Posted Feb 04, 2013 03:00 pm CST
Have you ever had a pro se litigant demand to conduct their cross-examination from an air mattress? With more and more cash-strapped litigants choosing self-representation, there’s little doubt lawyers will find themselves across the table or aisle from someone going pro se. Guests trade war stories and offer tips in an interview with ABA Journal’s Stephanie Francis Ward.
In This Podcast:
Evan Loeffler has a real estate and landlord-tenant practice in Seattle. He’s a coauthor of the third edition Real Estate Closing Deskbook, published by the American Bar Association in 2012.
Deanne Medina, a staff attorney with Chicago’s Legal Assistance Foundation, co-runs the William J. Hibbler Memorial Pro Se Assistance Program in the Northern District of Illinois U.S. District Court.
Leah Ward Sears
Leah Ward Sears, the former chief justice of the Georgia Supreme Court, is a litigation partner with Schiff Hardin. She is based in Atlanta.
Corrected: Podcast Transcript
Stephanie Francis Ward: Lawyers often make other lawyers’ lives difficult, but the tribulations are nothing compared to what pro se litigants might bring.
Evan Loeffler: She had to be allowed to lie on an air mattress in the middle of the courtroom to do her cross examination.
Stephanie Francis Ward: I’m Stephanie Francis Ward and on today’s ABA Journal podcast we’re discussing how you can keep things professional and get the best result for your clients when opposing counsel does not have a law license.
Announcer: This ABA Journal podcast is brought to you by WestlawNext, the legal platform chosen by over 40,000 legal organizations for the tradition of editorial excellence combined with the most advanced technology. Learn more at WestlawNext.com.
Stephanie Francis Ward: Joining me are Justice Leah Ward Sears, a retired Georgia Supreme Court Chief Justice who is now a partner of Schiff Hardin; Evan Loeffler, a Seattle lawyer who has a landlord/tenant practice; and Deanne Medina, a legal aid lawyer who runs the Northern District of Illinois Pro Se Program. My first question I will have for all of you, Justice Sears if you could take this first: If you’re dealing with a pro se litigant who is being completely unreasonable, how can you as opposing counsel ensure that you remain reasonable?
Leah Ward Sears: Well, the first thing–that’s a very, very good question. The first thing is that you just have to decide that you are going to remain reasonable. A lot of pro se litigants, they fumble and bumble and some don’t know what they’re doing and some take the advantage of being a pro se to appear as if they don’t know what they’re doing. I’ve noticed over the years that the most successful lawyers dealing with pro ses never lose their temper, stay calm, let the court handle any problems. If there’s a problem you bring it to the attention of the judge and let the judge handle it.
Stephanie Francis Ward: Okay. And Deanne, what do you think?
Deanne Medina: What we find in our program is the biggest frustration for pro ses is they just don’t understand the procedural process of what they need to be doing, and sometimes just taking a minute and explaining “this is the process, this is the rule, and this is why I’m doing what I’m doing,” that that can be really helpful.
Stephanie Francis Ward: Are there times though that you might tell the person three or four times? Is it hard to get them to hear it or to accept it, perhaps?
Deanne Medina: Well, I think I’m in a different position because they’re coming to me for advice, but yes, absolutely there are some people that just don’t understand the process, the procedure. They’re going to listen to me probably more likely than opposing counsel because they’re coming to me for advice, but even then sometimes they don’t listen to me either. But I do find that that’s–I just find that that’s the biggest frustration for most pro ses.
Stephanie Francis Ward: Okay. And Evan, what do you think?
Evan Loeffler: Well, as the opposing party that has to deal with a pro se party there’s some ethical concerns involved, at least in Washington. I believe it’s the same for all the states that Rule 4.3 of the Rules of Professional Conduct has a comment on dealing with unrepresented persons. The thing that the lawyer has to be careful about is you must not say anything or do anything to imply that you are disinterested, so I frequently get phone calls or maybe I’ll be at the courthouse and the pro se party is asking me, “Well, how do I do this or what do I do now?” Probably the most common question I get is, “How do I file an answer to this complaint?” You have to be careful.
I mean, you can’t give legal advice and you must make it clear that you cannot do that. I have frequently stated you’re going to have to get a lawyer. About as far as I’ll take it is I’ll explain to them, “You’ve received two documents, a summons and a complaint, and the answer to your question is actually in the summons” and I’ll show them where the language is or read it to them. But other than that, you have to be very careful about that because it’s improper and it’s not fair either to your client or to the pro se who may feel that you’re kind of helping him out a little bit and then they get resentful and rightfully upset when you use the information, or they feel like you used information they gave you against them in a subsequent hearing.
Stephanie Francis Ward: Keeping all that in mind, do you find that being kind to the person as much as you can will pay off down the road?
