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15 GP Solo & Small Firm 26 (1998)
Avoiding Goliath's Fate: Defeating a Pro Se Litigant

handle is hein.journals/gpsolo15 and id is 232 raw text is: mm~ 26 Best of ABA Sections Trial Practice Avoiding Goliath's Fate: Defeating a Pro Se Litigant By Scott L. Garland The Parties' Strengths and Weaknesses. The pro se litigant gen- erally has one obvious weakness, lack of legal skill, and one obvious strength, guaranteed protection in some measure by the court. The lawyer has the opposite weaknesses and strengths: legal skill and credi- bility, somewhat iampered by the court's relative lack of sympathy for the attorney and the license it gives the pro se opponent. Protect Your Credibility. Many lawyers seem to think that litigat- ing against a pro se party gives the lawyer license to litigate like a pro se party. Engaging in ad hominem attacks, and speaking to the judge or the clerk about this mess we should all clear up as if you and Treat the pro se litigant with respect, do not complain or snigger about the pro se party's lack of skill, intelligence, or coherency, and avoid ex parte contacts with the court regarding the pro se litigant's position. the court stand united against the pro se party makes you look silly. By omitting legal citations, making conclusory statements, and failing to evaluate the opponents arguments and citations, the attor- ney tends to shortchange his or her legal arguments, to his client's detriment. Instead, take the pro se litigation and litigant seriously. Treat the pro se litigant with respect; do not complain or snigger about the pro se party's lack of skill, intelligence, or coherency; avoid ex parte contacts with the court regard- ing the pro se litigant's position; and make your briefs shine, rather than whine. Observe all the formalities and meet all your deadlines. When you file a motion, make sure that you later submit a quality brief, replying to your opponent's arguments against your motion. The reply brief, coming after both the opening and response briefs, is the first and often only document that deals with all the parties' arguments for and against your motion. Use the reply brief to write the court's opinion in favor of your motion. Frame the law succinctly but con- pletely, identify and limit your opponent's arguments and waiver of arguments, and explain simply why you should win. Attorneys should avoid the pre- mature motion to dismiss and shift- ing the client's burden onto the pro se litigant (which occurs often in the context of affirmative defens- es). Motions to dismiss should be and are routinely denied because of the current general scheme of notice pleading. Instead, move for a more definite statement, and move for dismissal only after the plaintiff fails to respond appropri- ately or at all. This way the pro se plaintiff is on notice of what is expected of him or her, you either get the details you need or the striking of the pleading or other appropriate relief, and you have a clean record fbr appeal. Frame the Issues as Best You Can. Move for a more definite state- ment again and again, as many times as necessary. If the court grants tie motion and the pro se litigant fails to respond, you may get sanctions or dismissal. Once the pro se party makes the pleadings as clear as possible, pin the litigant down by taking his or her deposition and sending interrogatories and requests for admissions. Use your skills of advocacy to framen the issues as best you can in a motion for sum- mary judgment. However, a danger with framing the issues with clarity is that you might give the pro se party ideas. That is, if you say Defendants understand Plaintiff to request only injunctive relief, and not damages, the attentive pro se litigant will disavow that statement and then seek damages. Avoid this by forgoing the motion to dismiss, unless you have a real- ly good shot. Help the Court Avoid Treating the Pro Se Litigant Too Abruptly. The judge's impatience may result in hasty decisions without explicit reasoning. To avoid a possible appeal and remand: (I) make your briefs complete enough to give the court a good outline of the law but succinct enough to give the court the incentive to use your brief as the basis or content of its order; (2) submit proposed orders that go beyond conclusory statements to actually apply law to facts; and (3) urge the court to observe the for- mealities to keel) the record clean.

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