North Carolina Central Law Review

Volume 30
Article 3
Number 2 Volume 30, Number 2

4-1-2008

Strategies for Dealing with Self-Represented

Litigants
Jona Goldschmidt

Follow this and additional works at: https://archives.law.nccu.edu/ncclr

Part of the Litigation Commons

Recommended Citation
Goldschmidt, Jona (2008) "Strategies for Dealing with Self-Represented Litigants," North Carolina Central Law Review: Vol. 30 : No. 2
, Article 3.
Available at: https://archives.law.nccu.edu/ncclr/vol30/iss2/3

This Article is brought to you for free and open access by History and Scholarship Digital Archives. It has been accepted for inclusion in North Carolina
Central Law Review by an authorized editor of History and Scholarship Digital Archives. For more information, please contact [email protected].
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

STRATEGIES FOR DEALING WITH

SELF-REPRESENTED LITIGANTS

JONA GOLDSCHMIDT*

The numbers of self-represented litigants (SRLs) has been rising

steadily since the late 1990s, both in the U.S. 1 and in the Common-
wealth countries.2 At one time, SRLs were found primarily in traffic,
criminal, landlord-tenant, and small claims courts. While precise data
on the distribution of SRLs across courts and case types is sparse, the
existing data show a growing number are now finding their way into
family courts for divorces or post-judgment relief.3 Courts as an insti-
tution have met this challenge and adopted a variety of strategies,
such as instructional clinics, simplified court forms, video-taped intro-
ductions to the court system, and self-help centers,4 to aid SRLs in
participating in the litigation process.
* Jona Goldschmidt, Ph.D., Arizona State University, J.D., DePaul University College of
Law, B.A., Univeristy of Illinois-Urbana. Dr. Goldschmidt is an associate professor in the De-
partment of Criminal Justice at Loyola University Chicago where he may be reached at jgoldsc@
luc.edu.
1. See Ayn H. Crawley, Helping Pro Se Litigants to Help Themselves, http://www.courtinfo.
ca.gov/programs/cfcc/pdffiles/HelpThemselves.pdf, (collecting U.S. trend data, and stating that
"[i]t is the common experience of most court system [sic] in the United States that there has
been a rising tide of pro se litigants flooding a justice system designed, in large part, for the
traditional full representation model."); Madelyn Herman, Self-Representation: Pro Se Statistics,
(March 25, 2006) http://www.ncsconline.org/WC/Publications/Memos/ProSeStatsMemo.htm
(hereafter Pro Se Statistics) (collecting data on SRLs in state, state appellate, federal courts, and
remarking that "[c]ourts are continuing to see an increase in the numbers of litigants who re-
present themselves. Self-represented litigants are most likely to appear without counsel in do-
mestic-relations matters, such as divorce, custody and child support, small claims, landlord/
tenant, probate, protective orders, and other civil matters").
2. See Richard Foster, Australian Experience with self-represented Litigants (SRLs) - A
Family Court Perspective, 21st Meeting of the Austl. Inst. of Jud. Admin., Freemantle, Western
Australia, Sept. 19 - 21, 2003, http://www.aija.org.au/ac03/papers/RichardFoster.rtf ("Self-repre-
sented litigants are indeed a growing phenomenon in Australian courts and are no doubt here to
stay. While we still do not have an accurate picture of the numbers, we know they are increasing
in all jurisdictions."); CBCNews.Com, Self-Representation Causing Chaos in Courts: Chief Jus-
tice, Aug. 12, 2006, http://www.cbc.calcanadalstory/2006/08/12/court-representation.html,
("Nearly half of Canadians are choosing to represent themselves at trial because of steep legal
fees, creating a lack of acceptable representation, the country's top judge said Saturday.").
3. See Herman, Pro Se Statistics, supra note 1 (reporting data showing SRLs in some coun-
ties make up 81 percent of divorce litigants in Utah, 58 percent in Iowa, 70 percent in New
Hampshire, 73 percent in Florda, 72 percent in Wisconsin, and 75 percent in Boston).
4. See www.selfhelpsupport.org, a clearinghouse for information about pro se assistance
programs and the National Center for State Courts, Access and Fairness: Self-Representation
Resource Guide, http://www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=ProSe
(collecting a wide range of materials, including program information from many jurisdictions).

Published by History and Scholarship Digital Archives, 2008 1

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3
2008] SELF-REPRESENTED LITIGANTS

The flood of SRLs in our courts is expected to increase even further

as a by-product of enhanced means of access to justice. While this
causal relationship has not been empirically tested, the National
Center for State Courts 5 reports that it is now receiving more informa-
tion requests about self-representation and the legal process from in-
dividuals and the media than from its traditional clients, the courts
and court administrators.6
Although courts have implemented policies, programs, and organi-
zational changes to handle the growing number of SRLs, little gui-
dance has been given to attorneys to prepare them for their inevitable
interactions with this new kind of adversary. In this brief discussion, I
present some practical strategies for attorneys who may oppose an
SRL on behalf of their clients. But before presenting these strategies,
it is useful to keep in mind that there is no one type of SRL. Thus,
any suggested strategy must be adapted to the nature of the SRL
against whom one may be litigating.
The existing literature on the subject appears to have been written
based upon the authors' frustrating experiences litigating against
SRLs in federal courts,7 which is not where most SRLs are found.8 It
is possible that SRLs in federal courts-with the exception of bank-

