The usual and customary manner in which attorneys defend employment practices liability claims can change in dramatic fashion if the claim being asserted is brought by a pro se litigant. As the overwhelming majority of pro se litigants are not lawyers, and likely have nothing more than a rudimentary understanding of a court's procedures and rules, litigating a matter against a pro se litigant can present unique challenges and can quite often increase both the time and cost of litigation. An awareness of the distinctive challenges posed by pro se proceedings can help both claims resolution professionals and attorneys in minimizing the difficulties and potential pitfalls associated with pro se claims.
Early Engagement
Never is it more evident how emotionally charged and invested some claimants are than when an individual chooses to seek justice and redress an alleged wrong on their own behalf as a pro se litigant. Moreover, the raw emotion and investment litigants infuse into their pursuit of justice is fed by an animosity towards those who they believe have aggrieved them. If left unaddressed, the emotional investment and potential animosity of a pro se litigant can quickly snowball, ultimately resulting in far more time and money being spent in trying to defend and resolve such claims. Given same, claims resolution professionals and attorneys need to develop unique strategies to effectively deal with situations where the emotions of the pro se litigant are the driving force behind the pursuit of justice.
Dealing with pro se litigants can often be a frustrating proposition. However, early engagement of a pro se litigant will often go a long way in stemming or softening the anger that is frequently the driving force behind their claim. Providing a pro se litigant with an opportunity to voice his or her displeasure and feelings of aggrievement can work to minimize any litigious impulse and provide an early opportunity to resolve the claim prior to the institution of litigation, saving substantial amounts of time and money.
Additionally, given their often elementary understanding of the legal system, educating the pro se claimant on the potential time and cost investment of litigation versus the benefits of a potential early resolution can often awaken the claimant to the realities of litigation. For many pro se litigants, a quick fix can be precisely what they are looking for. Being both polite and professional can frequently elicit a reasonable demand that ultimately might prove to be a fraction of the cost of litigating the claim. While pro se litigants should not be underestimated, a proper approach at the presentation of a claim and prior to the institution of litigation can save companies and insurers significant money and resources.
Lack of Knowledge
Should pre-suit communications with the pro se litigant not result in the resolution of the claim and the filing of a lawsuit by the claimant becomes a reality, the interactions with and strategy for dealing with a pro se plaintiff must be molded to match the different setting. First, it is important to continue to be mindful that the pro se litigant's knowledge of the law and procedural requirements are likely very basic. The implications of this are two-fold.
First, the pro se's lack of knowledge and training in the law will likely result in increased costs as the litigation proceeds, either due to a true lack of knowledge, or the converse, a pro se litigant who believes they understand the law better than the opposing lawyer and court. While both tend to increase the costs of the litigation, the latter frequently manifests itself in improper, nonsensical, and/or trivial arguments and motions being made to the Court. As such filings cannot be ignored, the costs associated with responding to these tend to exponentially grow as courts often are more lenient on pro se litigants with respect to sloppy or inartfully drafted filings. For example, in the United States Court of Appeals, 2nd Circuit, Deravin v. Kerik case, the Court has stated, "Indeed, this Court has repeatedly warned that 'the pleading requirements in discrimination cases are very lenient, even de minimis.'" Furthermore, the leniency of the Courts toward pro se litigants is not solely limited to initial pleadings, but usually remains throughout the litigation, necessitating additional investment of time and legal spend in defending the claim.
Second, given the potential for increased costs of litigating against a pro se plaintiff, managing a client's expectations is crucial to facilitating an effective defense, managing the costs of litigation and reaching the ultimate resolution of the claim. Pro se litigants are emotionally charged and invested in their cases and often do not mind pouring their free time into seeking redress for the alleged wrong. Such principled stubbornness can make it extremely difficult to focus the pro se's attention on the actual merits of the claim based upon the law, thereby exposing the client to increased costs. Lawyers need to provide their clients, whether they are a self-insured or an insurance carrier, with a clear picture of the potential costs involved.
While a lawyer must avoid giving the pro se litigant legal advice, by treating a pro se litigant professionally and calmly, counsel can often enlighten the pro se to the realities of meritless motion practice and protracted litigation, thereby reducing the chances that the pro se litigant will file an unnecessary and costly applications to the Court. Effective interaction with a pro se litigant will more often than not result in a streamlining of the litigation process, which will ultimately save the client considerable amounts of time and money.
