Remember this phrase: Litigation Privilege. The phrase has a formal meaning, but in layman’s language it means that lawyers can do just about anything, especially to a self-represented litigant, to protect their clients. They can lie, steal, cheat–and kill if they could get away with it–to win. Lawyers don’t always need tricks to defeat pro se litigants, but they try them anyway. They can scare defendants into paying more than they owe or settling for far less than they deserve. They’ll use a request for admissions to make pro se litigants “admit” to undeserved liability by not answering. Some will even attempt to keep away your court reporter by lying to you or to your court reporting agency. So keep your eyes open when you’ve cornered a lawyer. Chances are, there’s a trick coming, and when it does, don’t let your emotions get the best of you. Stay focused on your case. Reacting in anger by moving for sanctions, writing letters to the judge, reporting lawyer behavior in a hearing, or moving to disqualify a lawyer makes thinking and strategizing difficult. That’s not to say certain issues shouldn’t be addressed. If you must take an issue head-on, like moving for sanctions, do it strategically so you’ll get the most out of it. Otherwise, only address lawyer antics and judicial bias when it hurts your case, not when it hurts your feelings.
Congress also has a role. In extreme cases it has the power to remove judges, of course. But short of that, it can at least underscore the seriousness of the rights it established for litigants in the Judiciary Act. Whether through binding or nonbinding language on the topic, Congress can make clear that complaints about violations of the rights of pro se litigants must be taken very seriously by judicial councils.
Congratulations! You have just filed your first Pro Se complaint. Feel free to share your new knowledge with as many people as you can, including any materials in this packet. Nothing is copyrighted, and duplication is encouraged. If you need any further assistance, please call the Pa. Coalition of Citizens with Disabilities at (717) 238-0172 voice or (717) 238-3433 TTY.
The SDNY, which provides the funding for the clinic, recently approved the introduction of a mediation project, which in a short period of time has proved to be highly effective. Clinic staff members and volunteers are now permitted to represent pro se litigants in connection with settlements. Litigants get an impartial view of the strengths and weaknesses of their cases, resulting in earlier resolutions. Over half of the litigants who were represented by clinic staff members or volunteers settled their cases.
Make plain-English information about how to navigate in the court available to the public. All court procedures can be explained in plain English. Nolo Press, other self-help law publishers and the Maricopa County Superior Court have proven that this is so. Unfortunately the courts systematically refuse to inform self-represented litigants about available private-sector publications, apparently on the ground that they don't want to be seen endorsing them. Fair enough. But the courts should then follow the lead of the Maricopa County Superior Court and make plain-English guides available to all.
When cases go to trial before a judge, there is no reason to insist on formal procedures or evidence rules. The judge should facilitate each side's presentation as is done in small claims court, rather than sit back and make the parties present their cases under arcane rules that take years to master. This approach would not violate due process, because judges would base their decisions on competent and relevant evidence.
Not surprisingly, this disparity in legal knowledge and skill on the part of pro se litigants produces a host of unique problems for the courts and the bar in general and, in particular, for trial counsel. Nevertheless, despite the many challenges they bring to the table, pro se litigants are here to stay, and their numbers are steadily growing. According to the National Center for State Courts, the number of pro se litigants in civil cases continues to rise, and there is every reason to believe this trend will continue. https://www.ncsc.org/. In fact, the number of annual non-prisoner pro se filings each year in federal courts alone tops about 25,000 and constitutes a significant section of the federal caseload. Jefri Wood, Pro Se Case Management for Nonprisoner Civil Litigation (Fed. Judicial Ctr. Sept. 28, 2016).
Now most pro se litigants are at a disadvantage in contested litigation. It may be awkward or inappropriate for them to appear both as counsel and as a witness. They're deprived of the judgment of an independent third party in framing the case, in evaluating how to present the evidence and in forming legal arguments and also in making sure that it is reason rather than emotion that steers how the case is conducted. That's why Judges sometimes warn a party who is proceeding pro se of the old saying that anyone who represents himself in court has a fool for a client and an ass for an attorney.
When you go into a foreign country and want to communicate with the inhabitants, you have to talk THEIR lingo. Courtrooms are a foreign country and they have their own language. "Complaint language" (or "law talk") is what they call it. If you don't use it in your pleadings (that's what documents you file with the court are), you will not only not be listened to and taken seriously, you will not be HEARD. They will literally not SEE the words on the page if they are not written in their "language."