Evan Loeffler: Yes, I do. As a young attorney it was generally my strategy or I would just lose my temper and say right back to them whatever they said about me or my ancestors. I quickly learned that playing that game was not professional; it didn’t help me, it didn’t help me in the eyes of the court or in front of my clients, so I would, for the most part, ignore it now and just go and either try to defuse the situation or just let the person be angry to me in front of the judge. Most of the time the judge will take care of it and remind them, “Don’t make personal remarks to counsel.” Not always. A couple of times I’ve had to remind the court that, look, opposing party is taking shots and usually at that point they’ll take over and make it stop.
Leah Ward Sears: You’ve got to be careful. Civility is very important but you have to be careful with pro ses because I’ve noticed over the years that they tend to be more likely to file sanction motions, appeals, and grievances. In our court we often call them frequent filers because they were just constantly filing. If you’re a lawyer, if you’ve not made it really clear what role in a matter is, that is to say that you don’t represent them, that you represent the other side, you could end up all wrapped up in bar complaints and that sort of thing. So, you should be kind, but you have to be very clear that you cannot and will not give them legal advice and perhaps recommend that they get a lawyer and make it clear that you can’t even make a referral of a lawyer to them.
Evan Loeffler: I teach a CLE on this on occasion with a friend of mine and my friend, he recommends that every written communication with a pro se litigant is to remind them and make the following points: “1.) I’m not your lawyer, 2.) I represent Jane Doe, the other party and I’m going to assist her in obtaining the following relief against you. I cannot, I will not give you legal advice. If you want to consult with a lawyer, here’s a way to find a lawyer, like, maybe go to the State Bar website or a referral service.”
I have struggled a lot with the other comment you made, though, about making referrals. I’ve been challenged on this that if I make a referral to, say, an attorney who I know to be an excellent attorney who may know what’s wrong with my case, my client will resent it.
On the other hand, if I send a pro se to a lawyer that I believe is not very good or completely incompetent, then pro se will resent it, believing that I sent them to somebody who was competent. So, generally what I do is I say, “Here are a couple of places where you can find attorneys but I won’t recommend any particular lawyer.”
Stephanie Francis Ward: Let’s back up a bit to what Evan was talking about. You mentioned about bringing issues to the judge. I’m going to ask this question to Justice Sears first. If you don’t think the judge is handling things in a way that’s in your client’s best interest in terms of an issue with a pro se litigant, what’s your advice on raising objections or maybe handling it other ways to get the result that you want for your client in court?
Leah Ward Sears: Gosh. Well, the first thing I would do is try to get the judge to understand the dilemma that you’re in and maybe a status conference or a chat, of course with the pro se, would be important to let the judge be very aware that you’re frustrated. This is a very hard job. Sometimes judges just aren’t tuned in to the facts of what you’re going through. Otherwise, I can’t tell you–I really wouldn’t–I’d be uncomfortable making an across-the-board recommendation because it depends on the case, you know, how many objections to make, whether to object all the time, and also, pro ses are so different.
Some pro ses really don’t know what’s going on and the stakes are not so high. Some pro ses are extremely sophisticated, know exactly what’s going on, may not be attune to the procedure of the court, but definitely are very smart and know what’s going on. So, it would depend on the case.
Stephanie Francis Ward: Okay. Do you think–and maybe this doesn’t come up a lot in your practice, Evan–but do you think if you have a pro se litigant as opposing counsel, is it harder to preserve the appeal?
Evan Loeffler: No, but you have to be disciplined about the way that you approach the [eviction] case. This also will depend on the part of the landlord. If I can indulge in another war story. I did a case last year–an eviction case takes about a month at the most, and this case took six months. The tenant was a pro se and she filed some 400 exhibits with over 3,000 pages. I was–it was a county about 100 miles away so I was commuting up there with a big box of her exhibits and they were just a mess.
The judge, this particular judge I have long said is one of the best judges in the state, if not the best, and he made sure that we had a very careful record and really required the tenant to properly introduce exhibits into the record and when they weren’t properly introduced he would give her a little bit of leeway to get them properly introduced. He made absolutely sure that I made my objections on the record the way that the book says that you’re supposed to. He would yell at me when I didn’t stand and button my suit jacket first and let the pro se get away with quite a bit.
It all worked out to the benefit of my client, because when we got the ruling he noted he had a page of “here are all the reasonable accommodations that the pro se defendant requested and the court granted every one.” And he did. The reason why it took six months was because she continued to ask for continuances and she was claiming various disabilities, she had to be allowed to lie on an air mattress in the middle of the courtroom to do her cross examination because she wasn’t feeling well that day. He made a record on his own to make sure that the record was good in case of an appeal, and actually, the defendant surprised everybody by not filing an appeal, which we all fully expected based on what she had done to that point.
Stephanie Francis Ward: Deanne, you mentioned that most of the people you work with are plaintiffs. What are the most common areas in your court that you see pro se litigants?
