Melissa Tulis Smith: 00:29
Hello and welcome to the podcast series Creditors Corner Legal Talk, presented by Smith Debnum Attorneys at Law, where we explore a range of legal topics impacting businesses and private individuals. So be sure to hit subscribe so you never miss an episode. My name is Melissa Tulas-Smith, and I’m an attorney in the firm’s Creditors’ Rights section. I will be your moderator today. Today’s topic is challenges and strategies for dealing with pro se litigants, and we’ll hear from two attorneys from different practice areas on their experiences litigating with pro se parties, their war stories, and the tips that they’ve learned along the way. Before we begin, I want to note the information provided in this podcast does not and is not intended to constitute legal advice. Instead, any and all information shared is for general informational purposes only. Listeners should contact their attorney to obtain advice with respect to any particular legal matter. Now, with that out of the way, let’s turn our attention to this week’s topic. With us today are Emily Murphy and Rachel Rogers. Emily is an attorney in the firm’s family law section.
Emily Murphy: 01:43
Hi, how are you?
Melissa Tulis Smith: 01:45
I’m doing great. Thank you for being here today. Rachel is an attorney in the firm’s creditors’ rights section.
Rachel Rogers: 01:52
Hello, how are you guys?
Melissa Tulis Smith: 01:54
Doing well. Thank you. Thank you for being here. All right, I’m gonna go ahead and kick it off with some questions. So, what are some of the biggest misconceptions that attorneys or maybe even the general public have about litigating against pro se parties?
Rachel Rogers: 02:11
I’ll jump us off on this one, Melissa. And just in case anyone’s listening who is not an attorney and isn’t familiar with the term pro se litigant, we’re just talking about people who are in court and they do not hire an attorney, someone that’s not trained to be an attorney. If someone is representing themselves, that’s what a pro se litigant is. So that’s what we’re referring to today when we’re discussing this. But I think one of the biggest misconceptions is that attorneys believe that a matter will be easier if opposing party is pro se. Um, I know personally I always prefer if there is an attorney on the other side because it kind of eliminates some of those particular difficulties with pro se um litigants.
Emily Murphy: 02:59
Yeah, I definitely agree with Rachel. In our practice area, we encounter a lot of pro se litigants just due to the nature of our work in family law. And so I definitely share the same sentiment. I would much rather there be an attorney on the other side of my cases. They’ve done it before. It’s not their first rodeo. They know the dates and the deadlines and the local rules. And it can be actually more challenging at times to have a pro se litigant on the other side of our cases just because of how deadline-intensive and document-intensive some of our cases can be.
Melissa Tulis Smith: 03:36
Very interesting.
Melissa Tulis Smith: 03:37
So that kind of flies in the face of some parties who think that it’s going to be more threatening to us when they say, I’m going to go hire an attorney. You’ll hear from my attorney. A lot of times it sounds like that’s what we we would rather hear than hearing from them themselves.
Emily Murphy: 03:54
Definitely. I think in my line of work, if somebody threatens to hire a lawyer, I’m like, yes, please. Can’t wait to hear from them.
Melissa Tulis Smith: 04:01
So for attorneys who might be listening who are new to litigation, uh new to practicing law, what it what would you say is the first thing they should understand about handling a case with a self-represented litigant?
Rachel Rogers: 04:15
Emily sort of touched on this, but I think it’s important to think about what context you’re in and what section you’re practicing in. For us in creditors’ rights, the FDCPA, the Fair Debt Collection Practices Act, really adds another layer of restrictions and parameters when it comes to communicating with a consumer directly. And in this situation, these consumers, if they’re self-represented, those regulations can hinder and prohibit some things that we would normally do with an opposing counsel. So I think that’s one of the first steps when you, you know, you have a pro se litigant, you just get your bearings about you in regards to what you can and cannot do in terms of communication.
Emily Murphy: 04:59
I think the same kind of sentiment applies in the practice of family law, maybe not as strict of rules as the FDCPA, but I am very careful about communicating with the pro state litigant. I always try to make sure on the front end um to issue that disclaimer, hey, happy to talk to you if you’re not represented. But if you have a lawyer, send this communication to your lawyer and have them reach out to me. If you’re not represented, fine, I’m happy to talk to you. But I always make sure that the pro state litigant knows that I don’t represent them. I can’t help them make any legal decisions because I’m representing the opposing party’s interests. So it’s definitely really important to be careful about uh setting that boundary early on and making sure that they know that I can’t give them legal advice.
