The Care and Feeding of Self-Represented Plaintiffs

By Suzanne Feffer, Esq.

Seems easy enough:

Defending a case against a plaintiff in pro per who likely has little or no knowledge of civil procedure — let alone the law that will govern the claim at issue — would not seem to be much of a challenge.

Guess again.

Self-represented plaintiffs have two important characteristics that will make defense of the action far more difficult:

1. They are generally passionate about their claim (often willing to pursue it when attorneys will not), and
2. they are very likely to be afforded the benefit of the doubt in all legal proceedings.

When taken together, these factors often converge to generate protracted and expensive litigation.

Self-represented plaintiffs are often extremely passionate about their claim.

So how does one effectively handle a self-represented plaintiff?

Mindful of the personal commitment held by a pro per plaintiff, it is advisable to give them an opportunity to tell their story. While it can be trying to depose a plaintiff without counsel, that will provide plaintiff with the forum to vent his or her anger about how the defendant is at fault for the claimed injuries or damages. It will matter little to an in pro per plaintiff that the law provides no remedy, but a sensitive response to plaintiff’s claims may open the door to settlement negotiations. Even a modest settlement may prove to be vindication for a plaintiff who feels “wronged.”

“Trial counsel must work to avoid appearing to ‘beat up’ on plaintiff.”

As the trial date approaches, defense counsel will probably be expected to generate required joint pre-trial documents, prepare trial and exhibit binders, and explain to the court why all requirements of any pre-trial Orders have been met, even if the reason for that is the failure of plaintiff in pro per. Questioning a self-represented plaintiff on the stand is awkward and trial counsel must work to avoid appearing to “beat up” on plaintiff.

Pro Per Problems

Even though a self-represented plaintiff may not understand the law on point, the court will.

Perhaps the most frustrating aspect of the defense of these claims is that despite the fact that self-represented parties are held to the same legal standards as all counsel before the court, in practice, pro per plaintiffs will be given several opportunities to correct their errors or deficient pleadings. There is little point in filing a demurrer to a poorly drafted Complaint as a plaintiff in pro per will likely be given numerous chances to amend with clear instructions each time about the changes required. A Motion to Dismiss for Failure to Comply with a Court Order will likely be met not with an Order of Dismissal, but instead, with another chance to comply.

However, there is light at the end of the (expensive and time-consuming) tunnel. While the court may go out of its way to accommodate a pro per plaintiff up to the time of trial, the fact remains that even plaintiffs in pro per must do what is necessary to secure witnesses (i.e., trial subpoenas or Notices to Appear), introduce evidence, and avoid hearsay objections. Moreover, even though a self-represented plaintiff may not understand the law on point, the court will and, after plaintiff closes his or her case, a non-suit may well be granted.

Patience and a sympathetic ear will go a long way toward resolving a claim brought by a self-represented plaintiff. Add to that the expectation of a rather liberal view of the application of the Code of Civil Procedure and one just might keep their sanity.

The attorneys at Stone | Dean are experienced litigators who have handled & settled thousands of cases in their respective careers — including cases against plaintiffs in pro per. If you or your business is on the wrong side of an adverse claim or lawsuit, contact the legal experts at Stone | Dean or find out more about our firm by clicking here.