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On pro se litigants

Because I represent landlords, I frequently come into contact with pro se litigants. Usually, these are tenants who have been sued by my client for failure to pay rent or holding over or breaching the lease. Occasionally, though, a tenant will bring a suit pro se against one of my clients and I will be asked to defend it. These matters are usually more difficult than when there is an attorney on the other side.

As it happens, I’ve been involved in several of these cases in the last few weeks, so — perhaps naturally — I’ve begun to think about the reasons for the difficulty.

First, a major difficulty is that a pro se litigant is almost always emotionally invested in the subject of the litigation. In the examples above, at issue is the litigant’s home or behavior or security deposit. Winning or losing has an actual, immediate — and sometimes, extremely detrimental — effect on the litigant. On the other hand, I work for a client, so even though I want to do a good job for my client, I simply do not have the personal, emotional investment in the outcome of the case. This also means, of course, that it is easier for me to look at the case objectively and advise my client on strategy, i.e. when settlement makes sense.

I also have the ability to manage the client’s expectations by telling him or her up front if I think that we could lose the case. The pro se tenant’s connection to the case, on the other hand, often manifests itself in a steadfast refusal to settle a case for good value because of the intense personal involvement in the facts of the case. Downstream, the refusal to settle can lead to the tenant losing the case or getting a judgment with significantly reduced damages.

Second, a pro se litigant often doesn’t know the rules and focuses on facts that are irrelevant. In a suit for damages where an eviction had already occurred, a pro se tenant was dead set on testifying about the circumstances of the eviction down to the last detail because she felt personally aggrieved at having been evicted. Ultimately, these facts didn’t matter, so I objected each time this tenant tried to offer the testimony. It wasn’t clear to the tenant that these facts didn’t matter, so she became extremely frustrated when my objections were sustained.

A different pro se tenant, in trying to argue his case, continually attempted to offer hearsay testimony, to which I also objected. Again, this was extremely frustrating to him because he didn’t understand hearsay (the judge tried to explain it) and why he wasn’t permitted to testify as to what someone else said.

Third, pro se tenants do not trust opposing counsel. These litigants almost always believe that I am trying to put one over on them. This could be because I am a fast talker or because I represent the opposing side. However, I make it a point to always treat the opposing party, whether a pro se litigant or another attorney, with the utmost respect.

For example, in both cases referenced above, I made a good settlement offer before the trial and explained to the litigant that I was making it pretrial but would withdraw it as soon as trial began. I also advised each tenant that he should take the deal because I did not think he had admissible evidence to support his claim. In each case, the tenant received a judgment, but it was less than what I had offered.

Finally, pro se litigants are, I think, brave and determined. It is a scary thing to go into court over something to which you are emotionally attached, especially when you don’t know the rules and don’t trust the people with whom you have to interact and negotiate. Our judicial system, too, is to be commended for permitting pro se litigants to bring and defend cases. Our system is not perfect, but it is unbelievably impressive in many ways. This, I think, is one of them.