See also Jona Goldschmidt, Barry Mahoney, Harvey Solomon, & Joan Green, MEETING THE
CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR JUDGES AND COURT
MANAGERS 72-104 (1998) [hereafter, MEETING THE CHALLENGE] (describing fourteen pro se
assistance programs).
5. The mission statement of this non-profit organization in Williamsburg, Virginia, states,
inter alia, that "[t]hrough original research, consulting services, publications, and national educa-
tional programs, [the] NCSC offers solutions that enhance court operations with the latest tech-
nology; collects and interprets the latest data on court operations nationwide; and provides
information on proven 'best practices' for improving court operations." http://www.ncsconline.
org/D.About/index.htm (last visited January 31, 2008).
6. William Downs, Where We've Been: Pro Se Information Trends, http://www.ncsconline.
org/WC/Publications/Trends/2004/ProSeWhereTrends2004.pdf:
As AOCs [administrative offices of courts] develop more comprehensive and effective pro-
grams for pro se litigants, more people will decide to go to court pro se. Naturally, this will
increase the public interest in pro se litigation and the amount of media devoted to pro se
litigants. These changes will shift the issues the courts will have to address in the future to
include dealing with larger numbers of pro se litigants and fine tuning their programs so that
no pro se litigant is denied access to justice. The National Center should expect more infor-
mation requests from private citizens asking for legal assistance, legal information, or infor-
mation on unbundling as going to court pro se becomes easier and more acceptable. The
AOCs and court staff members will make more information requests about ensuring access
to the larger and more diverse group of people who are pro se litigants.
7. The best articles (and the only ones I have found) on the subject are Cornelius D. Hel-
frich, Facing a Pro Se Litigant, THE COMPLEAT LAWYER 41- 43 (Summer 1997); Scott L. Gar-
land, Avoiding Goliath's Fate: Defeating a Pro Se Litigant, 24 LITIG. 45-67 (Winter 1998); and
Paul B. Zuydhoek, Litigation Against a Pro Se Plaintiff, 15 LITIG. 13, 15 (Summer 1989).
8. In 2006, of all pro se cases filed in the federal courts, only 19,468, or 28 percent, were
filed by non-prisoners. Admin. Office of the U.S. Cts, 2006 ANNUAL REPORT OF THE DIREC-
TOR, Table S-24, Civil Pro Se & Non-Pro Se Filings, by District, http://www.uscourts.gov/judbus
2006/tables/s24.pdf (Data showing the distribution of SRLs across case types is not reported).

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 2
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants
132 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

rupts-are mavericks, a "special breed" of SRL who are willing to navi-

gate the labyrinth of federal court rules and procedures for some
personal cause or political agenda. These SRLs are often lumped to-
gether by judges and court staff into the category of "pests" or
"kooks." 9 As one commentator who litigated against one of these
SRLs put it, "Most lawyers would volunteer to be flogged with a cat-
o'-nine-tails before offering to try a case against an unrepresented liti-
gant.""t Another commentator noted that prevailing against an SRL
"will admit you to a special club of paranoid trial lawyers: those who
appreciate the difficulties of pro se litigation."'" Federal court liti-
gators who have encountered litigious SRLs may be able to relate to
the following characterization:
Pro se plaintiffs usually are zealots, adopting tactics for which lawyers
would be sanctioned. They forum-shop with glee, file multiple frivo-
lous motions and appeals, refuse to respond to discovery requests, and
try to extort settlements. But-and this is the source of much frustra-
tion-judges justifiably tolerate such conduct and stretch whenever
possible to assist such plaintiffs. In this environment, traditional de-
fense strategies likely will fail. Blunders and miscues that would be
fatal for a represented plaintiff will not necessarily doom12a pro se liti-
gant. Defense attorneys must revise their usual tactics.
The reality, however, is that the average SRL in state court is not a
"pest" or "kook." The available data on the characteristics of SRLs
show that these litigants are generally from a lower income bracket,
tend to be young, and have some college-level education.' 3 They are

9. MEETING THE CHALLENGE, supra note 4,at 60.

10. Helfrich, supra note 7, at 41.
11. Zuydhoek, supra note 7, at 61.
12. Id. at 14. The litigant against whom attorney Zuydhoek defended against was a "Rever-
end Jackson, a non-lawyer who claimed to have a law degree from a correspondence school." Id.
at 13. As SRLs go, it is safe to say that the most litigious are likely to be those with some legal
experience. The description of this litigation with Rev. Jackson would place him in the "kook"
category, which is not the typical pro se litigant. Zuydhoek further describes such litigants, with-
out distinguishing the "kooks" from all other SRLs, as having certain "predictable
characteristics":
Their allegations have no merit; either they obviously fail to state a claim or the claim has
no factual foundation-or one firmly grounded in fantasy. Such plaintiffs are persistent.
They never tire. In fact, their persistence is their central characteristic: For the people I am
talking about, protracted litigation is an important aspect of life. It may range from a hobby
to an obsession.
Id. at 14.
13. Bruce D. Sales, Connie J. Beck & Richard K. Haan, Is Self-Representation a Reasonable
Alternative to Attorney Representation in Divorce Cases?, 37 ST. Louis U. L.J. 553, 561-62
(1993) (based on a sample of 273 pro se divorce litigants in Maricopa County, Arizona). While
aggregate data collection on the volume of pro se litigation is increasing as more courts study the
phenomenon, little empirical research beyond the Sales, et al., study has been conducted on the
personal characteristics of SRLs. See MEETING THE CHALLENGE.. supra note 4, at 11-13 (report-
ing the results of three additional surveys: (1) a 1996 study by the New York State Bar Associa-
tion that concluded they are "better educated and on the more highly compensated end of the

Published by History and Scholarship Digital Archives, 2008 3

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

generally seeking divorces or other forms of garden-variety judicial

relief, and are not litigating because they enjoy doing so.14
Despite the generally negative attitude evidenced by commentators,
there are many principles that can be drawn from the available litera-
ture, applicable rules of legal and judicial ethics, and common sense.
These principles and strategies will greatly benefit practitioners who
must interact with SRLs, the SRLs themselves, and the justice system.

