Unrepresented litigants file 10% of civil cases in federal courts and an even higher percentage of civil cases in state courts. For lawyers, these cases can present a multitude of complications, even more so if your pro se opponent is mentally or emotionally unstable. I recently participated in a panel discussion for the ABA Judicial Division on ethically handling unstable pro se litigants, along with several judges and a psychiatrist who works regularly with the judiciary. We discussed a number of ways lawyers (and courts) can effectively and fairly deal with these litigants.
Talk to them right away. Consider giving the pro se plaintiff a phone call as soon as possible and give him a chance to vent. Perhaps you can diffuse the situation and avoid litigation. Once a complaint and answer are filed, there may be no turning back. These cases are often lengthy and expensive.
Watch your tone. It's best to minimize phone conversations with pro se litigants (other than as suggested above) to avoid misunderstandings. In communicating by any method, resist the urge to argue. Show empathy for their predicament but explain that the law may not offer a remedy. Maintain courtesy and professionalism at all times. Always guard against providing legal advice.
Involve the court. An early status conference can give the court an opportunity to interact directly with the pro se party, addressing the seriousness of the party's claims and the legal process. The court can also assess any special attention the case may warrant. Pro se parties often benefit from the opportunity to air their complaints to the judge in court, even if just in an informal conference. Similarly, early settlement conferences can be effective, particularly if a judge (e.g., a magistrate) can serve as mediator. Low-cost or free mediation services may also be available.
Pick your battles. When opposing a pro se litigant, it may be tempting to seek dismissal on every possible ground or even pursue sanctions or contempt. Consider that a win on the merits of the case may be the best strategy for your client and the court, rather than defeating the pro se party on a technicality. Heavy-handed treatment could also cause an unstable party to retaliate by filing additional claims against your client, attorneys, and even the court.
Aid the court. Unstable litigants are the #1 threat to the safety and security of judges. If you perceive a potential threat, advise court staff in advance of a hearing. In your written filings, assist the court by simply and directly addressing all the issues potentially raised by the pro se party's pleadings. Again, avoid picking unnecessary fights that might lead an unstable litigant to retaliate against you, your client, or the court.
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