Deanne Medina: Well, in Illinois it’s employment discrimination just because our state laws are not great, so the federal laws tend to be the ones that most employment lawyers want to file under. So, in our program, I think statistically it’s about 70 to 75 percent are going to be under some form of employment discrimination, and then second to that is going to be 1983 constitutional violation cases. I think statistically for the court, our particular court in Chicago, the prisoner cases are the highest number of pro ses, but our program doesn’t work with the prisoner cases, so in our program it would be employment discrimination and the civil rights. Then in the last year we’ve seen an onslaught of foreclosure cases.
There’s a couple firms in Chicago because of some of the moratoriums we’ve had here on foreclosure cases in the state court system, they’ve been coming to federal court because it’s a faster process and it’s cleaner, frankly. So, we’ve actually–that’s been a real interesting thing because I know nothing about foreclosure. We’ve been doing a lot of training trying to get up to speed on that because that’s just something we weren’t prepared for.
Stephanie Francis Ward: I would imagine the rules are different than they would be in state court.
Deanne Medina: It’s very different. Actually–
Stephanie Francis Ward: Especially if you’re representing yourself.
Deanna Medina: Right, it’s–you know, because there’s all these defenses to foreclosure. I have to say–this is really horrible to say, but I had a little fun when they were first filing because they were not following the rules of civil procedure and we were getting a lot of stuff stricken and dismissed. Now they’ve figured out what they’re doing so it’s gotten better, but there was–I did a little–
Evan Loeffler: Yeah, the rules changed after the Protecting Tenants at Foreclosure Act was passed. There were a lot of cases that just got bounced out immediately as a result.
Deanne Medina: Yeah, well this was just the federal and civil procedure. We have our own local rules, we do things strangely here on certain motions and they just weren’t following procedurally so we had some fun with that, but they quickly figured it out.
Stephanie Francis Ward: On that note, I’m curious Deanne, do you see situations where lawyers they might try to railroad a pro se litigant and it backfires on them perhaps?
Deanne Medina: Sometimes. It actually still surprises me when I see lawyers taking advantage of some of our customers. I had one guy in particular that I’d been working with for a couple of years, very intelligent. In fact, I’m trying to encourage him to go to law school because his mind just works in such a way. But to look at him you would never guess that this guy was as bright as he was. He just didn’t physically come across as, you know–
Stephanie Francis Ward: But that could be a very good tactic if you’re a lawyer.
Deanne Medina: It can. So, they sort of assumed, made assumptions about how intelligent he was based on the way he looked and he has–you know, it’s a great case. He argued it very well. The judge–I have found in my experience, particularly in a federal court, that if you follow the rules and you are respectful of the court and the court’s time and the process that the judges are really, really going to do everything they can to help you. I mean, to the limited extent that they can. They’re going to listen to you more, they’re going to be more respectful. I don’t think that’s true so much, at least in Chicago in the state court system, but over here if you–and that’s what I tell people all the time.
If you follow the rules and you do what I tell you to do and you listen to the judge, you’re going to be okay. You may not win but you’re not going to get in trouble. But, it always astonishes me when people will come in and say, well, the lawyer told me this and I’m like, “That is not true, that is not even remotely true.” I’ll be like, “Well, maybe that’s not what they said,” and they’re like, “Oh, here’s the letter.” I’ll look at it and just be astonished, you know, the stuff they’re telling some of these pro ses is just out and out wrong.
Leah Ward Sears: Who is giving the advice, the opposing counsel or–?
Deanne Medina: Well, you know, just the opposing counsel will say something like “you can’t get compensatory damages under this statute” and it’s like, that’s absolutely not true, or “you can’t do this type of thing, that’s not how the rule is.” It’s just bizarre some of the things that they’ll tell them they have to do. It’s actually one firm in particular I’ve noticed that it’s sort of a trend.
Evan Loeffler: Yeah, it could be one firm or one attorney who either doesn’t know any better or is trying to gain an advantage.
Deanne Medina: They’re just trying to gain an advantage, yeah.
Stephanie Francis Ward: It could be they don’t know.
Deanne Medina: I’ve worked with this particular firm before, so I think they’re trying to get an advantage.
Evan Loeffler: But I think that we can all agree that that’s just unethical.
Deanne Medina: It is.
Leah Ward Sears: I agree.
Evan Loeffler: I mean, but you see attorneys tell each other stuff [inaudible] also, and that’s unethical but I would say that maltreating an opposing party is bad enough–but to actually take advantage of the fact that you’re a lawyer and the other side is not just sort of underscores how unethical it is. I don’t know if it’s more unethical, but to the extent that you’re giving legal advice and saying, “You should strike this because you’re not allowed to do it,” that’s a violation of Rule 4.3.
