Litigating against a self-represented adversary

jeremy-rachlin-revAn observation from my own practice and a common experience as related to me by my colleagues is an uptick in cases with a self-represented party on the other side. Litigating against a self-represented party can bring an additional challenge.

For the sake of my Generation J.D. readers, I respectfully suggest four tips I try to keep in mind when I’ve got a self-represented party on the other side of a matter:

1. Remember your ethical obligations.

I could (and maybe should) start and conclude with this point. Simply put, make certain you familiarize yourself with Rules 4.1 through 4.4 of the Maryland Lawyer’s Rules of Professional Conduct (codified at Maryland Rule 19-304.1, et seq). These rules provide you with the ethical framework through which you must approach all dealings with a self-represented party. Read these rules, read the comments to the
rules and commit them to your heart and brain.

2. Limit communications to writing to the extent possible.

From a more practical perspective, I suggest that communications with self-represented individuals should, to the extent possible, be in writing (letter or email). While many of us may have a more informal relationship with opposing counsel in a case, remember that opposing counsel is also bound by the Maryland Lawyer’s Rules of Professional Conduct in their dealings with you. Opposing self-represented parties are not.

While we may have frequent phone calls with opposing counsel which we do not memorialize into writing, I suggest limiting phone calls with opposing self-represented parties if for no other reason that these verbal conversations can be misconstrued or misunderstood. If you do have a phone call with an opposing self-represented party, you may want to consider sending a confirmatory email message summarizing the conversation and inviting the opposing party to correct the record if they feel that your summary misstates the conversation.

3. Remember that you are still an advocate for your client.

Clients can be extraordinarily frustrated when they perceive the opposing self-represented party as skating through litigation without the pain of legal fees. It is critical to reassure your clients that, although from time-to- time it may seem as if we are guiding all sides through litigation — which may indirectly benefit the self-represented opponent — strategically and tactically we always have our clients’
best interests in mind. And don’t let the fact that the other side has opted to proceed on a self-represented basis take you off track from filing whatever tactical motions may be necessary, such as motions to compel discovery, motions in limine, and/or dispositive motions.

4. Choose civility.

In my personal experience, often there is some level of animosity between my client and the opposing self-represented party. I simply cannot and will not allow that animosity (whatever the source and however well-earned) poison the waters between me and the opposing self-represented party. Even if the opposing self-represented party is nasty to me in an email, I will send back a perfectly pleasant
(though often succinct) response focusing on only those points that warrant attention because they bear on the trial of the matter at hand.

Keep in mind the likelihood the opposing self-represented party at some later date will present a string of email communication you and them to the motions or trial judge to try to prove a point. Even more importantly, often the calm and rational attorney who does not carry the same level of angst as his or her client can lead to a temporary cooling of the minds so that the matter can be resolved short of trial.

What strategies do you employ when dealing with a self-represented adversary?

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