Melissa Tulis Smith: 05:52
Let’s turn to your case strategy as litigators. Um, early on, when you realize that the opposing party is going to be proceeding without representation, does that change your litigation strategy at all from the outset?
Emily Murphy: 06:08
I think for me, I don’t know that it necessarily changes my litigation strategy, but like I just said a minute ago, it’s very important to set the boundary early on with the pro se party that you can’t give them legal advice. And I think that early on in my cases, I kind of gear up to spend more time dealing with um procedural things that I wouldn’t normally have to deal with if there’s an opposing counsel on the other side of the case. I mentioned a few moments ago the example of voluntary financial disclosures and things like that. And that is something that is mandatory in our local rules of court in Wade County. I um, in my cases with lawyers on the other side, everyone just says, hey, let’s exchange our documents on March 15th. But oftentimes you get into a fight over that with a pro se litigant. And so I plan ahead just to make sure that I’ve built in enough time in my trial prep to deal with issues that pop up when the person on the other side of the case isn’t familiar with the procedure or the things that attorneys usually are familiar with.
Rachel Rogers: 07:20
Yeah, I would echo, I don’t think it necessarily changes my strategy. I just kind of, you know, pinpointed in my head, this one I might have to touch a little bit more, or there may be more paper flowing back and forth, but it doesn’t necessarily change my litigation strategy.
Melissa Tulis Smith: 07:37
Good to know. And it sounds like you both gave good examples of taking steps only in the case to kind of establish those clear boundaries about communication and representation. How would you either of you say you balance being professional and respectful while ensuring that you don’t cross that line into giving legal advice to the opposing party?
Rachel Rogers: 08:03
This is actually a really fine line that before getting into this um area of law, I didn’t really have to encounter as much. And I’m sure it’s the same with family law. I often find myself in a courthouse, you know, or in the hallway of a courthouse talking to a defendant, um, an appro say litigant at that matter, who just has basic questions about the legal process. Because if you’re not an attorney or not familiar with the legal process, the jargon, the words, it’s really a foreign language. It’s hard to grasp what’s actually taking place. Over the years of doing this, I found myself being able to be in the hallway and explain to them, I do not represent you and I can’t give you legal advice, but I’ll help you, I’ll try to help you understand just the basic process. Like this is what a complaint is, this is what a writ of execution is, this is what a judgment is. It’s a piece of paper that says you owe money. And oftentimes during those conversations, I do have to say, Well, I can’t give you legal advice. Maybe you should talk to an attorney if you have additional questions about what that means for you. But in general, this is what that is. I do think it goes a long way with pro se litigants when you do have that conversation with them instead of just stonewalling them and saying, I don’t represent you, I can’t give you advice, I don’t represent you. Even just allowing them or helping them understand a little bit about the process, I think eases some of their anxiety and helps in the long run when dealing with those pro se litigants. But it’s really, it’s a balancing act and a fine line for sure.
Emily Murphy: 09:43
Yeah, I agree with Rachel. It definitely is a fine line to be riding. I think that in my area of practice, especially, it’s really good, though, to be able to learn that skill and learn how to talk to an opposing party without crossing that line, especially in Wake County. Our family court calendars are jam-packed. And oftentimes, you know, we have clients that have cases that get continued two, three, four times. If I am able to talk to a pro se party without, you know, crossing into that territory, it might go a long way in getting a case settled or in getting a case resolved. I think that that’s something that comes with time, learning what is acceptable and what is crossing the line. So I think early on in my practice, I know that I erred on the side of caution and tried to maybe stay away from talking to pro-saint litigants as much. But now that I know, okay, there’s a difference between saying, hey, when the judge comes into the courtroom, you ought to stand up, versus saying, here’s what you should do in this case. So I think a lot of that comes with time, but I I definitely agree with Rachel. It goes a really long way in being professional and respectful when you’re talking to pro-saint litigants because it usually helps advance both parties’ interests, if you can do that.
Melissa Tulis Smith: 11:10
Yeah, I think that’s a great point of advancing both parties’ interests, like helping without giving legal advice the pro-say lineigant isn’t necessarily bad for your own client, particularly when it helps speed things along. So on that note, let’s turn to uh courtroom dynamics with pro se parties. Uh, in both of your experiences, how do courts and judges tend to treat pro say litigants? You see leeway? Um, do they cut in some slack, or how does it work?