Deanne Medina: Yeah. It always really surprises me when I see it because I just assume most lawyers are going to follow the rules of professional conduct, but I mean, it’s–you know, it doesn’t happen very often, but there are definitely moments where–or they just do something that, maybe it’s not a full on ethical violation, but it’s just shady. There’s just something, like, well that’s not really how that–I mean, they’ll tell the pro se something that’s not completely inaccurate but really not maybe the practice of this court or the practice of this area of law or whatever.
Stephanie Francis Ward: But there’s nothing under the Rule of Professional Conduct that they couldn’t be shady like you’re mentioning, right?
Deanne Medina: Exactly, yeah.
Stephanie Francis Ward: Okay. I’m curious too, Deanne, if an attorney is in a court that has a help desk like yours and they’re having problems with the pro se, would it be helpful for that lawyer to speak with the person at the help desk who’s been working with the pro se?
Deanne Medina: I think it depends on the help desk. Our help desk is a true advice desk. We don’t represent the pro se people but we do create an attorney/client relationship for the 45 minutes that they’re in our office, so I will not speak to opposing counsel on a case just because I can’t. It’s not something that–I have to say I have, I think in maybe one or two cases, I have called opposing counsel when I’ve been confused by something and said “what is this particular thing” or “do you know the date for this?” Something technical, but when it’s not clear either from the record or from the customer. In five years, four and a half years, I’ve maybe done that once or twice and those were on real extreme situations, but I would not talk to opposing counsel.
Stephanie Francis Ward: Okay. The other thing that I wanted to ask all of you about is what is your advice on client management when opposing counsel is a pro se litigant? How do you keep your client calm and maybe understanding that things may not go as quickly as they had planned? Justice Sears, do you want to take that first?
Leah Ward Sears: Yeah, I think the best thing to do is work with your client in advance. Try to explain how the process goes so when they go to court they understand what’s going on so that there are no bad expectations, so that everybody understands we’re with a pro se litigant, this might be a little bit more difficult. Sometimes the judge might bend over backwards, you can understand this, or sometimes they won’t and you just keep the communication going so that you can make them stay calm.
Stephanie Francis Ward: Okay. Evan, would you like to add something to that?
Evan Loeffler: I think to reiterate what Justice Sears said, it has to do with managing client expectations. Sometimes it’s good for your case when you’re dealing with a pro se litigant because they’re practical and they’re not going to file a whole bunch of nonsense, or maybe because they just have no idea what to do and they’re just hoping that the judge will be nice to them if they’re nice to the judge. Sometimes you have pro ses–just like the same way sometimes you have opposing counsel–who are going to engage in dilatory practice and make the case take longer.
I am regularly just updating my clients on “here’s what to expect, here’s what’s going on,” and before we go into a hearing I tell my client, “Here’s three things that can happen. We can win, we can lose, or the case is continued and I don’t know what’s going to happen until the judge tells me.”
I don’t necessarily treat pro se cases differently than I do cases where there are attorney’s involved, but I do try and keep my client advised as to exactly what’s happening and they’ll see the pleadings, when I get them anyway.
Stephanie Francis Ward: All right, and I think that’s everything that I have for today. Does anyone want to add anything else?
Deanne Medina: I –
Evan Loeffler: I was going to–oh I’m sorry, go ahead.
Deanne Medina: I was just going to say that the one thing that–because I am sort of the pro se advocate, the one thing that I try to express particularly when I speak to judges in our district is that there is this stereotype of what a pro se person is and that–you know, I actually was talking to a judge one day and she said, “oh, the foil hat wearers, the tin-foil hat wearers,” and I was really taken aback by that, because I think there’s definitely a component where you’re dealing with mental illness a lot of the time when you’re talking about pro ses, but I think more and more, particularly as the economy has become troublesome and like Evan was saying, there’s a lot of people–or I think as Justice Sears was saying, you can’t afford an attorney.
Maybe you’re working full-time but you’re not in a position to pay for an attorney, or as Evan was saying, if you’re getting evicted that means you can’t pay your rent which means you probably can’t afford a lawyer. The assumption that they don’t have a case or the assumption that they have mental illness or are going to be difficult is an assumption, and it’s not always accurate. I’ve worked with so many people here. We see over 1,200 people a year in our program and I am amazed at the level of competence of some of these pro ses.
Now, of course, you have your people with mental illness, and I’m always amazed by that too, but there’s definitely–that stereotype, I think, is changing and needs to change so that people understand that these are people that are–maybe they don’t have law degrees, but they are intelligent, they are able to comprehend certain things, that they’re not always going to be as difficult, or maybe they are, but generally it’s just not the same, I think, as it has been in the past.
Stephanie Francis Ward: All right. Well, thank you all so much for your time; I appreciate it.
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Updated on Feb. 6 to correct the spelling of Evan Loeffler’s name.