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. 

Statistics

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Butler Snow LLP
Fox Rothschild LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Butler Snow LLP
Fox Rothschild LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions