The Perils of Dealing with Pro Se Litigants

• Pages: 20-21
• Date: 01 October 2023
• Author: Hon. Carl A. Aveni
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

time-worn adage, sometimes misattributed to

Abraham Lincoln, observes that “the man who rep-

resents himself has a fool for a client.” Whether that

axiom holds true in any particular case or not,

pro se litigants present unique challenges to a

judicial system that prizes uniformity and consistency.

The lawyers practicing in that system typically receive three

years of specialized education, tracking a mostly standardized

curriculum, approved by a national accrediting institution.

They pass a professional certication exam. They may appren-

tice with a rm or receive mentoring by a local bar organiza-

tion. They bind themselves to a uniform set of professional

standards, at peril to their licensure. They work in an arcane

system, lled with unfamiliar terminology and byzantine pro-

cesses, that places premiums on order and predictability.

Pro se litigants , by contrast, ty pically posse ss none of

that education, tra ining, or experience. Thei r knowledge of

the courtroom m ight be limited to whatever view they have

managed to glea n from books, movies , and television. And

rarely will they h ave any practica l familiar ity at all with

the critical —but less telegenic—work that happens in t he

discovery and pret rial phases of litigation. Becaus e they are

advocating on their ow n behalf, they may be less objective

The Perils of Dealing with

Pro Se Litigants

By Hon. Carl A. Aveni, Litiga tion News A ssoc iate E ditor

© Getty Image s

in their asses sment of the facts or more emotional in their

demands. They m ay have unreal istic ideas about case va lu-

ation or probability of succe ss. They mig ht fundamenta lly

misundersta nd precedent or the prima facie elements of the

case. They mig ht be suspicious or hostile to counsel, the

court, and th e system alike.

Or, maybe, none of those things. Sometimes, pro se liti-

gants are as strategic, dispassionate, and principled as their

professional counterparts. They can be as careful in their

dealings and as persuasive in their arguments. They might

surprise you with their grasp of procedure or the perfectly apt

case they found online, which you didn’t see coming. It’s their

ght, and they might be willing to invest time and energy into

winning it that a professional would consider disproportion-

ate to the dispute.

Simply put, you just never know. And even that can be a

problem. In a system that values consistency and predictabil-

ity, pro se litigants often possess other qualities, making them

hard to pigeonhole and frustrating to deal with.

Courts Stru ggle to Be Even- Handed

Rule 2.2 of the Model Code of Judicial Conduct broadly

directs that judges must perform “all duties of judicial ofce

FALL 2023 • VOL. 4 9 NO. 1

20 | ABA LITIGATION SECTIO N

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