Fall 2005 #1. Defending against a pro se plaintiff: When the plaintiff is David and you're Goliath.

Author:by Brian L. Champion

Maine Bar Journal


Fall 2005 #1.

Defending against a pro se plaintiff: When the plaintiff is David and you're Goliath

Maine Bar JournalFall 2005DEFENDING AGAINST A PRO SE PLAINTIFF: WHEN THE PLAINTIFF IS DAVID AND YOU'RE GOLIATHby Brian L. ChampionPro Se (proh say or see), adv. adj. [Latin] For oneself; on one's own behalf; without a lawyer [the defendant proceeded pro se] [a pro se defendant.] Also termed, pro persona, in propria persona; propria persona; pro per. See propria persona. (Black's Law Dictionary, p. 1258, Eighth Edition, West 2003.)

In an age where self-help books dominate bookstore shelves and attorneys' fees are at record highs, it is little wonder that pro se plaintiffs are growing in numbers. The proliferation of pro se plaintiffs causes stress upon the court system, judges, juries and attorneys alike. Court clerks find themselves providing procedural advice with each form they hand out to pro se plaintiffs. Judges, with an already clogged docket, find themselves having to slow down the legal process for pro se plaintiffs, while maintaining their dutiful impartiality. Attorneys often find themselves with emotionally charged adversaries who have little or no understanding of time lines, due dates, discovery requests, or rules of evidence and civil procedure. Attorneys opposing pro se plaintiffs have a particularly difficult job zealously representing their own clients. They are automatically dubbed the "Goliath" by the court and juries, and find themselves pitted against the seemingly defenseless "David," pro se plaintiff.

There is scant literature on the subject of pro se litigation. In fact, according to a paper in the American Bar Association's Judges' Journal, Fall 2002, "The ABA has no policy directly on pro se litigation." American Bar Association's Judges' Journal, 41, No. 4, W. Hornsby, 2002. The ABA conducted a research survey several years ago in Maricopa County, Arizona and found that "the primary reason self-help litigants gave for going forward without a lawyer was the belief that they could navigate the system and obtain their desired outcome on their own." Id. at 4; citing: A Report on Self-Help Law: Its Many Perspectives, ABA, 1985. According to the Judges' Journal, several courts now provide forms and online assistance to pro se litigants. Id. at 7, note 19; citing: Delaware, Florida, Hawaii, Idaho, Maine, Maryland, New York, Washington and Wisconsin.

From the Courts' Perspective

In 1998, the American Judicature Society/Justice Management Institute surveyed 612 judges chosen from various state courts regarding pro se litigation. (American Judicature Society, 82 Judicature 13, July/August 1998. As a general rule, the judges surveyed stated that:

A pro se litigant must comply with the rules and orders of the court, [and] enjoy no greater rights than those who employ counsel . . . Although pro se pleadings are viewed with tolerance . . . a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar . . . [a party's] pro se status does not require us or the trial court to assume he must be led by the hand through every step of the proceeding he initiated.

Id. at p. 16, citing: Newsome v. Farer, 708 P.2d 327, 331 (N.M. 1985); see also:

Haines v. Kerner, 404 U.S. 519, 520 (1972); Cassell v. Shellenberger, 514 A.2d 163 (Pa. 1986).

Several judges in the ABA survey stated that they often attempt to dissuade litigants from proceeding "pro se." One judge said, "I tell them they have the same right to represent themselves in court as I have to the handling of my personal plumbing...

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