I. ETHICAL ISSUES

A. Legal Ethics

1. Communication with the Self-Represented Litigant

Many attorneys are under the misconception that legal ethics rules
require that their personal interactions with SRLs must be minimal
and detached. In fact, attorneys are permitted to engage with SRLs as
they would with any opposing counsel. Interactions between attor-
neys and SRLs are primarily governed by Rule 4.3 of the ABA Model
Rules of Professional Conduct (2007), entitled Dealing with an Unrep-
resented Person.1 5 That rule states:
In dealing on behalf of a client with a person who is not represented
by counsel, a lawyer shall not state or imply that the lawyer is disinter-
ested. When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's role in the matter,
the lawyer shall make reasonable efforts to correct the misunderstand-
ing. The lawyer shall not give legal advice to an unrepresented person,
other than the advice to secure counsel, if the lawyer knows or reason-
ably should know that the interests of such a person are or have a

middle-income spectrum"; (2) a 1997 evaluation of the Maricopa County Self-Service Center
which found that the typical use of the center was a first-time SRL who filed for divorce or
divorce-related relief, had an annual income under $40,000, and completed high school and some
college, with 18 percent of such users having a college degree or some graduate study; and (3) a
1995 California study that found that "it appears that a significant portion of the family pro pers
[the term California uses to refer to SRLs] in California are not poor and not poorly educated.").
See also, John M. Greacen, Self-Represented Litigants and Court and Legal Services Responses to
Their Needs: What We Know 3 (2002), http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/SRL
whatweknow.pdf ("We have poor data on who is self-represented.").
14. Id.
15. MODEL RULES OF PROF'L CONDUCT R. 4.3 (2007). The 1983 version of Rule 4.3 (which
was resolved in the 2003 amendments) generated numerous court and ethics opinions regarding
such issues as what constitutes "misleading" the unrepresented person, what protocol is neces-
sary when an attorney interviews unrepresented employees of corporations or other organiza-
tions, whether a lawyer may submit documents to the unrepresented party for signature, and the
distinction between giving an unrepresented person information versus legal advice. See ABA
Ctr. for Prof'l Responsibility, ANNOTATED MODEL RULES OF PROF'L CONDUCT, 409-12 (3d ed.
1996).

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 4
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

134 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

reasonable
6
possibility of being in conflict with the interests of the
client.1
It is fair to say that a plaintiff SRL will know the role of counsel
when he or she enters an appearance for the defendant client, or vice
versa, when counsel's name appears on pleadings in a case brought
against a self-represented defendant. Nevertheless, prudent counsel
will take the "reasonable effort" of preceding all communications with
a SRL by way of a cautionary admonition - preferably in writing -
providing the information required by Rule 4.3.
According to Rule 4.3, Comment 1:
An unrepresented person, particularly one not experienced in dealing
with legal matters, might assume that a lawyer is disinterested in loyal-
ties or is a disinterested authority on the law even when the lawyer
represents a client. In order to avoid a misunderstanding, a lawyer will
typically need to identify the lawyer's client and, where necessary, ex-
plain that the client has interests opposed to those of the unrepre-
sented person. For misunderstandings that sometimes arise when a
lawyer for an organization deals with an unrepresented constituent,
see Rule 1.13(f) 7
What exactly does the Rule 4.3 prohibition against providing "legal
advice" to SRLs mean? a" Comment 2 of Rule 4.3 provides as follows:
16. MODEL RULES OF PROF'L CONDUCT R. 4.3 (2007). Practically speaking, the advice to
obtain counsel will fall on deaf ears, inasmuch as the SRL in most cases has already been unable
or is unwilling to secure counsel due to the high cost of legal services, the non-meritoriousness of
the case which made it impossible to secure counsel, or because the SRL is of the view that he or
she can handle the case himself.
17. MODEL RULES OF PROF'L CONDUCT R 4.3, cmt. 1; MODEL RULES OF PROF'L CON-
DUCT R 1.13(f) provides, "In dealing with an organization's directors, officers, employees, mem-
bers, shareholders or other constituents, a lawyer shall explain the identity of the client when the
lawyer knows or reasonably should know that the organization's interests are adverse to those of
the constituents with whom the lawyer is dealing." Id. at R, 1.13(f).
18. Cf., John M. Greacen, Legal Information vs. Legal Advice: Developments During the
Last Five Years, 84 JUDICATURE 198-204 (2001), and John M. Greacen, No Legal Advice from
Court Personnel:What Does That Mean? 34 THE JUDGES' JOURNAL 10-15 (1995), both of which
address the same question in the context of nonlawyer court clerks' communications with SRLs.
In the 1995 paper, Greacen states:
Neither of these distinctions-advice versus information-is satisfactory for the poor deputy
clerk who needs to decide whether to answer a question. Cases are often won or lost on
procedural issues. It is hard to know what is information, when an inquiring citizen is
clearly going to rely and act on what you say.
The author suggests adoption of the following principle:
Court staff have an obligation to inform litigants, and potential litigants, how to bring their
problems before the court for resolution. It is entirely appropriate for court staff to apply
their specialized expertise to go beyond providing generalized information (how do I file a
lawsuit?) to giving detailed procedural guidance (how do I request a hearing?). What does
the court like to see in an application for fees, a motion for default, a child support enforce-
ment order, a motion to suppress evidence, or an application for letters testamentary?
Any advice that a court staff member gives, which is limited to this purpose and function, is
appropriate-including the provision of references to applicable rules, statutes or court
precedents, the supplying of forms or examples of pleadings commonly used by other coun-
sel, or the articulation of the reasons for the court's preferring a particular process. Such