Rachel Rogers: 11:41
I’m gonna give the typical lawyer answer with it depends on what judge you’re in front of. In collection cases that we have, it truly depends on what judge you’re in front of. Also, honestly, what day of the week it is. Sometimes uh we will get in front of a judge and they stick to the law that says that a pro se litigant is held to the same standard as an attorney and there’s no leeway given. It’s just vary by the books. And then other times you’ll be in front of a judge who gives a lot more leeway. For example, I was in front of um a judge yesterday morning, and she was the type that gave a lot of leeway, which sometimes it can be a problem, but most of the time, again, it’s a chance for us to have conversations with the pro se litigant, and this judge wanted to facilitate that conversation, and maybe she tiptoed along the lines of, you know, is she advising um the pro se litigant of what they should do? But however, she did help facilitate and gave a lot of leeway on what to do next and even continued the case to allow the time the party time to, you know, attempt to do what they should have done before. So it really does just depend on what judge you’re in front of, usually.
Rachel Rogers: 13:02
I think that family court is similar, but I think that it depends on what type of claim is being heard. I think our subject matter is just so different from yours that oftentimes it’s really easy for our judges to give pro se parties a lot of leeway. So I think in recent months I have seen a lot of judges, at least where I practice, giving leeway to pro se parties just due to the nature of our work. I mean, getting sued over the custody of your child is a little bit different than getting sued over a debt. And so I think that it’s not necessarily a bad thing for our district court judges to be giving some leeway to these pro se folks when the stakes are high like that.
Rachel Rogers: 13:46
Yeah, that makes so much sense because it’s not as black as black and white as with a credit card debt or a loan or anything like that. And there, like you said, there’s a lot more at stake in those issues. So I do think it’s probably for the best that some judges give leeway to pro se litigants in those situations when, you know, it’s high, high stakes. Definitely.
Melissa Tulis Smith: 14:07
In the courtroom, how would you say that uh going against a pro se litigant affects your advocacy, your approach to those courtroom dynamics?
Rachel Rogers: 14:19
I think this is funny because earlier we both said that it having a pro se litigant doesn’t change our litigation strategy overall. But I think that a pro se litigant completely changes the way I orally advocate for my client in front of a judge. I really take a completely different approach and I’m a lot easier with my wording. And again, I talked about legal jargon earlier, but I try to stray away from using legal jargon when I’m arguing in front of a judge with a pro se litigant so that, again, they can understand what’s going on and they don’t feel like they’re trying to be tricked or confused. And it’s even though it’s, you know, a credit card debt, I do try to show a lot of empathy and sympathy in the way that I speak because most oftentimes these pro se litigants are not happy to be there. They’re often embarrassed, and you know, life, life happens and they get in these situations. So I never want to come across as too crass or showing that our clients don’t care about those situations. So I do take a completely different tone. Um, and again, I always try to talk to them before or afterwards to just kind of ease their minds and um again make sure that they know that on behalf of my client, we understand the circumstances and just, you know, are not trying to be rude.
Emily Murphy: 15:40
Yeah, I agree with Rachel. It definitely does change my approach in court when I am going against a pro se litigant. You just can’t argue against a pro se litigant in the same way that you can argue against a party that’s represented by counsel. You have to take a more measured approach because everybody in the room can see that it’s not an even playing field, right? I have a specialized set of knowledge that a pro se litigant just doesn’t have. And oftentimes I find that taking a more measured approach, using more um layman terms language, being a little bit more empathetic and patient with the pro se litigant, oftentimes um leads to a better outcome for my clients just by way of maybe earning goodwill with the judge, right? It’s not a good look for my client when I go into court and I argue till I’m red in the face and I’m slamming my fist on counsel’s table when the person on the other side of the room doesn’t have a lawyer. I don’t think that that’s a good look. And so I think that it’s helpful to everybody to take a little bit more of a less aggressive approach when you have a pro se litigant.
Melissa Tulis Smith: 16:53
So have either of you ever had a case where a pro se party’s unfamiliarity with the rules significantly affected the litigation process, either by slowing things down or creating unexpected issues?
