Opposing the Pro Se Party


Pro se parties increasingly populate the litigation landscape. Some observers
estimatepro ses sign 40% of federal court filings, principally in the criminal,
employment, civil rights, and debtor/creditor areas. In state court, as many as 60% of the
marital filings may include a pro se party. In this “self-help” era, especially with the
resources available on the Internet, expect the trend to continue.
Opposing a pro se party poses its own challenges. Non-lawyers are generally
unaware of or feel unrestricted by the ethical rules that constrain an attorney’s behavior;
they lack familiarity with the terminology of our common law system, and frequently do
not possess a rule book; they are suspicious of the civility and professional courtesy that
lawyers extend to each other; and there is a frustrating sense that the courts accommodate
them in instances where a lawyer would get hammered.
Some of this is imagined; some of it real, if unacknowledged by the court system.
In recognition of this fact, and the projected increase in numbers of pro se parties, we
suggest the following tips when dealing with such adversaries.
1. Educate your client. Let your client know that the process may bog
down from your adversary’s poorly articulated pleadings,
incomprehensible motions, and multiplicative filings. The cost of the
litigation may also significantly increase. Like playing tennis with a lousy
opponent, the game is about to get ugly.
2. Document everything. Lawyers have offices, assistants, voice mail,
filing. Non-lawyers typically do not. They also lack familiarity with the
process. Track your contact with them: the discussions, the promises.
You may need proof of it later.
3. Be patient. One common attribute of these matters is the emotional
investment in them by your adversary. This can lead to hard positions
being taken, and words spoken in anger. Avoid responding in kind, for
you will regret the way the court views you. Hardball tactics may likewise
backfire, if they lead to unreasonable reactions. Bear in mind, also, that
most courts will tolerate actions and inactions from a non-lawyer they
would not from you. Learn to expect it and you won’t be disappointed.
4. Don’t rely on the courts to clean up their pleadings. Courts will
liberally construe initial pleadings by pro se litigants, in order to provide
constitutionally guaranteed access to the judicial system. Don’t
automatically file a 12(b)(6) motion to dismiss a garbled pleading in
federal court, because even if successful, the court will invite the pro se
party to re-plead their cause, without prejudice. Rather, file a 12(e)
motion for more definite statement to get a clear shot at a dismissal. (In
state court, try a motion for specifications under Rules 23 and 29.)
5. Set up your knock out punch against a pro se litigant by first
providing them the applicable rule. If you intend to file a motion for
summary judgment, provide them a copy of RSA 491:8-a. If you think
they have violated a state or federal rule, inform them of the rule. Do it in
writing. Then, when they try to plead ignorance, you can show the court
they had the information available to them. For similar reasons, if
deposing a non-represented party, send a copy of the relevant discovery
rules in advance of the event.
6. Watch for security and confidentiality breaches. Many non-lawyers
are far more facile with a computer then they are with the rules of court.
Learn the definition of meta-data and manage your risks. Warn your staff
that the rules of confidentiality and loyalty have not changed, and to be
scrupulous in their communication with the non-lawyer.
7. Mediate early. Mediation provides an opportunity to talk openly about
the value of a case, with a disinterested participant helping to modulate the
tenor of the dialogue. Also, you may find that providing a forum for the
party to express concerns, frustrations, or grievances may be enough to
dispose of the matter altogether.
8. Avoid under-estimating the ability and education of non-lawyer
parties. Some non-lawyers spend more time reading rules and cases than
full-time litigators. (State prison inmates come to mind.) The Internet
also is a great leveler: volumes of information are available to those with
a motivation to seek it out. Do not relax just because no lawyer appears
for your opponent.
9. Invoke protection when necessary. Courts retain the power and
privilege to protect the process, and the public, from the over-zealous,
unrestrained participant. Documented abuse in your case, or multiple
cases of vexatious activities, can be controlled. See, for example, R.S.A.
507:153
10. What if you suspect a lawyer is helping behind the scenes? Is someone
ghost-writing for them, or have they just mined a particularly rich vein of
Internet forms? The Supreme Court’s recent “unbundling” rules (see,
Order, March 21, 2006) require disclosure of the work product of a
lawyer. Also, remind the supposedly unrepresented litigant that you
cannot talk to them if they are represented, which may flush out the
reluctant attorney.
Conclusion: Be Wary, not Weary. Unrepresented litigants frequently introduce
a new level of craziness to the litigation process. They can increase the cost, frustrate
your client, and raise your blood pressure. Consider following these tips to avoid some
of the foreseeable problems.
Attorneys William C. Saturley and John C. Kissinger practice in the Professional
P.C. in Manchester..

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