Uneven Ground: Legal And Practical Considerations For Defending Against Pro Se Plaintiffs

As a defense lawyer in the twenty-first century, it may seem like every litigant has "lawyered up," and that everyone has at least one lawyer programmed into their speed-dial directory. However, particularly in large-scale class actions and mass tort litigation, it is highly likely that you will one day find yourself defending your client against one, or more likely, hundreds of unrepresented claimants and pro se plaintiffs.

Statistics

In order to fully comprehend the implications of dealing with unrepresented individuals, it is helpful to understand the statistics surrounding pro se litigation. According to the Federal Courts Statistics Division, for the 12 month period ending September 30, 2012, Federal Courts reported a total of 77,703 civil pro se cases, representing 27.9% of the 278,442 total civil filings. The 9th Circuit reported the largest number of pro se filings with a total of 17,400.

In the event that you are defending your client against an unrepresented individual, whether in litigation or otherwise, there are a number of legal and practical considerations you should keep in mind to ensure that you are fully prepared for the potential consequences of your adversary's seeming lack of sophistication and legal experience. The following discussion is not intended to be a complete recitation of the law in any of these areas; many of these issues have been extensively discussed in the case-law and should be researched independently.

1. Know your adversary.

   Although the majority of pro se plaintiffs are likely to lack legal acumen or experience, that may not always be the case. Some pro se plaintiffs may have assistance from an experienced attorney, whether through a family member or non-profit legal services organizations. See, e.g., Gross v. Guzman, et al., Case No. 11-23028 (D. Fla. Oct. 9, 2012) (denying Defendants' motion to strike for fraud because the "competent quality of a party's pleadings is not a basis for striking them."). While some states' ethical rules prohibit licensed attorneys from ghostwriting pleadings for pro se plaintiffs, it is generally permissible for attorneys to provide advice and counseling to pro se litigants. See, e.g., Mass. Bar Ass'n. Ethics Opinion No. 98-1 (allowing limited representation without appearance but prohibiting ghostwriting of pleadings). If an attorney aids by drafting pleadings, some states' ethical rules require the attorney to indicate that the document was "prepared with the...