Rachel Rogers: 17:09
Yeah, I actually was just talking in a meeting, we were discussing this issue. A lot of what we see with pro se litigants is a slowing down of the matter just based on the sheer amount of paper that is filed. They don’t always understand the rules and the law, and so they just file motion after motion, and honestly, sometimes not even motions, they’re just filing stuff. And although we we receive it and we read it and we understand there’s probably no merit to it, we’re just like, oh, don’t worry about that. It still has to be addressed procedurally with the court, and so that in and of itself slows things down. We can’t just jump to filing the motions that we see fit. We still have to address and be heard on all of the other things that have been filed. That’s what I believe I see the most of is slowing things down in that way, of just having to address all the filings and paperwork that they push on you.
Emily Murphy: 18:11
Well, we encounter that a lot in family court as well, especially with the advent of um generative AI. We have a lot of folks who are using things like Chat GPT to create motions that they then file with the court. And with e-filing, it’s really easy for pro se litigants to draft and file these motions that might not make any sense to us. And so we definitely see that in family court. The bigger thing though that I think happens more frequently is what I’ve been touching on all afternoon, and it’s the local rules of court that we have and the discovery deadlines that we have in family court and just that procedural stuff that family lawyers are experienced with and know how to deal with, um, but pro se litigants do not. And it seems, you know, perhaps to somebody that’s not been in family court before, a little bit counterintuitive to have to voluntarily provide your financial information, for example, to somebody who’s trying to get you to pay child support, right? Like objectively, from a pro se litigants perspective, they’re like, why am I going to give you this? You’re just going to use it against me. And so a lot of times we get pushback on things like that. And that causes delays frequently for our clients because without having the things that we need, without having the financial documents and financial affidavits, it’s really hard for us to move forward on some of these financial claims. So a lot of times we have to push out hearings on the merits so that we can resolve the discovery issues because these pro se litigants don’t know how the local rules work. So that’s a challenge that we encounter all the time.
Rachel Rogers: 19:56
Emily, I’m so glad you mentioned um AI. The online lawyer, that as we like to call it, has created such an issue. But I oftentimes remind myself that it really is beneficial to an extent to a pro-se litigant. The resources that they have in order to represent themselves are so much more accessible now than they previously were, with you know, having to find a a library or a law library at that and find these rules. It’s at their fingertips. So I always remember that it is a positive in some ways for those pro seulitigants, but of course, we all know the downside to generative AI and that it’s not always correct. And it gives them more information that they need that then, you know, causes more issues down the road. So it really is, you know, a two-edged sword on that. Um, but I’m really glad you mentioned that because I think that has definitely contributed to the increase of pro se litigants that we see and that they feel like they have the tools to represent themselves more so than we’ve seen in the past before AI was as tangible as it is now.
Melissa Tulis Smith: 21:15
Yeah, that’s that’s a really good point. I think that pro salitigants, it sounds like, have a lot more tools at their disposal now than they ever did, but there’s still that lack of understanding of how to use those tools. And sometimes tools that you don’t know how to use and you use incorrectly can actually be harmful. I mean, one example I can think of is jurisdictional differences in our practice area, Rachel, where you might ask AI some question about the consequences of a judgment, and you didn’t say specifically, I’m in North Carolina, and AI comes back and says, Hey, they can garnish your paycheck for a credit card judgment, which is not the case in North Carolina. And that would be a completely unnecessary worry and concern that would be put into that condition. Consumers head through AI simply because the question was not specific enough in the way that an attorney or a live person would know to um to uh narrow it down.
Emily Murphy: 22:12
Yeah, I’ve I’ve encountered a very similar issue in family court, actually, that I can think of. One time recently, there was a pro se litigant asking for a specific type of injunction called a Mareva order. And I was like, a Mareva order? What even is that? And uh I had to Google it, and turns out that it is a type of injunctive relief you can get in other countries and did not apply to our jurisdiction. But things like that can be challenging. But bringing it back to Rachel’s point, I do think it’s a net positive for pro se litigants to have access to software like Chat GPT or Claude or whatever they’re using to help them get access to the courts. It can be really hard for pro se litigants to break in, I guess, to the courtroom and to be able to articulate what they’re trying to argue. And so even if it’s not spot on 100% of the time, I think it’s still a net positive to help them figure out what they’re saying to the court, get their position across to the court in a way that seems to help level the playing field a little bit.
Melissa Tulis Smith: 23:24
Very true, very good points. Now, I want to get in a little into the fun stuff, the war stories that I’m sure both of you have from litigating with pro se parties, and without naming names, of course, for confidentiality purposes. Do either of you have a memorable story about litigating against a pro se party?