Settlement Obstacles
Pre-suit communications may not always result in the resolution of a claim. Additionally, even when faced with the costs and time of a lawsuit, the pro se litigant may not express an interest in settlement. The fact that the pro se litigant is not represented by, and therefore cannot be influenced by, counsel renders this situation unique for those opposing pro se litigants, as compared to matters involving adverse represented parties.
Though establishing rapport early on with a pro se litigant may improve the consideration given to the opposing party's counsel and that counsel's opinion of the claim and its procedural posture, mediators or judges may be better positioned to encourage a pro se party to consider settlement.
Furthermore, while a lack of desire to settle may be what the pro se litigant articulates when solicited, it may not be the reality. In response to a request for a demand, the pro se litigant or even the opposing party or counsel may only be thinking in terms of a monetary demand, whereas the settlement value of something non-monetary may need to be considered.
Finally, should a settlement be reached, it is highly important to craft a settlement agreement for a pro se litigant's execution in a thorough manner. Additionally, the settlement agreement should be fully explained to a pro se claimant by involved counsel, in order to ensure that he or she understands the terms, particularly those of non-disclosure or similar post-settlement covenants. In some cases, it may be best to videotape, or otherwise use a court reporter to record, the explanation provided to the pro se claimant by the opposing party's counsel and the pro se claimant's actual execution of the settlement agreement.
Strategies to Limit Exposure
Though facing a claim against a pro se litigant may frequently seem hopeless, there are several ways to try and limit exposure, whether for an uninsured company or an insurer. These include types of both judicial control and intervention and the propositioning of unconventional solutions.
Many pro se litigants have ample time to spend litigating their cases. One way to attempt to minimize costs is to engage in the adversary process as little as possible when appropriate. This strategy is clearly case specific, and depends upon the merits and other factors of each individual case. Once a matter is in litigation, there may be certain situations where a filing by a pro se litigant does not warrant a response or warrants a minimal one. Additionally, there may be times where the underlying merits of a pro se litigant's case are so de minimis that a limited number of affirmative or direct filings are needed. If possible, this approach may save unnecessary discovery, research, and other costs.
Additionally, the setting of mediation and/or settlement conferences is particularly important when opposing pro se parties. These conferences may enable the party opposed to the pro se litigant to achieve results not otherwise attainable in these types of pro se matters. Not only may an unrepresented party become more amenable to settling a case through such conferences, but also these meetings can aid in managing future expectations of pro se litigants.
Another judicially centered approach to limit exposure in pro se matters is one that seeks the Court's intervention. This approach may be most effective if the plaintiff is a frequent flyer before the Court. In such instances, the Court may be willing to intervene and even refuse to permit such frequent abusers of the legal system to file frivolous suits; courts may be willing to order review of the complaints of such frequent flyers before permitting those lawsuits to go forward. In cases of known abuse of the legal system by a pro se party, whether intentional or not, the Court may be the opposing party's best ally.
In addition to judicial approaches to the challenges presented by pro se parties, proposing an unconventional resolution, at any time, may also lead to decreased exposure. The pro se litigant may want to settle for a non-monetary component. Of course, this may present a hurdle to settlements in some matters. For example, this will not work in an employment matter where a party seeks only to become reemployed though no longer employable by the company for any number of legitimate business reasons. That said, this approach may work to an opposing party's advantage in others. For instance, this may be useful both in matters where the pro se litigant may not have fully considered the goals of the litigation and is open to suggestions, and in matters where the pro se party has an identifiable goal that may be easily provided by the defense. This type of non-monetary consideration may consist of something of minimal or no cost to the defense, such as a parking spot, admission into a community college class, or any number of other potentially innocuous benefits.
In other cases, the pro se litigant may be willing to settle for a very nominal amount. Proposing a settlement for even a few hundred dollars may be acceptable to certain pro se litigants. Even if the matter is in litigation and the case is mature, the timing of an offer may greatly affect a pro se litigant's willingness to accept it. If the current financial, employment, or other relevant status of the pro se litigant is known, timing an offer to coincide with the pro se's needs may render an otherwise unacceptable offer an agreeable one. In order to limit exposure in this way, the monitoring of plaintiff's current status, to the extent possible, is instrumental.
These resolution strategies may not always work, and will definitely not all work in every case. However, as an opponent of a pro se litigant or an opponent's counsel, you will never know unless you try.
Pro se litigants frequently present unique challenges to opposing parties. An understanding of these challenges is crucial in identifying how to best approach matters involving pro se parties. In certain situations, opportunities to limit exposure in these matters may be available. It has been said before, but thinking outside the box can truly help with these particular types of litigants.
Practical Tips For Dealing With Pro Se Litigants
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