Published by History and Scholarship Digital Archives, 2008 5

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS 135

The Rule distinguishes between situations involving unrepresented

persons whose interests may be adverse to those of the lawyer's client
and those in which the person's interests are not in conflict with the
client's. In the former situation, the possibility that the lawyer will
compromise the unrepresented person's interests is so great that the
Rule prohibits the giving of any advice, apart from the advice to ob-
tain counsel. Whether a lawyer is giving impermissible advice may de-
pend on the experience and sophistication of the unrepresented
person, as well as the setting in which the behavior and comments
occur. This Rule does not prohibit a lawyer from negotiating the terms
of a transaction or settling a dispute with an unrepresented person. So
long as the lawyer has explained that the lawyer represents an adverse
party and is not representing the person, the lawyer may inform the
person of the terms on which the lawyer's client will enter into an
agreement or settle a matter, prepare documents that require the per-
son's signature and explain the lawyer's own view of the meaning of
the document19
or the lawyer's view of the underlying legal
obligations.
Thus, Rule 4.3 prohibits attorneys from giving "legal advice" to
SRLs without defining it, while Comment 2 inaccurately refers to that
provision by stating that it "prohibits the giving of any advice" apart
from the advice to obtain counsel.2" Thus, not only is "legal advice"
undefined, the distinction between "legal advice" and "advice" is un-
explained, and no reference is made to "legal information." The lan-
guage in Comment 2 indicating that "impermissible" advice shall be
determined in part based upon the "experience and sophistication of
the unrepresented person, as well as the setting in which the behavior
and comments occur" does little to clarify the attorney's duties in this
regard.2 1
Fortunately, however, Comment 2 expressly permits attorneys deal-
ing with SRLs to negotiate with them the terms of a transaction, settle
a dispute, prepare documents for their signature, explain the meaning
of the documents to them, and offer a "lawyer's view of the underly-
ing legal obligations. ' 22 This language essentially places the SRL in
the same position as an opposing counsel. The last phrase in Com-
ment 2, permitting an explanation of the lawyer's view of the "under-

advice is helpful to the party receiving it. The party might have committed a fatal procedu-
ral mistake if it had not gotten such advice. But the fact that it is helpful does not make it
improper. The court system has an interest in seeing that disputes are decided on their
merits. Court staff should help litigants use procedures to reach that end, not erect them as
hurdles over which court users will stumble.
Id. at 14.
19. MODEL RULES OF PROF'L CONDUCT R. 4.3 cmt. 2.
20. Id. and MODEL RULES OF PROF'L CONDUCT R. 4.3.
21. MODEL RULES OF PROF'L CONDUCT R. 4.3 cmt. 2.
22. Id.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 6
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants
136 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

lying legal obligations," appears to permit a lawyer to give his legal

opinion respecting the legal obligations of the parties.2 3 Thus, lawyers
dealing with an SRL have great latitude insofar as communications
with an SRL, but they may not go so far as to say, "I would advise you
to ." Attorneys can explain legal procedures and require-
ments-which would constitute legal information, not advice-and oth-
erwise paint the "legal picture" for the SRL about a pending matter
by stating their view of the respective "legal obligations" of the par-
ties. If understood properly, this transfer of legal information will not
only educate the SRL, but make it more likely that she will see the
"writing on the wall" resulting in a greater likelihood of settlement or,
if necessary, a more amicable litigation process.24 The "critical need"
for SRLs in family court, one commentator notes, is not for legal ad-
vice, but for legal information regarding the litigation process, rules of
procedure, and post-trial remedies.25

23. Id.
24. Several other provisions of the Model Rules of Professional Conduct provide additional
guidance for the attorney dealing with an SRL. These include the provisions in the Preamble
stating that every lawyer is, inter alia, "an officer of the legal system" (MODEL RULES OF PROF'L
CONDUCT preamble, at % 1) who, as a negotiator, "seeks a result advantageous to the client but
consistent with requirements of honest dealings with others" (Id. at 1 2). The lawyer "should
use the law's procedures only for legitimate purposes and not to harass or intimidate others" (Id.
at %5). Lawyers "should seek ...access to the legal system .... " and "should be mindful of
deficiencies in the administration of justice and of the fact that the poor, and sometimes persons
who are not poor, cannot afford adequate legal assistance" (Id. at 91 6). Lawyers are required to
maintain "a professional, courteous and civil attitude toward all persons involved in the legal
system" (Id. at 919). Rule 3.4, entitled "Fairness to Opposing Party and Counsel," provides
additional duties, including prohibitions upon unlawfully obstructing a party's access to evi-
dence, or altering, destroying, or concealing evidence; falsifying evidence, or counseling or assist-
ing a witness to testify falsely; disobeying obligations under the rules of a tribunal; making
frivolous discovery requests, or failing to diligently respond to discovery requests; alluding to
matters at trial not reasonably relevant or admissible, asserting personal knowledge of facts un-
less testifying, or stating personal opinions regarding the justness of a cause, the credibility of a
witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or requesting a
person other than a client to refrain from giving testimony, unless the person is a relative, em-
ployee or other agent of the client, or where the lawyer reasonably believes the person's inter-
ests will not be adversely affected by refraining from giving such information. Model Rules of
Prof'I Conduct R. 3.4. See also Rule 4.1, entitled "Truthfulness in Statements to Others," which
prohibits knowingly making a false statement of material fact or law to a third person, or failing
to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless such fact is confidential. Id. at R. 4.1.
25. Paula L. Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, 39 CT.
REV. 8, 13 (2003):
From an examination of the specific tasks involved in pursuing litigation, it becomes clear
that access to legal information is the most critical need of self-represented litigants in the
vast majority of cases. Legal judgment-the reasonable inferences that an experienced legal
professional makes based on available information-can be critical to litigants in more com-
plicated cases in which the sheer volume and complexity of legal information requires more
time than the average layperson can commit to preparing his or her own case. But in less
complex cases, self-represented litigants are typically able to make reasonable inferences
from legal information, and thus the need for access to legal advice can be very helpful, but
is not absolutely necessary. The question then becomes who is best situated to provide accu-