Emily Murphy: 23:44
I can think of one off the top of my head recently. I had a pro se litigant that I was up against on uh a financial claim, and I was just trying so hard to make it work with this individual, communicating frequently and often, doing the best I could to explain to him what was going on without, you know, crossing the line into legal advice and working, you know, really hard to come to a settlement with this individual. Unfortunately, we were not able to get on the same page. And I wish we could have. I wish there was something that could have happened differently because ultimately we went and had a hearing and it turned out worse for this individual than had we just settled the case then and there. So that’s the one that I can think of off the top of my head. And then of course, you know, you get the folks who roll up into calendar call and I’m in there asking for a continuance on, you know, a claim for content that we have against this person and they’re objecting to a motion to continue. And I’m like, hey man, I don’t think you want to do that. But you know, you can’t obviously say that to them. So I think that there’s some some funny stuff. It’s definitely interesting.
Rachel Rogers: 25:01
Yeah, Melissa, you probably would agree that we on these consumer collection accounts, majority of the time, the interactions are cordial. We’re able to come to a resolution. I would say like 95% of the time, we are able to come to a resolution. Everyone is at peace with it, but there are always the people who are more passionate, we’ll say passionate about their stance and their situation. And oftentimes it can get hot pretty quickly. Again, it’s not like Emily and the stakes are that high and that it’s over, you know, custody or anything like that, but people do get passionate. I mean, it’s their money. And when times are tight, you you know, you don’t want anyone to touch your money. There have been a handful of times where I have had to get escorted to my car by a bailiff because of how I rate the pro se litigant got. And I think at the beginning when I started this practice, that like really it kind of shook me. I was like, you know, when I envision being a lawyer, this is not really what I envisioned seeing. But I’ve learned that to always just be really cordial. And it’s actually best if that interaction does happen in a courtroom. It allows the judge to see what’s going on. You have witnesses, you have the bailiff or the sheriff there to make sure that you get to your car safely. And again, I have found in those situations it’s best to just not say anything if you start engaging in a back and forth, and that’s when things can go south really quickly. Pro se litigants often have a hard time distinguishing the attorney from the plaintiff. So I often will say, you know, I am just here representing my client. It’s not me personally taking this action against you, but in their minds, it’s all the same. And I totally understand that. So that’s where we uh sometimes get stuck in that hard place where we’re getting the blame of things. And sometimes that ends up with us being sued. I know that I’ve been personally sued once or twice, as I know Melissa has too. So the key, I always remind myself to just stay cordial, stay calm, no matter how hot inside I am. Never let the judge see you angry, and always just remember that as Emily said, the playing field is not even, and we do have a leg up. So to just let it let it be and let it lie.
Melissa Tulis Smith: 27:27
So in closing, um, what is the single most important takeaway you would give attorneys to remember when they’re litigating against pro se individuals?
Emily Murphy: 27:40
Well, I have two things, even though I know you asked for one. Um, I think that the the number one most important thing is just to make sure that those boundaries are clear. Make sure that the pro se litigate knows who you represent, that you can’t give them advice. Make sure they know that early on. Make sure you remind them that frequently. And the second piece of advice that I’ll give is make sure that you keep a good record of these things. I don’t know if we’ve touched on this yet, but I like to try to have most, if not all, of my communication with pro se litigants in writing. I think that um, while I am lucky to not have been sued like Melissa and Rachel, in the event that that is going to happen, it’s really helpful to have a record of the communications that have taken place, of you reminding them of what your role is, of you, you know, following up and upholding your end of the deal, keeping up with timelines and communicating frequently so that you can avoid any issues down the line. So I think, you know, in some, the two most important takeaways are keeping your boundaries clear and just um keeping a good record of your communications with the pro se litigants so that you can avoid any issues down the line.
Rachel Rogers: 29:00
I’ll add a third is um to maintain professionalism. I think that we’ve kind of talked about that all throughout the conversation today, but just keep it professional and remember that you’re representing a client and do the best you can. Fantastic.
Melissa Tulis Smith: 29:16
Well, Rachel and Emily, I want to thank you both so much for participating in today’s podcast. I want to thank our wonderful audience for tuning in. I’ll invite our listeners who may have any questions to email or contact our speakers and also inform our listeners to check out our other episodes. And lastly, I’ll remind everyone to please subscribe so that you never miss an episode. Thanks all and stay well.
