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Source: http://www.lacba.org/Files/LAL/Vol24No5/1030.pdf

Coping with a Pro Per Litigant By Lorin Snyder People who represent themselves in a lawsuit tend to see things in black and white No matter what your area of practice, you will almost inevitably someday contend with a party representing himself or herself in pro per. Attorneys opposing a pro per litigant will typically — irrespective of the litigant’s degree of legal sophistication — find themselves obliged to either modify the manner in which they litigate or risk being less effective in the representation of their clients. For example, most attorneys take relatively direct communication with opposing counsel for granted. Litigators dealing with pro per litigants will, however, often need to adapt to the pro per’s sense of vulnerability to the manipulations of a crafty attorney. Pro pers often will offer only sketchy contact information, such as a post office box. As a result, attorneys facing pro per litigants must make an effort to secure the pro per’s domicile address and direct telephone numbers. If the pro per has a facsimile number, try to obtain it. Sometimes the litigant will send a letter via facsimile and forget that the sender’s facsimile number is printed on the document or cover page. Pro pers often send facsimiles in the evening. Do not be surprised when you arrive at work in the morning to find newly arrived faxes dated on the day before. Additionally, a pro per may interpret your willingness to send and receive letters by fax as a willingness to accept service of other documents by fax as well. If you are served by fax, advise the pro per that this is invalid unless agreed to previously in writing. If the pro per gives you a telephone number, it is typically not a direct line. You may encounter a voice mail system or some other maze. If you are fortunate enough to speak with a person, he or she may prove to be a receptionist who, after being advised of your identity — whether you call in the morning, afternoon, or evening — says that the person you seek is unavailable. This can prove troubling when it is necessary to get an immediate response from the opposing party or when giving notice of an ex parte application before the court. At these times, a facsimile number can prove extremely valuable. The difficulty that an attorney may face in simply reaching a pro per reflects the pro per’s distrust of the attorney, so it is understandable that once reached, a pro per may still be difficult to talk to. In a pro per case, the opposing party is personally involved. Every allegation in the pleading is a matter of personal consequence. As a result, even the most elementary communication can quickly escalate into a battle of words. Although every attorney will vigorously defend a client’s position, there is generally a sense of decorum when discussing the pros and cons of any particular issue. However, when dealing with a pro per litigant, a relatively innocent comment can turn into an argument during which all hope of accomplishing your goal vanishes. For this reason, take extreme care when attempting to persuade pro pers that their stance is erroneous, no matter how fallacious their arguments may be. You might find that your ability to discuss even the most mundane issues can be compromised if you offend a pro per’s sense of who is right and who is wrong. Also be aware that the common courtesies that are often exchanged between opposing attorneys are most likely not going to be offered by a pro per litigant. For example, an extension on a deadline to respond to written discovery may be difficult or impossible to get without intervention from the court. The pro per litigant will likely equate the granting of an extension with showing weakness. Most pro per litigants have no idea that extensions are routinely granted as a professional courtesy. Moreover, the court will, in all but the most egregious instances, grant the first request for a reasonable extension. Pro per litigants commonly believe that litigation mirrors what they see on television, in which the side that is more unreasonable and ruthless wins. This can prove troubling in the real world. As a result of these difficulties with extensions and other routine business, a case with a pro per opponent can entail more court appearances than usual, and these bring their own set of obstacles. One is the perception that, by going to the judge, the attorney is beating up on the pro per. If you find that the pro per is taking an unreasonable position, it may be a good strategy to bring motions to make the court aware that the pro per is not acting in good faith. Most of the motions and ex parte applications that you file to bolster your contention that the pro per is acting in bad faith will be based upon declarations. For this reason, take great care in drafting them. It is also good to exceed the minimum notice requirements. The court will no doubt appreciate your extra effort in dealing with a pro per litigant. For example, when giving ex parte notice, consider giving it several days in advance and confirming with telephone calls. When appropriate, send at least one letter by facsimile. Document the date and time of each communication. Do not be surprised if you are confronted with the “I did not receive your notice” excuse. If you need to bring a motion or ex parte application, mention the difficulties you have had contacting the pro per litigant and ask for a confirmation of the address and telephone number on the record. In short, the best strategy is to treat the pro per litigant with respect and dignity. As a professional, you are able to help create the conditions for future communication or, when appropriate, a procedural dismissal. Lorin Snyder is a member of the Barristers Executive Committee. LOS ANGELES LAWYER / JULY-AUGUST 2001