Published by History and Scholarship Digital Archives, 2008 7

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

2. Self-Representation and Ghostwriting

Another emerging legal ethics issue affecting litigators with SRL

adversaries arises from the growing practice of ghostwriting, i.e., the
drafting by behind the scene attorneys of pleadings or other court pa-
pers for SRLs. These ghostwriting attorneys offer "unbundled" legal
services, a form of permissible limited representation. 26 The ghost-
writers are often undisclosed for a variety of reasons.
The major reason for non-disclosure is the fact that attorneys pro-
viding this service are not paid enough to provide full representation.
They know that to place one's name on a pleading will be considered
by the court as an entry of appearance and obtaining leave to with-
draw from a pending matter for financial reasons is often difficult. In
the absence of rules specifically permitting limited representation in
certain types of litigation, 7 litigators know that courts rarely allow
counsel to withdraw from a pending matter for financial reasons. Ad-
ditionally, the SRL or the ghostwriter may simply want to keep the
fact of their relationship, or the identity of counsel, confidential as
they have a right to do.
Unfortunately, federal courts - despite any specific prohibition
upon the practice - uniformly disfavor undisclosed ghostwriting, de-
spite its benefit to SRLs of modest means. 28 The practice is said to
constitute a violation of the attorney's duty of candor to the tribunal,
the prohibition against making a misrepresentation to the court, a vio-
lation of the prohibition against assisting a client in making a misrep-
resentation to the court, a violation of Fed. R. Civ. P. 12, and
generally gives the SRL - supposedly the beneficiary of liberal treat-
ment to which he or she would not be entitled if they received ghost-

rate legal information to self-represented litigants, and to encourage litigants to seek legal
advice in appropriate circumstances.
Id.
26. MODEL RULES OF PROF'L CONDUCT R. 1.2(c) ("A lawyer may limit the scope of the
representation if the limitation is reasonable under the circumstances and the client gives in-
formed consent."). The term "unbundled" refers to providing discrete-task legal services rather
than full representation, first proposed by Beverly Hills, California, attorney Forrest Mosten as a
means of enhancing access to justice for persons of moderate means. See Forrest S.Mosten,
Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421 (1994) (proposing that a
cafeteria-style form of limited legal representation, allowing clients of limited means to select
which service(s) they want, thus empowering them by the act of making this decision, and also
benefitting attorneys who are willing to service this niche population); Forrest S. Mosten. UN-
BUNDLING LEGAL SERVICES: A GUIDE TO DELIVERY OF LEGAL SERVICES A LA CARTE (2000).
27. Limited representation rules to regulate the growing availability of unbundled legal ser-
vices have been adopted by statute and/or court rule in thirteen states to date: Alaska, Arizona,
California, Colorado, Connecticut, Iowa, Massachusetts, Maine, Missouri, North Carolina, Utah,
Vermont, and Washington.
28. 1 have found no state court decisions addressing the ethics or legality of ghostwriting.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 8
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

138 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

writing assistance - an "undue advantage" over the represented

party.2 9
I have elsewhere pointed out the deficiencies of these arguments,
arguing that limited representation is expressly permitted by legal eth-
ics codes, and suggesting that the real factors motivating these early
federal court views include (1) the novelty of the practice at the time,
(2) confusion of the court and the adverse party as to whether the
ghostwriter was or was not representing the SLR (and to whom no-
tices should be sent), and (3) the desire by the represented party's
attorney (who was the one complaining about the practice) to prevent
the SRL from gaining any assistance that would level the playing field
between the parties. 30 Both the ABA and the Arizona ethics commit-
tees recently agreed, finding that - absent any court rule or statute
prohibiting undisclosed ghostwriting - the practice does not violate
any of the rules of professional responsibility. 3
Nevertheless, litigators in states that do not yet regulate limited rep-
resentation may have occasion to deal with SRLs who receive ghost-
writing (or "coaching") assistance. They are free, of course, to
complain about it to the court, citing the aforementioned federal court
decisions and spending their time and their client's money arguing (in-
credulously, in my view) that they are being unfairly disadvantaged by
their SRL adversary.
A more prudent and economical approach would be to simply com-
municate with the SRL to determine the fact and scope of the limited
representation. Counsel can thereby confirm whether ghostwriting is
occurring, determine whether they may or should communicate di-
rectly with the ghostwriter or "coaching" attorney, and, if so, over
what particular matters and at what times. Absent instructions to the
contrary from their undisclosed attorney, notices and communications
should continue to be transmitted directly to the SRL. There is no

