Beware the Pro Se Litigant

People sometimes file lawsuits without the assistance of an attorney at law.  People who represent themselves in a court case are called “pro se litigants.”  Complaints filed by pro se litigants are common, including in California and in Santa Clara County and San Mateo County in particular.  Imagine that your business received a complaint from a pro se litigant.  Should you ignore it because it did not come from an attorney?  You might think that a pro se case is not serious, but taking a complaint lightly could be a big mistake.

Judge Richard Posner served as a Circuit Judge of the United States Court of Appeal from 1981 until his recent retirement on September 1.  Posner’s self-published book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, was also released earlier this month.

In an interview with the New York Times, Posner opined that most judges regard pro se litigants as “not worth the time of a federal judge” and that Judges in the 7th Circuit (in the Midwest) generally rubber stamp recommendations of staff lawyers who review pro se appeals.   In addition, Posner said he was prevented from giving pro se litigants a better chance by reviewing the staff attorney memos before they were circulated to judges.

The question arises: given Posner’s statements, should you ignore or minimize the seriousness of a lawsuit being prosecuted by an individual on his or her behalf?  In my experience, the answer is a definite “No.”

Complaints drafted by pro se litigants are often Frankenstein monster type creations culled together from various sources available on the internet.  They are generally drafted by someone with skin in the game who believes that he or she has been personally wronged.  And while people who represent themselves in court arrive at that destination as a last resort, having been rejected by one or a series of lawyers, the complaint and other legal documents often suggest that someone with at least some legal training may be assisting in the background.

Contrary to what Posner argues, it has been my experience that judges afford every possible opportunity for pro se litigants to have their day in court.  While they will warn pro se litigants that they should not expect any leniency, this is not usually the case. Repeated opportunities to amend documents, missed deadlines and other procedural deficiencies can lead to increased legal costs being incurred by a defendant.

Moreover, counsel for a defendant must resist the temptation to dismiss the pro se litigant’s legal arguments as poorly written and entirely without merit, thereby alienating the judge.  Treat your opponent with respect and courtesy and never assume that your arguments will prevail.

In short, assign, monitor and control lawsuits brought against you by pro se litigants the same as you would any other, or suffer the possible consequences.

Please contact Marc Van Niekerk if you received a pro se lawsuit or have questions about pro se litigants.

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