Don’t Play the Fool: Litigation with a Pro Se Party
“He who represents himself has a fool for a client,” is a quote which Abraham Lincoln is often credited. Growing up in Mr. Lincoln’s hometown of Springfield, Illinois, you could count on an annual elementary school field trip to one of the many Lincoln historical sites, including his home, law offices, and even the Lincoln Tomb. Despite these many visits, I never heard the origin story of this quote. But if I had to guess, President Lincoln shared a similar experience many of us have encountered in our legal careers – the pro se litigant.
The reasons why someone may choose not to hire a lawyer vary widely – from the expense alone to the belief they are best-positioned to plead their case. As lawyers, we know the dangers of self-representation, as well as the headache it can be to litigate with an unrepresented party. Regardless of the merits of the pro se party’s case or the incessant leniency being shown to them by the judge, always take the high road to protect yourself and your client. And, take care that you aren’t the fool in the case by following these tips:
- Effectuate Good Service – Although pro se litigants are required to comply with the Federal Rules of Civil Procedure (along with the state and local rules) just like parties represented by counsel, you may find that the judge will be somewhat lenient in this first step of the litigation process. So, rather than arguing over the validity of the signature on your certified mail, personally serve the self-represented party and have the process server’s affidavit ready to produce in court if service is contested.
- Follow The Rules – Make sure you follow the court rules to the letter. Courts may allow pro se litigants more leeway in following court rules, but that flexibility and courtesy will most likely not be extended to a person with a law degree. So, leave no room for their argument that you were not in full compliance.
- Document Everything – As the saying goes, “If it’s not in writing, it didn’t happen.” While this is hopefully already a hallmark of your practice, confirm any phone conversations in writing. Or better yet, only communicate with the pro se party via e-mails and letters. Keep your correspondence concise and avoid using confusing legalese so your words are not misconstrued or misinterpreted.
While dealing with a pro se litigant can be frustrating, you must also be mindful of potential ethical issues, namely, the potential for confusion about who you represent. ABA Model Rule 4.3 governs dealing with a self-represented person. Specifically, it provides that when communicating with an unrepresented person on behalf of your client, a lawyer is prohibited from stating or implying that the lawyer is disinterested. In other words, to avoid any misunderstanding, you must identify your client and explain that their interests are opposed to those of the unrepresented person. Further, if you know (or reasonably should know) the pro se litigant misunderstands your role, you must make reasonable efforts to correct that misunderstanding. In communicating with a self-represented party, avoid providing legal advice and inadvertently creating an attorney-client relationship. When answering what may appear to be innocuous questions, be sure to reiterate (in writing) who you represent and that you are not providing any legal advice to the pro se party.
If you have encountered a pro se litigant in your practice, you can understand the challenges and risks. And, as you likely experienced, Honest Abe couldn’t have said it better.
Free Attorney Malpractice Insurance Quote
This document should not be construed as legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions. Attorney Protective is a MedPro Group/Berkshire Hathaway company that protects the reputations and assets of attorneys across the nation. “Attorney Protective” and “AttPro” are also used as marketing names used to refer to the attorney professional liability programs administered by Attorney Protective or its affiliates and underwritten by National Liability & Fire Insurance Company, AttPro RRG Reciprocal Risk Retention Group, National Fire & Marine Insurance Company – each of which has earned an A++ financial strength rating from AM Best – or other Berkshire Hathaway affiliates. Product availability is based upon business and/or regulatory approval and may differ among companies. © Attorney Protective. All Rights Reserved. AttPro-240626