The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

Special Considerations For Pre-Trial Proceedings Involving Pro Se Litigants 
By Devlin J. Schoop

If asked, most lawyers might say that handling a case against a pro se litigant would be very easy. But any seasoned litigator will tell you the exact opposite. The unique obstacles — legal, ethical, and tactical — that pro se litigants present make handling a case against them one of the hardest challenges a litigator can face as a lawyer. You do not have to tell another lawyer that you do not represent their client’s interests, or that they have to file an opposition brief if they want to defeat a motion for summary judgment that you have filed with the court. But that is precisely what the Illinois Rules of Professional Conduct3  and case law4  require lawyers do when dealing with a pro se. What’s more, to ensure that a pro se litigant’s ability to mount their case is not unfairly impeded, courts often give them wide latitude in presenting evidence and arguments. How wide is that latitude? The First District has held that to ensure that a pro se litigant receives a fair trial, the trial judge can object to questions asked by the attorney representing the other side, but cannot make similar objections to questions of a pro se because "there is a far lesser need to protect the interests of the party who is represented by counsel."5  Before you scream about unfair double standards, relax and remember that by your training and experience, you do still have a far greater advantage than any pro se litigant. Here are some tips, learned first hand, to make the experience as pain free as possible.

Educate Your Client

The critical first step is to explain to your client that the judge will likely be more lenient in applying technical rules to a pro se. That means that there will be unavoidable delays. A pro se will typically seek and receive several continuances of the lawsuit early so that they can try to get a lawyer. Many pro se plaintiffs often commence litigation after petitioning the court to proceed in forma pauperis to avoid having to pay the standard filing and service fees required to commence a lawsuit.6  Frequently the petitions are incomplete or raise questions about the litigant’s financial status that will require further documentation and may cause the court to continue the matter for status several times before entering any substantive deadlines. A pro se might also petition the court for court-appointed counsel, but there is no right to court-appointed counsel in a civil case and many judges will usually only appoint counsel where it is clear that the pro se is indigent and the case is too complex for the pro se to handle alone.7  Some judges might continue the matter several times for status to enable to the pro se litigant to supplement their petition. It is important to explain any foreseeable delays to your client as early as possible to maintain good client relations.

Understand Your Opponent’s Perspective

The majority of pro se litigants are representing themselves by necessity, not choice. Few people have enough money to hire a lawyer. Even fewer have adequate time, resources, or training to represent themselves in court. Many have attempted to obtain counsel but could not afford to pay retainers, or the economics of law practice prohibited the average lawyer from taking the case even on a contingent fee basis. That is not to say that the case lacks legal merit provided it was properly developed. Frustration over these circumstances coupled with anxiety over how to maneuver in the intimidating courtroom environment and being too emotionally attached to their case, causes many pro se litigants to become difficult to handle. Because of these circumstances you should make an extra effort to be as courteous and professional as possible. Some pro se litigants will inherently respect you because of your knowledge of the law while others might feel manipulated by your experience and knowledge. Whether they respect you or feel intimidated, it is important to build a cordial relationship which could help avoid unnecessary motion practice and/or help pave the way to early settlement negotiations.

Getting Started

Starting a lawsuit with a pro se litigant should be no different than with a represented party with a few minor, but important, differences. You will want to start your case just like any other lawsuit. Meet with your client to review the allegations in the complaint and begin formulating your answer and affirmative defenses. During that meeting, ask your client if there are other factors that need to be considered that could help or hinder early resolution of the case. Most pro se litigants are just as anxious to be through with the litigation as your client, and would welcome the opportunity to settle early provided that they persuaded that they are being treated fairly. Specifically ask the client if there are any special circumstances that you need to know about your pro se opponent, including whether they have a history of mental illness, drug or alcohol abuse, or have threatened to commit violent acts. If so, you might want to consider moving for a protective order early in the litigation to alert the court of your concerns so that these issues can be promptly addressed as they will clearly impact on your ability to conduct discovery, participate in settlement conferences, or try the case. This will be particularly important when it is time to schedule the deposition of the pro se. Depending on the nature of the case and the pro se’s mental state, depositions can become emotionally charged and the last thing that you want is to have an overly emotional or potentially violent person in your office. One suggestion is to request that the deposition be taken in a neutral and secure environment. On several occasions I have successfully moved to have a pro se plaintiff’s deposition taken in the courthouse where the action is pending. The obvious advantages are that the courthouse is "neutral territory" and can help relax the pro se and reduce the risk of outbursts or other trouble. Furthermore, the pro se will have to go through security to enter the courthouse thereby reducing the chances that he or she might bring a weapon to the deposition. The fact that everyone must go through security will trump any arguments that the pro se might raise over allegedly being unfairly prejudiced.

