Much like in life, the business of insurance defense is about the cards we are dealt with. The more experience you have, the easier it is to know the good cards, the bad cards and how to play them. But what happens when you are dealt with a "wildcard"? This is what it can feel like when matched against a self-represented, or pro se, litigant. Whether as a claims adjuster or an insurance defense attorney, we often take for granted that the process from the initial claim through litigation will follow a standard procedure. But the introduction of someone who is unfamiliar with this process can serve as a sudden reminder of how quickly "standard procedure" can go awry. This does not have to be the case and with some practical considerations, many of the pitfalls of working with pro se litigants can be avoided.
Communication Matters
The reality of dealing with an unrepresented claimant/plaintiff is that their motivations are fundamentally different than those of typical opposing counsel. They are often driven more by principle than facts, emotionally tied to the underlying claims and singularly focused on their one and only case. Additionally, these pro se litigants are operating in a way that they believe they are supposed to, rather than from a place of expertise or experience. An average person is made to believe that the claims and litigation processes are inherently confrontational, and when representing oneself, these litigants enter with that mentality. We must prepare for skepticism and defensiveness in our communications and be prepared with the tools to minimize these reactions. To do this, consider the following:
- Remind them what your role is. Do not assume that a pro se litigant knows who exactly you are or who your client is. Clarify your role and responsibility in the matter. On one hand, this explains the motivations behind your actions, but this also makes things less personal and provides perspective;
- Cut through the adversarial nature of the situation by offering common ground. This may be highlighting agreed upon facts, or allowing for compromise where possible;
- Explain the larger picture of the claims/litigation. This can describe your expectations for next steps along the way, stating how you typically handle similar cases, and/or clarifying the purpose of each step in the process.
- (Note: Always strive to avoid talking down to them or overwhelming them with information)
While we must make these efforts towards productive communications, we equally must stay focused on protecting our clients. Dealing with someone who is unrepresented requires more deliberate and precise communication than usual. In that regard, consider the following:
- Primarily communicate in writing if possible. This will help avoid disputes over ambiguous or misinterpreted conversations. Keep this polite, professional and clear as all communications could end up as exhibits before the court;
- Prepare for potential misunderstandings. You can never guarantee how someone will receive information, but avoiding vague or confusing language will certainly help.
- Example: In a typical situation it may be fine to tell someone that "we'd like to get this worked out." But it is not out of the realm of possibility that this could be understood by a pro se claimant as "they're going to pay me for this accident."
- Do not take anything for granted. We cannot assume that the usual proceedings of a case will be held in these situations. If something seems unclear, make sure to clarify, even if it seems trivial.
Litigating Against a Pro Se Plaintiff
In the eyes of the Georgia case law, there should be few differences in the requirements and responsibilities of pro se litigants and practicing attorneys. It has been clear that when "one who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law." Bazan v. Bazan (Ga. Ct. App. 2018). Bazan also states that besides "holding pro se litigants to less stringent standards than attorneys with respect to their pleadings, a court cannot apply different standards to a pro se civil litigant and one represented by counsel." While this may be, those of us who have found ourselves opposing a pro se Plaintiff in front of a Judge know that the court's "less stringent standards" are often applied well beyond pleadings.
The reality is that once suit is filed and the Plaintiff has elected to proceed pro se, courts are likely to give the unrepresented party the benefit of the doubt more often than not. As attorneys, this can be frustrating. We have to be aware that along with certain leniencies Judges show pro se litigants, they also often place heightened expectations on opposing attorneys to keep the case on track. In these cases, Judges may expect the attorney to manage things like the discovery timelines for all parties, take the lead on joint pleadings or proactively remind the pro se Plaintiff of their own obligations. The court's expectation is that we as attorneys know better than those who are unrepresented. To meet that expectation, it is important that we remain consistent and diligent in our management of these cases. We can accomplish this by:
- Communicating openly with the pro se Plaintiff about your expectations for timelines and events in litigation;
- Clearly stating procedural or discovery issues to the pro se Plaintiff before bringing these to the court;
- Avoiding any appearance of bullying or talking down to a pro se Plaintiff, as judges are particularly quick to reprimand this behavior;
- Documenting all work in the case to distinguish your efforts from a pro se Plaintiff's potential inactivity and/or inattention.
The difficulties in opposing a pro se litigant lie in the deviations from our expectations. Whether it be misunderstandings of the law, facts or procedure, those who are representing themselves present obstacles beyond the many we already navigate in these types of cases. Ultimately, we can limit these difficulties with diligence, professionalism, and candor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
