This article, written by attorney Cassandra Rodgers, was originally published by the NHBR and can he found here.
There is no one-size-fits-all approach to litigation. The trajectory of litigation, like the facts underlying any dispute, is unique and dependent on a plethora of factors — perhaps most significantly, the party and/or parties acting as decisionmaker.
Nevertheless, these types of decisionmakers often follow noticeable trends. One type of decisionmaker is a party who, due to expense or otherwise, opts to represent himself/herself throughout the suit (i.e. a pro se party).
An initial sentiment that aspiring attorneys hear upon entering law school is, “We are going to teach you how to think like a lawyer.” In varying iterations, the concept encompasses this idea that lawyering involves a particularized way of thinking — a way at odds with traditional instruction on how to think, write, communicate, etc. Thus, when a self-represented party finds themselves thrust into this arena, some noticeable trends emerge and can be anticipated.
This article addresses five practice pointers for those who find themselves entangled in a dispute with a party that intends to represent himself or herself:
Expect Non-Traditional Procedure. As with learning to think like a lawyer, there exists a learning curve to compliance with court procedure. Following court procedure by the letter can prove to be a challenge for those unfamiliar with litigation, the jurisdiction or applicable local rules. As such, pleadings may be non-traditionally formatted, belatedly filed, lacking detail or excessively detailed. Historically, courts allow pro se parties a degree of latitude. A party in opposition to an unrepresented party should expect this latitude, which, at times, may extend hearing or case duration, as well as exacerbate the volume of pleadings. Allowing a pro se party some leeway without court intervention may, ultimately, prove to be the more expedient path to resolution.
Memorialize Communications. Often unrepresented parties are managing litigation in conjunction with other demands on their time. Consequently, conversations over the phone can be made in haste or without the opportunity to properly take note of the items discussed. This may lead to an evolving recollection or, in the unfortunate case, a change of position when the ramifications of a decision become more apparent. To avoid further conflict, it is often best practice to follow up any oral communication with an email memorializing the communication, any agreement reached, and expectations as to next steps. Not only does this memorialization offer the unrepresented party an opportunity to correct any miscommunication, but it evidences the parties’ exchange should conflict later arise regarding matters discussed.
Prolific Filings are Common. Those well-versed in litigation are conscious of the regularity at which inter-party agreements are reached regarding the conduct of the litigation. In contrast, as unrepresented parties are often wary of opposing counsel, agreements prove to be infrequent. For example, a communication requesting assent pursuant to court rule to a forthcoming motion may trigger a confused, passionate or disgruntled response from an unrepresented party. Therefore, even routine requests — such as a request for continuance or extension of a discovery deadline — can entail a multitude of court filings. Historically, unrepresented parties place their trust in the court to weigh in, as a neutral party, on every phase of litigation. Litigants opposite self-represented parties should plan for every motion — even those that are typically not controversial — to be challenged or, at a minimum, filed without assent.
Prepare to Stick It Out for the Long Haul. As parties representing their own interests, self-represented parties are inherently close to the facts underlying the ongoing dispute. They are often passionate self-advocates, who are both personally invested and fully dedicated to the litigation’s outcome. Unlike larger businesses, unrepresented parties often are not taking into account the management of a multitude of pending matters, public impression, or involved expenses. Rather, where the primary expense is his or her own time, a self-represented party often opts to leave no stone unturned. This mode of operating makes motions to reconsider and appeals routine. A party litigating against someone representing himself or herself should take this reality into consideration when budgeting for the anticipated cost of the litigation.
Representation Status Often Changes. Again, litigation can not only be intimidating, but confusing for those unfamiliar. It is not uncommon for an individual to initially file suit or enter an appearance as a self-represented party and later retain counsel. While in the short term this may seem to slow the progress of the dispute — with courts often allowing grace periods for newly retained counsel to get up to speed — the change may be beneficial. The change may, ultimately, avoid many of the difficulties identified throughout this article, and could aid in reaching a swift resolution.
Though none of these practice pointers is certain to be relevant to your dispute, being mindful of these trends and best practices can better prepare you or your business for the expense and demands of litigating opposite a self-represented party.