If the pro se is a stranger to your client, it is very important to gather as much information about the person’s background as possible. It is always a good idea to check state and federal court dockets to determine if they have sued other people in the past and if so how often. Get copies of the relevant pleadings, affidavits, and any other evidentiary materials available from prior lawsuit because they might contain useful information about your opponent. Knowing about a pro se’s prior litigation experience is important because it can reveal your opponent’s level of litigation sophistication. Also when a pro se litigant has a history of filing multiple or successive lawsuits it sometimes is a sign that your opponent likes to engage in frivolous or vexatious litigation. When a pro se files a motion of questionable legal merit it is easier to shrug it off as the person’s lack of legal training. But that assumption is easily negated if you learn that your lawsuit is just one in a number of previously filed cases. Many courts, including the U.S. Court of Appeals for the Seventh Circuit and the U.S. District Court for the Northern District of Illinois, have internal operating procedures that limit so-called "frequent filers" from filing successive lawsuits without prior leave of court and/or advising the court of previously filed complaints so that the newly assigned judge can determine whether the litigant is engaging in vexatious litigation barred under 28 U.S.C. §1915.8 

Communications with the Pro Se

As a legal and practical matter, you should always keep your communications with a pro se to a minimum. Before you ever attempt to contact a pro se litigant, you would be wise to consult Rule 4.3 of the Illinois Rules of Professional Conduct,9  which expressly forbids an attorney from stating or implying that the attorney is disinterested to the lawsuit. While the average person would understand that their opponent’s lawyer represents their opponent, your pro se might lack the capacity or sophistication to fully understand that fact. Just because you are a lawyer does not mean that you are the pro se’s lawyer. You must unequivocally explain that fact to the pro se, preferably in writing, as often as possible. Such a misunderstanding is likely to occur during the initial status call in your case when the pro se is completely unfamiliar with courtroom protocol and might probably just wait for either you or the judge to tell him or her what to do since they do not understand how the process works. Of course, that can lead them to start asking you questions like "what do I do next?" Be careful! Your duty is to your client, not the pro se. You should avoid ever making any statements that could be construed as legal advice to the pro se because he or she could later accuse you of making false or misleading statements,10  giving them misleading or prejudicial legal advice, or implying that you are disinterested and want to "help" the pro se settle their lawsuit against your client.11  All are claims that can fuel potential allegations that you violated the rules of professional conduct by attempting to take advantage of an unrepresented party. To avoid any misunderstanding, the best practice is to document all communications with a pro se. Every letter you send to a pro se should remind them that you cannot offer them legal advice, and should recommend that they seek legal counsel to represent them. Frequent reminders that you represent their opponent can only help you if the pro se later accuses you of misconduct that somehow prejudiced their ability to proceed with their case.

As a practical matter, limiting your discussions with a pro se to brief conversations will force the pro se to focus only on relevant issues. Unlike your client, the pro se is not spending money to litigate this case while every minute of your time is either costing you or your client money so do not permit the pro se to engage you in unproductive conversations.

While you should always be careful about how and what you communicate to a pro se litigant, some statements are perfectly legitimate and should be frequently repeated both verbally and in writing because they are not susceptible to any misunderstanding. You can tell a pro se that he or she should obtain counsel. Obtaining counsel can often help your client’s interests because sometimes another lawyer can persuade a pro se that they have no case or a weak case and can help expedite resolution. Even if an early settlement cannot be reached, having a lawyer on the other side can help keep the case focused on relevant issues and minimize delays that could arise due to a pro se’s unfamiliarity with court rules and the law.

Aggressively Pursue Your Case Early

Dispositive motions should, if warranted, be pursued to put the pro se on the defensive. Because state court requires fact instead of notice pleading, motions to dismiss have a greater likelihood of success in state court provided that the pro se has failed to provide sufficient factual allegations to support their claims. This is especially true in breach of contract or fraud claims that will require greater factual specificity.

Propound your written discovery as early as possible because the pro se might take too long to respond and require you to file a motion to compel. Be sure to strictly comply with your obligations under Supreme Court Rule 201(k) or Northern District of Illinois Local Rule 37.2 to attempt to resolve discovery disputes before filing a motion to compel. It is very important to frequently document your attempts to secure the pro se’s compliance with court orders and discovery rules because significant violation of a rule or order could cause the court to dismiss the pro se’s action for want of prosecution or as a sanction for failing to comply with discovery.12 

If you are dealing with an untrustworthy pro se it might be prudent to send all correspondence and notices of motion via certified mail so that you can have a record of their actual receipt of documents to avoid later allegations by the pro se that they never received proper notice of a filing, discovery, or correspondence material to the case.

Do not permit the pro se to provide you with vague and incomplete discovery responses and be sure to collect any and all documents that they contend support their lawsuit. A document production involving a pro se can pose very significant problems for the unsuspecting attorney. Some pro se litigants might have a large volume of documents that they contend support their case. Under state and federal discovery rules, parties are not obligated to pay to copy documents that are to be produced to the other side despite the fact that lawyers routinely copy and produce documents to the other side if a small volume of documents involved. If a pro se insists on producing their original documents for you to copy, it would be prudent to insist that the pro se number each sheet of paper that they give you (i.e., apply Bates labels or something similar) to avoid allegations later that you did not return all of the documents produced for inspection. Even if the documents are sent directly to your outside copy service, there is always a chance that the pro se will accuse you of destroying one of their original documents. Although the court is unlikely to believe the pro se, you will have to respond and you do not want there to be any doubts about whether you returned all of the documents.

