United States: Uneven Ground: Legal And Practical Considerations For Defending Against Pro Se Plaintiffs

As a defense lawyer in the twenty-first century, it may seem like every litigant has "lawyered up," and that everyone has at least one lawyer programmed into their speed-dial directory.  However, particularly in large-scale class actions and mass tort litigation, it is highly likely that you will one day find yourself defending your client against one, or more likely, hundreds of unrepresented claimants and pro se plaintiffs. 


In order to fully comprehend the implications of dealing with unrepresented individuals, it is helpful to understand the statistics surrounding pro se litigation.  According to the Federal Courts Statistics Division, for the 12 month period ending September 30, 2012, Federal Courts reported a total of 77,703 civil pro se cases, representing 27.9% of the 278,442 total civil filings.  The 9th Circuit reported the largest number of pro se filings with a total of 17,400. 

In the event that you are defending your client against an unrepresented individual, whether in litigation or otherwise, there are a number of legal and practical considerations you should keep in mind to ensure that you are fully prepared for the potential consequences of your adversary's seeming lack of sophistication and legal experience.  The following discussion is not intended to be a complete recitation of the law in any of these areas; many of these issues have been extensively discussed in the case-law and should be researched independently.

1. Know your adversary.

Although the majority of pro se plaintiffs are likely to lack legal acumen or experience, that may not always be the case.  Some pro se plaintiffs may have assistance from an experienced attorney, whether through a family member or non-profit legal services organizations.  See, e.g., Gross v. Guzman, et al., Case No. 11-23028 (D. Fla. Oct. 9, 2012) (denying Defendants' motion to strike for fraud because the "competent quality of a party's pleadings is not a basis for striking them.").  While some states' ethical rules prohibit licensed attorneys from ghostwriting pleadings for pro se plaintiffs, it is generally permissible for attorneys to provide advice and counseling to pro se litigants.  See, e.g., Mass. Bar Ass'n. Ethics Opinion No. 98-1 (allowing limited representation without appearance but prohibiting ghostwriting of pleadings).  If an attorney aids by drafting pleadings, some states' ethical rules require the attorney to indicate that the document was "prepared with the assistance of counsel" on the final pleadings.   See, e.g., Fl. Rule Prof. Conduct, Rule 4-1.2(c), Comments.

Defense counsel should also consider the role prisoner pro se petitioners may play in litigation.  According to the Federal Courts Statistics Division, approximately 65% of all pro se civil filings were made by prisoners.  Particularly in high volume product liability cases, it is not unlikely that your adversaries will include pro se prisoner litigants.  Some jurisdictions, including the 9th Circuit, provide inmate litigants with special accommodations concerning procedural issues.  In Faile v. Upjohn Co., the 9th Circuit held that an incarcerated pro se litigant completes "service" of discovery responses when he submits them to prison authorities for mailing, and not when the documents are actually mailed.  988 F.2d 985 (9th Cir. 1993).  There are also statutory requirements that apply to prisoner litigants; in 1996, Congress implemented a three-strikes rule prohibiting prisoner litigants from bringing or appealing a judgment in a civil action if the prisoner has 3 or more prior dismissals based on Fed. R. Civ. P. 12(b)(6) or the frivolous nature of the claims.  Id. at § 1915(g).  Therefore, when involved in civil litigation against prisoner pro se plaintiffs, confirm at the outset that the plaintiff does not fall within this prohibition.

2.  Be mindful of the latitude afforded to pro se plaintiffs.

Many judges give pro se litigants considerable leeway, in light of their lack of legal expertise.  See, e.g., Pabon v. Wright, 459 F.3d 241 (2d Cir. 2006) (allowing pro se plaintiff to argue Fourteenth Amendment due process claim on appeal despite plaintiff's failure to present the argument at the lower court); Ohuche v. Merck & Co., Inc., 2012 U.S. Dist. LEXIS 147483 (S.D.N.Y. Oct. 12, 2012) (plaintiff's complaint "must be construed to raise the strongest arguments possible"); Brin v. Kansas, 101 F. Supp. 2d 1343 (D. Kan. 2000) (relaxing service requirements for pro se litigant).  This can be particularly true in class actions, where judges may issue orders regarding notice "to protect class members and fairly conduct the action."  See Fed. R. Civ. P. 23(d)(1)(B).

