Lawyers are used to dealing with other lawyers. We talk to and negotiate with each other in a certain way, in part because we all start with a (largely) common understanding of basic law and procedure. Sometimes, though, the party on the other side decides they don’t need a lawyer to represent them—or has that decision made for them when their counsel withdraws in the middle of the case. And if you think that dealing with competent, stubborn, insert-your-preferred-adjective-here opposing counsel is a challenge, just wait until you have to engage in a lengthy discovery meet and confer with an opposing party directly.
Below, we offer some thoughts on dealing with pro se litigants in complex disputes.
First, Make Sure They’re Actually Pro Se
Some pro se litigants begin a case with an attorney who then withdraws due to nonpayment or other issues. Before engaging directly with such a litigant, make sure that they are now, in fact, pro se. In California state court, where an attorney and client both agree to part ways, they can file a formal substitution of attorney (MC-050) form, which is effective without court order. Where one or the other does not agree to terminate the representation, a court order is required. If an opposing party or their “former” attorney tells you that the party is newly pro se, don’t blindly take their word for it; check the docket. If you don’t, you may run afoul of applicable rules of professional conduct by contacting them.
Make Sure They’re Only Representing Themselves
Just because a person is entitled to represent themselves, does not mean that they can represent others. This of course precludes a non-lawyer from representing other individuals, or even various entities that they might own, control, or otherwise have a financial or other interest in. But it also typically precludes a non-lawyer from asserting certain claims in a case, even where they are the sole putative plaintiff. For instance, class actions, shareholder derivative actions, and qui tam actions all involve claims asserted by a plaintiff in a “representative capacity,” such that the plaintiff typically may only assert them with the assistance of counsel. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008).
Ask that They Be Held to the Same Rules and Standards as Attorneys
In theory, a party who acts as his or her own attorney “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” Stover v. Bruntz, 12 Cal. App. 5th 19, 31 (2017) (citation omitted). This includes everything from discovery and briefing deadlines, to pleading standards, to basic courtroom decorum. In practice, our experience is that pro se litigants sometimes try to use their unrepresented status as both a sword and a shield—for instance, filing unauthorized pleadings and outrageously-broad discovery, while simultaneously demanding extensions of time and other concessions on account of their pro se status. If this happens, politely remind them (and the court) that they have to play by the same rules as everyone else.
Don’t Assume that They Actually Will Be Held to the Same Rules and Standards as Attorneys
Notwithstanding the above, don’t be surprised (or discouraged) if a pro se litigant seems to “get away with” a certain amount of intentional or unintentional misconduct. While it varies by judge and by case—and, perhaps, by day—judges are human, and may show a greater degree of empathy and patience to pro se litigants. This can, for instance, result in courts granting pro se litigants more time for certain matters than represented parties would get. An attorney zealously pursuing their own client’s interests might reasonably be more flexible with a pro se opponent, for fear of coming across as a bully and/or alienating the judge.
Expect Erratic Behavior
As heated as attorney exchanges can be, they often can’t hold a candle to the passion exhibited by the parties themselves for their own case. Attorneys typically view the lawyer on the other side of a case as their “opponent.” That opponent may be a colleague, a stranger, or even a friend. It may be someone you like, or someone you dislike. But to a pro se party on the other side of the ‘v,’ there is a good chance that you are not just an opponent; you are the enemy. They may yell at you and send you nasty emails. They may go to the press. They may even attack the judge, or file a bar complaint against you. Whatever they do, it’s imperative that you keep your cool, and remember both your professional responsibilities and also that you are dealing with a person who has an emotional stake in the outcome of the case that you do not (or should not) have.
Document Everything
Good lawyers know to document material oral discussion between the parties. This is particularly important when dealing with pro se parties, who may not understand many of the things that you are obligated to meet and confer with them about, and thus may be more likely to dispute the record if and when it comes to motion practice. Documentation simultaneously helps mitigate this concern and, when done well, goes a long way toward convincing the court that you’re treating your pro se opponent fairly and with respect.
For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, or Joshua Korr.
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