29. See, e.g., Johnson v. Bd. of County Comm'rs, 868 F. Supp. 1226 (D. Colo. 1994), affd on
other grounds, Conn. Light & Power Co. v. Sec'y of U.S. Dep't of Labor, 85 F.3d 89 (2d Cir.
1996); Laremont-Lopez v. Se. Tidewater Opportunity Ctr., 968 F. Supp. 1075 (E.D.Va. 1997);
Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001). Cf. CODE OF CONDUCT FOR UNITED STATES
JUDGES, CANON 5(F) (prohibiting judges from practicing law, but permitting judges to "give
legal advice to and draft or review documents for a member of the judge's family."); Richard
Posner, OVERCOMING LAW 57 (Harvard University Press, 1995) ("[A] majority of the Supreme
Court's opinions [are] being written by law clerks; today, a judge written opinion, at any level of
the American judiciary, is rare."); Lisa G. Lerman, Misattributionin Legal Scholarship:Plagia-
rism, Ghostwriting, and Authorship, 42 S. TEX. L. REV. 467, 468 (2001) ("A law school graduate
who becomes a judicial clerk probably will spend a year or two ghostwriting for a judge.").
30. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URB. L.J. 1145 (2002).
31. See ABA Standing Comm. on Ethics and Prof'l Responsibility, Formal Op. 07-446 (May
5, 2007) (availableat http://www.abanet.org/media/youraba/200707/07-446-2007.pdf) (last visited
Feb. 2, 2008); Arizona State Bar Comm. on the Rules of Prof'l Conduct, Op. 05-06 (July 2005)
(http://www.myazbar.org/Ethics/opinionview.cfm?id=525) (last visited Feb. 2, 2008).

Published by History and Scholarship Digital Archives, 2008 9

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

need to make a "federal case" out of the fact of undisclosed pro se

assistance; it is more likely to benefit the parties and the court by way
of better-crafted pleadings, it will keep the SRL within the bounds of
ordinary litigation, and raises the likelihood that the SRL is at least
getting some legal advice which will keep him or her from becoming
the proverbial "pest" or "kook."

B. Judicial Ethics
In litigating against SRLs, lawyers must recognize that judges have
a constitutional duty to provide parties, as a matter of due process,
with a "meaningful opportunity to be heard."3 2 In addition, they have
several ethical duties which arise during the litigation process.
Judges must "uphold and promote the.., impartiality of the judici-
ary, and shall avoid impropriety and the appearance of impropri-
ety."3 3 For many years judges felt themselves in a quandary when
presiding over "mixed cases," that is, cases involving a represented
and an unrepresented party. They realized that they had to maintain
their impartiality, but they also knew that there were instances in
which - in order to avoid possibly harsh results - they had to provide
SRLs with information and certain guidance in order to meet their
constitutional obligation.3 4
In February 2007, the ABA addressed this issue by revising the
Model Code to include the following comment to Rule 2.2: "It is not a
violation of this Rule for a judge to make reasonable accommodations
to ensure pro se litigants the opportunity to have their matters fairly
heard."3 5 This provision constitutes a sea change in judicial ethics,
which many commentators and pragmatic judges believed was neces-
sary in order to avoid claims of bias on the part of represented parties
and their attorneys whenever judges provided minimal assistance to
SRLs.3 6

32. Boddie v. Connecticut, 401 U.S. 371, 379 (1971); M.L.B. v. S.L.J., 519 U.S. 102 (1996).
33. See MODEL CODE OF JUDICIAL CONDUCT Canon 1 (2007) (MCJC), http://www.abanet.
org/judicialethics/ABAMCJC.approved.pdf (last visited Jan. 31, 2008). See also MODEL CODE
OF JUDICIAL CONDUCT Canon 2 (requiring that judges perform the duties of their office "impar-
tially, competently, and diligently"); and MODEL CODE OF JUD. CONDUCT R. 2.2 (requiring
judges to "perform all duties of judicial office fairly and impartially").
34. See MEETINO THE CHALLENOE, supra note 4, at 52-61 (reporting the results of a na-
tional survey of state judges indicating that this is the central problem in pro se litigation with
which they were concerned).
35. MODEL CODE OF JUDICIAL CONDUCT R. 2.2 cmt. 4 (2007), http://www.abanet.org/judi-
cialethics/ABA_-MCJCapproved.pdf.
36. Judges are loath to provide any assistance often cite McKaskle v. Wiggins, 465 U.S. 168,
183-84 (1984), in which the Supreme Court stated that, in the context of a criminal trial, "[a]
defendant does not have a constitutional right to receive personal instruction from the trial judge
on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro
se defendant that would normally be attended to by trained counsel as a matter of course." The

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 10
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

140 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

The implications of this new development in judicial ethics remain

to be seen. The question is what is a "reasonable accommodation"?
Until appellate decisions address this question, litigators can expect in
the future to see somewhat more assistance given to SRLs by judges,
who will still be required to balance their constitutional duty to pro-
vide meaningful hearings while maintaining their impartiality and
avoiding the appearance of bias. It may now become more difficult to
take advantage of the SRLs' lack of substantive and procedural
knowledge for the benefit of one's own client,37 which - while once
common and easy to do - also causes more pro se post-judgment fil-
ings seeking to overturn dismissals, summary judgment, or other harsh
results.
As noted below,3 8 in order to avoid being cast in a "David versus
Goliath" role and incurring the wrath of the court or jury, prudent
attorneys will withhold their objection to whatever modest assistance
may be provided by the court (which may be granted grudgingly, at
best) to ensure the SRL a meaningful opportunity to be heard.