Because the pro se might not know the rules, he or she might not even be aware that they are allowed to issue discovery. However, many courts now provide pro litigants with informational packets that provide basic information about the litigation process, including that the pro se is allowed to issue discovery and describing their obligations to provide proper service of all pleadings to you and to respond to your motions. That said, the average pro se might not realize that they can file motions to compel if they feel that your discovery is unresponsive. As a legal, ethical, and practical matter, lawyers should always go out of their way to provide a pro se with as much information relevant to the case as early as possible. Your obligations under the rules of court and professional conduct demand it and judges will not look too kindly upon you if you commit any act that creates the appearance that you are needlessly impeding the pro se’s ability to get information to prosecute their case. Moreover, your responses to discovery are a useful tool to teach the pro se about the weaknesses of their case. For example, by identifying a large number of witnesses and/or documents that refute the pro se’s allegations, he or she might be persuaded to either drop some or all of their claims in the lawsuit, or seek settlement.

Early resolution can also be caused by taking the pro se’s deposition. The deposition will be your chance to show the pro se what it will be like to testify at trial. Strategically you want to make the experience as uncomfortable as possible within the bounds of ethical conduct. Ask lots of questions that expose the pro se’s lack of personal knowledge or evidence that supports their case, shows their bias, or reveals that they may be liable to your client for a counterclaim. For example, during a deposition in a breach of contract claim against your client, you might learn that the pro se made defamatory comments about your client that could warrant filing a counterclaim. Similarly, in a landlord/tenant dispute, if representing the landlord, you might file a counterclaim if the plaintiff damaged your client’s apartment. Be careful about the types of motions you file because it might cause the pro se to reflexively file a similar or identical motion against your client, whether the pro se’s motion has merit or not. Since a pro se has no formal legal training, many will fashion their pleadings and arguments to track motions you present to the court.

Involve The Judge

Just like any other case, sometimes it is useful to involve the judge to help facilitate early resolution or, if settlement is not feasible, to at least narrow the issues in the case. Judges, by their stature and actual authority over the litigation, can persuade both the pro se and your client of the need to try to settle and/or explain the court’s expectations on how the case shall proceed. Because the judge must remain impartial, he or she will not give the pro se legal advice, but can explain some general rules to persuade the pro se that as a practical matter they will not be able to effectively try a case by themselves, or adequately prosecute their claim to survive a motion for summary judgment. Early judicial intervention at status hearings and motions can also lay the foundation for future dispositive motions against the pro se to the extent that he or she does not comply with a court order. Always be candid with both the court and your opponent as to the specific legal and factual issues that you believe are material to the case so that the pro se cannot seek a continuance by claiming unfair surprise.

Expect the Unexpected

There is no way to predict what a pro se will do in litigation. The best strategy always is to focus the case on the relevant factual and legal issues and force the pro se to do the same. Think ahead as to all of the substantive and procedural hurdles that the pro se will need to overcome to take his or her case to trial and determine what types of motions should be pursued at those critical junctures to place the case in a posture for dismissal or settlement.

 1 This article primarily focuses on pro se litigants who are plaintiffs, but many of the suggestions would apply equally to pro se defendants.

 3 Rule 4.3 of the Illinois Rules of Professional Conduct states, "[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

 4 Timms v. Frank, 953 F.2d 281 (7th Cir. 1992) (holding that parties not represented by counsel are entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment). Timms was the basis for Local Rule 56.2 of the Northern District of Illinois, which provides: "Any party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" in the form indicated below. Where the pro se party is not the plaintiff, the movant should amend the form notice as necessary to reflect that fact."

 5Pavilon v. Kaferly, 204 Ill. App.3d 235, 561 N.E2d 1245 (1st Dist. 1990)

 6 See, e.g., 28 U.S.C. §1915(a), which provides "[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without the prepayment of fees and costs or security thereof, by a person who makes affidavit that he is unable to pay such costs or give security therefore. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitles to redress.

 7 See, e.g., 28 U.S.C. §1915(d), which provides "[t]he court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

 8 See supra, note 6.

 9 Rule 4.3 of the Illinois Rules of Professional Conduct provides "[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

 10 Rule 4.1 of the Illinois Rules of Professional Conduct provides "[i]n the course of representing a client a lawyer shall not . . . make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false . . . .

 11 See supra, note 8.

 12 See, e.g., Fed. R. Civ. P. 37; see also Ill. S. Ct. Rule 219.

 Devlin Schoop is a litigation associate with the Chicago law firm Laner, Muchin, Dombrow, Becker, Levin & Tominberg, where he represents defendants in employment and civil rights litigation. Mr. Schoop graduated from the University of Illinois College of Law, and has successfully defended several lawsuits brought by pro se litigants in both federal and state court.


 
 
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