62. See, for example, Robert Bacharach and Lyn Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to Neutrality, 42 Ind L Rev 19, 34–35 (2009) (arguing that “ad hoc” rules applied to pro se litigants often end up disadvantaging rather than aiding pro se litigants, and specifically describing how attempts by judges to help pro se litigants make initial claims could lead to more dismissals of those claims, thus threatening their pauper status).
The potential relevance of selection bias in this analysis should also be addressed. As Part II discusses, selection bias can likely explain a portion of the gap in case outcomes between pro se and represented litigants.110 However, as this Part discusses, the relevant sample for comparison is the difference in case outcomes between pro se litigants in courts that have implemented reforms and courts that have not implemented reforms. Thus, the pro se cases in different district courts are similarly affected by this selection bias. Litigants with weaker cases may be more likely to proceed pro se in EDNY, but they are also more likely to proceed pro se in the Southern District of New York (SDNY) or the Northern District of Illinois. Accordingly, the cases being compared should presumably be similar in average strength, or at least there is no reason to think this selection bias will result in differences in average case strength for pro se litigants across different district courts. These selection bias issues result in a gap in the average strength of cases brought by pro se litigants and represented litigants, but they do not lead to a gap between the average strength of cases brought by pro se litigants in two different district courts.111
There are some notable records of pro se litigants winning more than $2,000 as plaintiffs: Robert Kearns, inventor of the intermittent windshield wiper who won more than $10 million from Ford for patent infringement; Dr. Julio Perez (District of Southern New York 10-cv-08278) won approximately $5 million in a federal jury trial from Progenics Pharmaceuticals for wrongful termination as a result of whistleblowing; Reginald and Roxanna Bailey (District of Missouri 08-cv-1456), a married couple, who together won $140,000 from Allstate Insurance in a federal jury trial; George M. Cofield, a pro se janitor, won $30,000 from the City of Atlanta in 1980; and Jonathan Odom, a pro se prisoner, who while still a prisoner, won $19,999 from the State of New York in a jury trial. Timothy-Allen Albertson, who appeared in pro. per., was awarded $3,500 in 1981 in a judgment by the San Francisco Municipal Court entered against the Universal Life Church for defamation by one of its ministers.
Genius often makes itself known in short bursts, so don't let it go when it comes around. If you have a great idea for a new work process, a recipe to try, or even a way to drive more efficiently, write it down. This way, you'll remember the strokes of genius that fleetingly pass through, and you'll be able to look back on them and remind yourself of the little things when you're feeling down.
Defendants who choose to appear pro se may do so because they believe they may gain tactical advantages against the prosecutor, such as obtaining sympathy from the jury, the opportunity to personally address the jury and witnesses. Pro se appearances may also delay the trial proceedings and enhance the possibility of a mistrial and a subsequent appeal.
As Tables 2.2 and 2.3 demonstrate, the presence of a pro se plaintiff or pro se defendant dramatically changes the dynamics of litigation. When both parties are represented and there is a recorded final judgment for either the plaintiff or the defendant, the plaintiff and the defendant each win roughly 50 percent of the time. When the plaintiff proceeds pro se, the plaintiff instead wins about 4 percent of the time. When the defendant proceeds pro se, the plaintiff wins 86 percent of the time. These differences are stark. A represented defendant will nearly always prevail over a pro se plaintiff in court. A represented plaintiff will win almost as consistently against a pro se defendant.
In New Hampshire one party is pro se in 85% of all civil cases in the district court and 48% of all civil cases in the superior court in 2004. In probate court, both sides are unrepresented by lawyers in 38% of cases. In superior court domestic relations cases, almost 70% of cases have one pro se party, while in district court domestic violence cases, 97% of the cases have one pro se party.
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The Connecticut Supreme Court narrowed criminal defendant's right to self representation, stating that "we are free to adopt for mentally ill or mentally incapacitated defendants who wish to represent themselves at trial a competency standard that differs from the standard for determining whether such a defendant is competent to stand trial". A Senior Assistant State's Attorney explained that the new standard essentially allows judges to consider whether the defendants are competent enough to perform the skills needed to defend themselves, including composing questions for voir dire and witnesses.