoid giving legal advice to the self-represented party. In an effort to be courteous, move the case along, or correct a misperception of the pro se party, it may be tempting to try to educate them on the law or rules. Don’t. You can point them to the rules, cite statutes and case law, and advocate for your client, but you cannot and should not give self-represented parties legal advice. Even when they ask for legal advice, your response should effectively be: “I can’t tell you what to do or give you legal advice. You should check the rules, call the clerk’s office, or talk to a lawyer.”
- Prepare your client for potential delay and increased expense of a dispute with a self-represented party. Issues that are typically agreed upon or negotiated between opposing lawyers may become contentious and require motion practice with self-represented parties. Moreover, courts may (rightly) be more flexible and understanding with self-represented parties when it comes to deadlines and adherence to the rules. You need to be patient and you need to prepare your client to be patient.
- Ascertain whether early mediation is possible. Mediation of civil disputes has a very high settlement success rate. This is no different in cases with self-represented parties. Early mediation of disputes may avoid the costly, time-consuming, and sometimes contentious discovery phase while providing the “day in court” self-represented parties often seek. Suggesting a retired judge as a mediator may help convince the self-represented litigant to mediate and could provide the gravitas needed to consummate a settlement.
- Do not expect a good battle to be followed by a handshake. Whether it is following a hearing, mediation, or trial, remember that self-represented parties have a motivation and animation that is not like lawyers. This is personal for them. Pro se litigants are not like members of the Bar who are professionals that can argue, disagree, and fight and still be cordial and even friendly.
Trial practice requires trained individuals to advocate zealously for opposite results in an adversarial setting; it is a unique profession. Self-represented litigants are thrust into this world (or elect to keep coming back) creating a very different dynamic for lawyers. Being aware of this dynamic and following the aforementioned tips can help lawyers zealously represent their client’s interests while ensuring that the legal system treats all self-represented litigants fairly and respectfully.
Michael J. Lambert is the Chair of the Litigation Department at Sheehan Phinney.