In case you are unaware, or have simply not noticed, the downturn in the economy has caused an exponential rise in the number of pro se litigants at work in our court systems. Typically, you will find pro se litigants defending themselves in debt collection actions, mortgage foreclosures and breach of contract cases, among other things. Nonetheless, pro se litigants are even instituting lawsuits on their own seeking legal advice from friends as the case proceeds. For an experienced lawyer, or even for those lawyers recently admitted to the Bar, litigating against a person appearing pro se has special challenges for both counsel and the Court. This article will address some of those challenges and propose certain methods for addressing them.
1. Patience is a Virtue.
Pro se litigants, who operate without the benefit of any legal advice, do the darndest things. They file pleadings and other court papers which make no sense; they write in incomplete sentences; their pleadings are not properly captioned or divided appropriately into individual counts; they vent; they engage in diatribes and, often, they cross the line between what is acceptable to say in court papers and what is not. Seasoned lawyers often become extremely frustrated in response. Less experienced practitioners often just scratch their heads. What to do?
Unfortunately, there is no gatekeeper at the courthouse door turning pro se pleadings away and advising in the process a pro se individual to “give it some more thought.” Most often, a pro se litigant has no editor or filter who may caution against misguided hyperbole. Your role, as opposing counsel to a pro se litigant, is to understand that and maintain a thick skin. Pro se litigants often rail in their court pleadings against opposing parties and even opposing counsel. No matter what, do not respond in kind. The last thing you want the Court to think is that you are taking advantage of someone who has no legal representation or, even worse, descending to the level of someone who is not acting appropriately. Take the high road, take a deep breath and exercise patience and restraint when composing your response.
2. Take your Cues from the Judge.
Chances are that the Judge in your case sees a lot more pro se litigants than you do. There must be a certain art form for dealing with pro se litigants from the Bench since many Judges appear to exercise extreme patience during court appearances involving pro se litigants. The experienced jurist will attempt, in a nice way, to pull out from a pro se litigant essentially what the problem is – – e.g., whether it is an issue on the merits of the case, a discovery dispute or something else. Allow the Court to do this and remain uninvolved. After all, the Court is attempting to accomplish two distinct goals – – to afford a pro se litigant due process of law and determine the truth at the same time. Just because a litigant is pro se does not necessarily mean that his or her claim is not meritorious. The Court understands that and, as a result, many judges tend to bend over backwards to accommodate a party appearing pro se. When the Court is interacting with a pro se litigant is not the time to become uppity and defensive in an effort to exact your “pound of flesh” from a pro se litigant which might have maligned you or your client in court papers. Let the Judge run the show; he or she will get to the bottom of it even though the process might be time consuming. Again, patience is important.
3. Pro Se Litigants are Sometimes Governed by Different (Unwritten) Standards of Conduct.
You are subject to Rule 57.105 of the Florida Rules of Civil Procedure and Rule 11 of the Federal Rules of Civil Procedure. While, as a technical matter, a Pro Se Litigant is subject to the same requirements, it is not likely that a Court will impose sanctions against a litigant who is appearing without the benefit of counsel. This is not to suggest that a pro se litigant cannot be sanctioned; the point is that before sanctions are imposed the Court will likely have to witness multiple transgressions. Thus, filing sanctions motions against a pro se litigant is generally not a good idea unless you are able to document some level of repeated abuse.
4. Avoid a False Sense of Security.
Sometimes litigators judge the strength or weakness of their opponent’s case by the quality of opposing counsel. For some lawyers, litigators with well-heeled reputations in the community are feared while pro se litigants tend to be ridiculed or ignored. Understand that the trial court judge is likely to allow a pro se litigant substantial leeway in making motion arguments, examining witnesses and filing pleadings. Regardless of whether a pro se litigant adequately or accurately sets forth their substantive claims be forewarned that, notwithstanding a pro se party’s difficulty in expressing their position, you nevertheless are required to explain to the court, just like in any other case, why your client has a valid defense or a meritorious claim. In other words, you will still have to win your case. Pro se litigants beat lawyers all the time.
5. Sometimes Courts Relax the Rules for Pro Se Litigants.
The Rules of Civil Procedure that we live with are sometimes relaxed or ignored when a pro se litigant is before the Court. The thought process seems to be that we lawyers learn these rules in law school while the pro se litigant becomes conversant with those rules only after the passage of a substantial period of time or a warning from the Court during the actual case. Accordingly, do not relax when the pro se litigant misses a filing deadline or botches service. Courts tend to bend over backwards to give a pro se litigant a break.
6. Pro Se Answer.
You might laugh the first time you receive a “responsive pleading” from a pro se litigant which is in letter form and which states, in words or in substance, “I am not responsible for this debt and it is not my obligation.” Lawyers recognize that this is not a Motion to Dismiss or an Answer like we are used to seeing; nonetheless, the Florida Rules of Civil Procedure consider this to be a “paper” which serves the functional equivalent of an Answer. See, e.g., Mesones v. Jabbour, 639 So.2d 1000 (Fla. 4th DCA 1994) (defendants’ service of letter on plaintiff constituted paper within meaning of the Florida Rules of Civil Procedure); Bldg. Inspections Servs., Inc. of Dade v. Olemberg, 476 So.2d 774 (Fla. 3d DCA 1985) (letter filed by an officer of defendant corporation constituted “paper”); Motor Sport Eng’g, Inc. v. Car Point, Inc., 611 So.2d 15 (Fla. 3d DCA 1992). Accordingly, the likelihood is that you will not be able to default a pro se litigant who has served and filed such a letter. You may have to compel the pro se litigant to amplify or explain their pleadings or, alternatively, you may need discovery in order to understand the basis for their defense. Nonetheless, it would be a mistake to either ignore this or file a Motion for Default since such a motion will likely not be granted.
Pro se litigants require special care by opposing counsel and the Court. Courts and opposing counsel would be well advised to do their best to understand what the pro se litigant’s claims or defenses really are despite the inartful way in which such claims might have been phrased. Remember that it is likely that the trial court will seek to uncover the basis for a pro se litigant’s position regardless of how muddled it might seem to you. In sum, when dealing with pro se litigants: take a deep breath, take your cues from the Judge, understand the opposing party’s case and treat it with the seriousness of any other matter that you have handled.