II. PRETRIAL STRATEGIES

While there may be no sure-fire, overall strategy to deal with SRLs,

attorneys must recognize that SRLs are, in most cases, sincerely trying
to present a claim or defense, but simply do not know how to do so.
Much can be achieved, however, by the litigator who engages in ami-
cable pretrial communication with the SRL.
Conducting preliminary discussions with the SRL achieves several
purposes. It can, if handled properly, reduce the SRL's anxiety over
the legal matter, which may help to prevent, reduce, or dispel the hos-
tility that can lead him or her to act rashly or irrationally. It can also
result in a settlement of the dispute, which will serve everyone's inter-
ests. Moreover, if settlement discussions are unsuccessful, valuable in-
formation can be gained from these discussions which may be useful if
a trial is later necessary. In the alternative, the information learned
may be sufficient to persuade one's own client to dismiss the claim or
modify a previous position. The key is not to bully the SRL, or to act

reasoning of most judges is that, if the Court took this position in criminal cases, it surely applies
in civil cases.
37. See, e.g., Marshall H. Tanick, Self-Representation: The Perils of Pro Se, FINDLAW, http://
library.findlaw.com/1999[Nov/1/131043.html (last visited February 2, 2008) (describing the expe-
rience of a partner in the author's law firm who had a case in Federal court in St. Paul involving
complex labor law issues in which the claimant represented himself. The partner was represent-
ing "the employer who was being sued, along with the National Labor Relations Board, [and]
felt that the pro se individual did a 'reasonably good job' in the case, but that he made some
legal and tactical blunders that [the partner] properly took advantage of to help his client get the
case promptly dismissed.").
38. See infra notes 47-52 and accompanying text.

Published by History and Scholarship Digital Archives, 2008 11

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

aggressively toward him, for that will surely increase the SRL's hostil-
ity to the lawyer, or his client.3 9
At the outset, counsel should contact the SRL in writing to request
a meeting to discuss the case. This letter should include the admoni-
tion required by Rule 4.3 to the effect that counsel is not the individ-
ual's own attorney, but represents the adverse party in the matter.
This may result in an opportunity to learn the facts underlying the
SRL's position, and may possibly lead to the discovery of relevant
documents, names of witnesses, or other evidence. If a settlement is
reached as a result of these discussions, a letter should be sent to the
SRL reciting the settlement terms, suggesting that the SRL retain
counsel to look over the agreement, and requesting that, upon his or
her approval, a copy of the letter be signed and returned to counsel.
Counsel may find that the SRL is upset about a matter that can be
remedied by something as simple as an apology.
A settlement letter will not only memorialize the agreement, but
also the ethical manner of communication between counsel and the
SRL. Counsel should then schedule one or more settlement or pre-
trial conferences in which the court should be asked to inquire of the
litigant, on the record, as to his or her understanding of the terms of
the agreement, its fairness to the parties, and the fairness with which
counsel treated the litigant during the negotiations.
If trial seems inevitable, an initial effort should be made to engage
in informal discovery rather than a formal notice to appear at a depo-
sition. An informal notice, for example, would be a phone call to the
SRL from counsel's secretary asking what days and times might be
most convenient for the litigant to come to counsel's office (or for
counsel to come to the litigant's home, or a neutral location, if the
SRL prefers) to discuss the case. This is probably not a meeting to
which counsel should bring his or her client.
A meeting with both parties may prove useful later-especially if liti-
gation is inevitable-if counsel can persuade the SRL to meet and dis-
cuss those facts about the dispute which can be agreed upon. A
written stipulation of certain facts would ideally be one product of this
meeting. When counsel presents the court with such stipulations, or a
settlement agreement itself, it shows that counsel is assisting the court
to process its caseload smoothly, and evidences counsel's good faith
treatment of one whom the court may consider the underdog.

39. "Don't do anything to cause the pro se opponent to turn the thing about which she is
angry into an all-consuming cause. If you do that, you may never get rid of her. Don't talk down
to her. Even if she does not have a clue, treat her as your equal. Treat her with respect; kill her
with kindness. Surprisingly, your good behavior is frequently reciprocated." See Helfrich, supra
note 7, at 43.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 12
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

142 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

Any such meeting would be an educational one for the SRL. First,
it would be the time to explain to the SRL the "underlying legal obli-
gations" of the parties, as permitted by Commentary 2 of Rule 4.3.40
After the SRL explains his perception of the liability of the parties,
counsel can explain his view of the merits of the SRL's claim (or de-
fense), and of his client's position. Counsel could point to the defi-
ciencies or weaknesses, if any, of the SRL's claim, and what counsel
believes will happen if the matter proceeds to trial. If the SRL is a
plaintiff, he will probably have no idea of the necessary elements of
the cause of action he seeks to bring, nor of the available defenses of
his adversary. It may expedite resolution of the dispute if counsel pro-
vides such information about the deficiency in a SRL's claim or per-
haps the existence of a statute of limitations that appears to bar the
claim.
If communication is not utilized, the SRL will flounder and make
numerous procedural mistakes, which will be costly to one's client be-
cause of the necessary time expended addressing them. There may be
ill-conceived pleadings leading to several amendments being filed with
the court, to which counsel will need to respond. There will be mo-
tions filed that are not authorized by the rules of court, and not no-
ticed up or filed with improper notice of filing. Or the SRL may fail
to appear at depositions, or otherwise comply with discovery or proce-
dural rules. These kinds of problems can be avoided by using concilia-
tory, friendly communication with the SRL. In contrast, a "scorched
earth" approach in which counsel out-maneuvers the SRL to the lat-
ter's detriment may cause him or her to become more litigious in turn.
This would create the "Frankenstein's monster" of an overzealous pro
se litigant that lawyers hope to avoid.

