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Litigating with Pro Se Parties

Litigating with Pro Se Parties

March 08, 2021 Melissa Tulis Smith

Established case law tells us that pro se litigants are held to the same standard as represented parties, but that is not always the case in a judge’s eyes and should not always be the case from a practical standpoint. Pro se parties should be treated with the same respect we extend to colleagues and adversary attorneys, but with more patience and a lot more caution.

First and foremost, create clear boundaries that you do not represent the pro se party. Be direct and repetitive about this. When a pro se party asks a question that calls for legal advice, instead of simply stating you cannot give legal advice, state why. A request for legal advice is an opportunity to politely remind the pro se party that you do not represent them, your role, and what party you represent. Further, the only legal advice you can give is suggesting an unrepresented party speak with an attorney. Suggesting an unrepresented party seek counsel may be met with frustration from a party who cannot afford to hire representation, but it reminds a party of their right to obtain counsel and further reinforces that you are not that party’s counsel.

Without giving legal advice, be transparent in your answers to a pro se party’s questions. There is no need to hide the ball. To a limited extent, we can tell pro se parties what to expect in our course of action without advising them how they should proceed. For example, if a party asks what will happen at an upcoming hearing, we can respond with our client’s intentions for the hearing, e.g., that we will seek a continuance, a judgment, or dismissal of that party’s claims, whatever the case may be.

Do not argue the law with a pro se party. If an unrepresented party raises a legal issue, particularly in telephone or real-time correspondence, avoid arguing with them about it. Their position may be a clear misunderstanding of the law, but debating the issue or explaining why you disagree with their position comes too close to legal advice. It is safer to state you disagree with their position and recommend they consult an attorney. For example, if a pro se party calls to dispute proper service, it is safer to respond that your records show proper service or that your position is that service was perfected. If you explain the law’s intricacies on the perfection of service of process in an attempt to show the pro se party they are wrong, you may inadvertently be giving legal advice. Continuing with this hypothetical, your explanation on proper service may be an excellent cliff notes version for a student in 1L Civil Procedure, but it does not consider all relevant facts this unrepresented party may not be telling you. This could lead the pro se party to fail to allege improper service in her answer, thereby prejudicing her ability to dispute service later even if she had a valid argument.

Finally (and second only to not giving legal advice), be kind. Pro se parties are often defendants being thrust into the unfamiliar legal arena for the first time. For the attorney, this is business, but for a pro se party, this is personal. Be understanding of heightened emotions. This can be a very confusing and stressful time for pro se parties. Do not misinterpret an aggressive defense from a pro se party as over-litigiousness; there is a well-earned culture in our country of mistrusting attorneys and the legal system. Pro se parties often fear they’ll be taken advantage of or lose their rights if they don’t fight you at every step. This can understandably create roadblocks, delays, and frustration for an attorney, but the attorney would be well-advised to remain kind, patient, and understanding.

Our legal system can be challenging for pro se parties to navigate, and we should understand that barrier to accessibility. We can zealously represent our clients while striving not to be an additional barrier to accessibility ourselves.

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