While pro se litigants are afforded some latitude, they usually cannot escape the basic legal standards and procedural rules to which all litigants are held.  In Ashcroft v. Iqbal, the United States Supreme Court found that the pro se plaintiff had failed to meet the pleading standard proclaimed in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which applies to all litigants.  556 U.S. 662 (2009).  Despite his 21 cause-of-action complaint, Iqbal had failed to state a claim with sufficient factual content to allow the court to draw "the reasonable inference that the defendant is liable for the misconduct alleged."  Id. at 662-65.  Similarly, in Gonzalez v. L'Oreal USA, Inc., the court dismissed plaintiff's claims for failure to effectuate timely service of process and lack of subject matter jurisdiction.  489 F.Supp.2d 181, 184 (N.D. N.Y. 2007). 

3. Keep in mind that jurors may be biased towards unrepresented litigants.

Defense counsel are accustomed to dealing with the common bias on the part of jurors against large companies litigating against individuals; the so-called "David vs. Goliath" effect.  When dealing with a pro se adversary, it is a good idea to treat the issue of opposing an unrepresented individual the same way.  Often, careful and robust voir dire can help you dissipate any impact the pro se nature of your opposing party may have on your case at trial.  Be prepared as well for the fact that some jurors may see the decision not to retain counsel as arrogant or thoughtless. 

4. Proceed cautiously when settling with unrepresented claimants.

At times, it is more difficult to deal with unrepresented claimants prior to litigation than it is to proceed with litigation.  Without a judge to review or approve the final settlement, your client can remain exposed to claims of coercion and duress.

After an unrepresented claimant has filed suit, the court can be a helpful resource in protecting your client against future claims of coercion or duress, because most judges will be willing to review settlement proposals and counsel with the pro se litigant, thereby reducing the gap in bargaining power.   In class actions, the court must review any settlement entered into by a certified class.  Fed. R. Civ. P. 23(e).  Even where no formal class has been certified, courts will carefully scrutinize the terms of settlement with putative class members and exercise their power under Fed. R. Civ. 23(d)(1)(B) to issue orders regulating notice.  See, e.g., In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, MDL No. 2179, Order dated Feb. 2, 2011 (imposing notice requirements for all communications with claimants). 

5. Maintain a sense of empathy to elicit good favor for your client.

While it can be difficult, it is important to maintain a sense of compassion against the pro se litigant or unrepresented pre-suit claimant.  In most cases, these individuals are in great distress and want to resolve their dispute with your client reasonably.  Indeed, many would prefer not to enter the legal system or be forced to retain counsel.  For large corporate clients facing a high volume of claimants, there may be significant media attention paid to your client's affairs.  Appearing curt or impatient with unrepresented claimants can have significant negative public relations consequences.  In litigation, judges appreciate attorneys who display understanding towards pro se litigants.  While you cannot offer legal advice, a showing of respect and courtesy towards your adversary may curry good favor for your client with the judge.

6. Err on the side of caution.

When dealing with unrepresented individuals, it is critical that defense counsel err on the side of being overly cautious. 

i. Repeatedly remind the unrepresented individual of their right to counsel and that you represent their opponent and must keep your client's best interests at heart.

ii. Never provide guidance that can be construed as offering legal advice.

iii. In settlement discussions, be clear about the terms and remind the unrepresented individual about taxes.  

iv. When negotiating settlements, reduce the settlement to writing as quickly as possible. 

Representing your client against unrepresented pre-suit claimants or litigants presents significant issues that must be carefully considered.  However, as long as you keep these considerations in mind and communicate clearly with your client, you will be able to plan your litigation strategy effectively and manage the client's expectations accordingly. 

Originally published in DRI's Strictly Speaking newsletter

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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