(Editor’s note: This article written by Lisa L. Savadjian and Robert T. Szyba ran in the most recent edition of the NJSBA’s Labor and Employment Law Quarterly. Members can read the full edition here.)
Litigating a case against a pro se plaintiff often can be more demanding than a typical case against a seasoned attorney. Courts are available for all–not just licensed attorneys–and therefore, most judges approach pro se plaintiffs with leniency one would not expect to see given to licensed attorneys.
In practice, this usually means an attorney must do their own job, plus the job of the adversary. As a result, there are some pitfalls in litigating with pro se plaintiffs, which can sometimes blow back against the unwary attorney. This article is meant to provide 10 tips on dealing with pro se plaintiffs, and how to approach litigation in order to protect your own clients’ interests, but also not run afoul of the court’s expectations of an attorney who is litigating against a pro se plaintiff.
1. It is common for pro se plaintiffs to underappreciate the adversarial process and your role as counsel for an adverse party. At times, pro se plaintiffs may ask for guidance, your suggestion, or may overshare information. You may also find yourself in a position where the pro se plaintiff fundamentally misunderstands the adverse position of the parties. They might not understand that you, as defense counsel, are not their court lawyer, court appointed or otherwise. It may need to be repeated that you are not there to provide the pro se plaintiff with legal counsel, and that your respective interests are not aligned.
2. When communicating with a pro se plaintiff by telephone, document the conversation with a follow up email noting the day, time, content of the discussion, and any agreements or disagreements reached. Also, keep an internal log in the case file of all communications so that you can refer back to it if the court ever asks when such discussion(s) took place. Keep in mind, however, that if a dispute arises, your communications with the pro se plaintiff will likely end up on the public docket. This may include settlement discussions that would normally be treated as confidential between attorneys and parties. Also consider that these written communications may be an opportune time to remind the pro se plaintiff that you are counsel for the defendant.
3. When communicating with the pro se plaintiff, if references are made to court rules or individual rules, provide a courtesy copy. But remember, pro se plaintiffs are not expected to know court rules, or abide by them even if informed. Further, a court is likely to look unfavorably upon any action that appears like it may be trying to take advantage of a pro se plaintiff’s lack of knowledge of court rules or practices.
4. In federal court, be sure to check the assigned judges’ Individual Civil Rules, as they often have specific rules for how they handle pro se cases, including responsibilities for attorneys in such cases.
5. Court orders will usually direct the pro se office to mail pro se plaintiffs copies of an order, but that can take over a week to arrive given slow mail times. As a courtesy and to ensure that the pro se plaintiff receives prompt notice of any order that impacts or is otherwise pertinent to the case, you may consider sending the order directly to the pro se plaintiff. While it may warrant a reminder that this is a courtesy and to avoid the expectation that you will now keep the pro se plaintiff informed of developments, this may help avoid arguments that the order was not received, especially where deadlines are set for the pro se plaintiff or other compliance is ordered.
6. Defendants are responsible for serving a courtesy copy of their filings on the pro se plaintiff, even if they signed up for electronic filing. Consider serving courtesy copies electronically with read receipts on, and hard copies via a method that allows tracking services. Also, when sending a letter to the court, ensure that the pro se plaintiff is copied, and the manner of delivery is also reflected. Additionally, you may consider confirming on the court’s docket that the clerk’s office has the correct email address for the pro se plaintiff. Pro se plaintiffs often use personal email addresses containing numbers or unique phrasing, and the clerk’s office may enter it into the system incorrectly, thus preventing receipt of the court’s electronic communications.
7. Notify pro se plaintiffs of all upcoming court appearances. If the pro se plaintiff does not show at a court appearance, the court may ask on the record whether defendant’s counsel made them aware of the date and responsibility to appear. Also provide the pro se plaintiff with advance notice of all upcoming deadlines. Unlike attorneys, litigating this case is not their full-time job and they may not be up to speed on the court’s deadlines or have them as top of mind as an attorney might. Providing notice of appearances and deadlines helps in situations where a pro se plaintiff fails to appear or misses a deadline, and courts have a greater factual basis upon which to enforce deadlines or deny further extensions.
8. Remember though, courts will be lenient about a pro se plaintiff missing filing deadlines and may even allow late filed oppositions to motions. Expect that reply deadlines may shift even up to a few weeks’ time.
9. In the U.S. District Court for the District of New Jersey, Local Civil Rules 16.1(f)(2) and 37.1(a)(2) exempt counsel from the typical requirement to first confer, and then present the dispute by letter or call with the magistrate judge to resolve any case management or discovery disputes, respectively. Instead, disputes shall be presented by formal motions, unless the magistrate judge directs otherwise.
10. Some pro se plaintiffs just do not know when to stop and may flood the docket with submissions and motions that are unnecessary. If you are faced with the unfortunate, but all too common, situation where a plaintiff continues to file frivolous motions, consider filing a motion to require the pro se plaintiff to obtain leave of court for all future filings.