In the intricate landscape of legal disputes, pro se/pro per plaintiffs—individuals representing themselves without legal counsel—pose unique challenges for defendants. As a preliminary note, self-represented plaintiffs are referred to as “pro se” plaintiffs in federal court and “pro per” plaintiffs in state court. During the course of this post, the term “pro se plaintiffs” will be used to reference self-represented plaintiffs. Reports have shown that in California state courts, there has been a rise in the number of pro se litigants. In 2004, over 4.3 million users of the California court system were self-represented. While many of those cases were family law or unlawful detainer cases, 16% of general civil cases were filed by pro se plaintiffs. In federal courts, data shows that between 1999 and 2018, over 1,517,000 federal district court cases, or 28 percent of all cases filed, involved at least one pro se party. Amongst these cases, 91.2 percent of all pro se litigation involve pro se plaintiffs which amounts to 25.4 percent of total filings between 1999 and 2018. Moreover, 20 percent of employment civil rights cases involved at least one pro se party. Generally, the federal courts have seen a consistent rate of pro se cases, between 1999 and 2019. As seen from the statistics, pro se plaintiffs, while not as prevalent in the employment space, are still more prevalent than one would expect. Accordingly, understanding the unique dynamics of such cases and being equipped with strategic approaches are vital.
It Is a Mistake to Discount the Pro Se Plaintiff
It may be easy to treat cases with pro se plaintiffs dismissively because the common assumption is they lack legal skills and are easier to litigate against. This is a misguided assumption. Pro se plaintiffs provide an interesting dynamic in that what they lack in legal knowledge is juxtaposed by increased leniency from judges in both federal and state courts. Despite the general duty of California courts to treat a person representing himself the same as though he were represented by counsel (Monastero v. Los Angeles Transit Company (1955) 131 Cal.App.2d 156, 160-61), judicial preference in pro se cases can be to resolve matters based on merit rather than dismiss due to procedural defaults. This typically manifests in California courts, among other acts of leniency, liberally construing documents filed by pro se plaintiffs, liberally allowing amendments to pleadings, and explaining different procedures to them during the course of litigation. Federal courts take a similar approach in how they treat pro se plaintiffs. (See Haines v. Kerner (1972) 404 U.S. 519, 521 (per curium) (pro se complaints are held to “less stringent” standards than those drafted by attorneys).) Therefore, while filing motions to dismiss in federal court and demurrers in state court is a great way to attack the pleadings of pro se plaintiffs, courts may be inclined to deny such motions much more readily than if the pleadings had been prepared and filed by experienced counsel.
Moreover, many pro se litigants may be much more knowledgeable than anticipated. Pro se plaintiffs may have legal backgrounds or even have assistance behind the scenes from family and friends who have legal backgrounds.
Additionally, cases with pro se plaintiffs often require more time and money than cases in which plaintiffs are represented by counsel because a large part of the battle is deciphering the various pleadings and motions that a pro se plaintiff may file. Pro se plaintiffs’ lack of knowledge regarding procedural elements may also cause hiccups along the road, which leads to more time and money spent to figure out how to address these hiccups.
Thus, it is important to treat pro se plaintiffs very much as seriously as plaintiffs represented by counsel.
Provide Help to the Court via Briefing
As difficult as it may be for defendants to ascertain pro se plaintiffs’ arguments, it is equally as difficult for the courts. Therefore, defendants should seek to provide courts with motions and briefing that clearly outline the facts, provide robust analysis of the legal issues, and even anticipate or interpret plaintiffs’ arguments. By providing the courts with briefing of this type, defendants provide courts with a good outline of the law that relieves courts from having to do their own research. Moreover, briefing that is complete, clear, and concise has the added benefit of providing courts with more incentive to use that briefing as the basis for their orders. In the context of litigating against pro se plaintiffs, briefing is more important than ever.
Approach Informal Settlement Talks Cautiously
Early resolution is appealing, especially if it means getting rid of a case with a pro se plaintiff that may take much more time and money than a case in which counsel represents the plaintiff. While some pro se plaintiffs may be open to early resolution, it is important to understand the risks that come with informally negotiating settlement with a pro se plaintiff before jumping in headfirst.
Pro se plaintiffs are not bound by the professional code of conduct that binds attorneys. Therefore, for example, while attorneys are bound by the professional codes of conduct that prohibit misrepresentations, pro se plaintiffs may make misrepresentations during the course of settlement talks to your detriment. Pro se plaintiffs may also agree to settlement terms and then back track afterwards to get better terms.
If a settlement is reached, it is important to take care to craft a thorough settlement agreement to avoid any attempts of pro se plaintiffs reneging as to agreed terms. It may be worthwhile to consider having a witness for the execution of the settlement agreement and any other precautions to document the events surrounding the execution of the settlement agreement.
Use Mediation and Other Alternative Dispute Resolution Solutions
While defendants should cautiously approach informal settlement talks, mediation, settlement conferences, and other alternative dispute resolution solutions may lead to a positive result. When a neutral party is involved in facilitating settlement discussions, defendants may be able to achieve much more than if they were themselves to approach pro se plaintiffs informally. Moreover, the neutral party may help provide more perspective to pro se plaintiffs and manage those plaintiffs’ expectations.
In conclusion, the landscape of pro se litigation requires a serious and strategic mindset. Defendants must acknowledge the challenges posed by pro se plaintiffs and adopt tailored strategies to navigate these legal complexities effectively. By doing so, defendants not only safeguard their interests but also contribute to the efficient and equitable resolution of legal disputes.