III. MOTION PRACTICE

Litigation may be inevitable if informal efforts at resolution of the

matter are unsuccessful. In the face of a pro se complaint, therefore,
motions to dismiss may be necessary in order to dispose of the matter.
However, counsel should not act like an SRL when preparing mo-
tions. Counsel must be sure to cite to relevant authorities in the mo-
tion, should avoid making conclusory statements, should not neglect
to file affidavits or other evidence in support of the motion, and
should not fail to evaluate the arguments and authorities cited by the
opponent. If the court-which expects to get minimal guidance from

40. See supra notes 14-16 and accompanying text.

Published by History and Scholarship Digital Archives, 2008 13

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

20081 SELF-REPRESENTED LITIGANTS

an unrepresented litigant as to the law-has to do the lawyer's work, it

will resent the attorney more than the unrepresented litigant.4
Counsel should consider postponing the filing of a motion to dis-
miss until a motion for a more definite statement is filed.4 2 A prema-
ture motion to dismiss that attacks the sufficiency of the pleadings will
probably result in leave to amend, and the SRL will get one or more
further opportunities to state a cause of action. Thus, it could be a
waste of client funds and may anger the court,4 3 especially if several
amendments are allowed. Filing one or more motions for a more defi-
nite statement will enable counsel to pin down the SRL as to his or
her theories of relief and the facts relied upon.
If discovery is not forthcoming after reasonable efforts to persuade
the SRL to comply, sanctions by way of dismissal may be sought. If
answers are provided, discovery by way of interrogatories and a depo-
sition will further elicit the basic facts, after which an earlier motion
for summary judgment can be filed. The following reflects the type of
suggestion made by litigators who view SRLs as "pests" or "kooks,"
and who want to outwit and take advantage of them:
This is important because pro se litigants rarely recognize the finality
of any of their or the court's actions. They file responses to answers,
surresponses to reply briefs, endless motions for reconsideration, and
repeated motions on the same issues. And the courts sometimes grant
them leave to do so. With so many shots at argument, sooner or later
the pro se litigant will pick a winner. It is much better to rule out
arguments up front by stating the pro se party's claims and allegations
clearly. Then you can argue not only for waiver, but also that waiver
occurred knowingly.44

41. "After all, the attorney should know better. Just as bad, the court will procrastinate,
which means that the lawyer will have to put off the impatient client who was promised an easy
victory." Garland, supra note 7, at 46.
42. Zuydhoek, Litigation Against a Pro Se Plaintiff, supra note 7, at 15. An exception to
this rule is where the plaintiff fails to make proper service. See, e.g., Michelson v. Merrill, Lynch,
Pierce, Fenner & Smith, 619 F.2d 83, 85 (2d Cir. 1980) (no error where trial court dismissed pro
se plaintiff's action after he failed twice to properly serve defendants). But see Valentin v.
Dinkins, 121 F.3d 72 (2d Cir. 1997) (the court has obligation to assist pro se plaintiff in the
identification of defendants and in the service of process); Gordon v. Leeke, 574 F.2d 1147, 1152-
53 (4th Cir. 1978) (Upon stating a meritorious claim, the court has duty to "advise him how to
proceed and direct or permit amendment of the pleadings to bring that person or persons before
the court."); Meckley v. United States, 1992 U.S. App. LEXIS 9033, *4 (4th Cir. 1992) ("[T]he
district court has some responsibility to assist pro se litigants who are unable to identify the
proper defendant."). These principles have not stopped some courts from dismissing complaints
where the SRL failed to properly serve a defendant per state procedural rules. See, e.g., Brown
v. Thaler, 880 A. 2d 1113, 1116 (Me. 2005) (Dismissal of SRL complaint was proper where sum-
mons was first served improperly by certified mail, and no effort was subsequently made to
obtain and file the required an "acknowledgement of receipt" executed by defendants, or to
have defendants personally served.).
43. Zuydhoek, supra note 7, at 15.
44. Garland, supra note 7, at 47.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 14
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

144 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

One commentator emphasizes the importance of one's reply brief

(after the SRL has responded to the motion to dismiss). It is consid-
ered a mistake to file a reply brief that is short and conclusory. This
reply brief, which technically cannot be replied to (a rule which of
course may not be followed by the SRL), should be one in which all
the parties' arguments for and against the motion are discussed. One
author suggests the following:
Use the reply brief to write the court's opinion in favor of your mo-
tion. Frame the law succinctly but completely, identify your oppo-
nent's arguments and waiver of arguments, and explain simply why
you should win. Don't skimp on the reply brief and give the court a
reason to fill the
45 vacuum left by the pro se litigant's poorly drafted
response brief.
Of all the stages in litigation, summary judgment is one of the most
critical. The non-movant SRL is often disadvantaged by lack of
knowledge of summary judgment principles and procedures. It is easy
for the moving party to dispose of an SRL's claim or defense by sub-
mitting a motion in proper form with accompanying affidavits and
supporting materials, against which either hearsay-filled affidavits
may be filed in response, or no counter-affidavits may be filed at all.
A dismissal or other adverse ruling in a summary fashion will increase
the likelihood of an appeal by the unrepresented party.
One of the few accommodations federal appellate courts have rec-
ognized is the requirement that SRLs be given "fair notice" of sum-
mary judgment procedures. 46 In light of this emerging trend, a
prudent attorney will attempt to avoid the harsh results of dismissal or
summary judgment that are later challenged. Counsel should take the
initiative and request that the court instruct the litigant, or offer to
provide instruction about the rules governing summary judgment.
This may take some extra time, but it will probably be well worth the
investment if it can save one's client the burdens of post-judgment
motions or an appeal.4 7

IV. DISCOVERY

According to one commentator, "the frustration of pro se litigation

grows as the case moves into discovery. Most pro se litigants have no

45. Id.
46. See, e.g., Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); Graham v. Lewinski, 848
F.2d 342 (2d Cir. 1988); Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975); Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988); Jaxon v. Circle K Corp., 773 F.2d 1138 (10th Cir. 1985);
United States v. One Colt Python .357 Caliber Revolver, 845 F.2d 287 (11th Cir. 1988).
47. One court requires by local rule that the movant's counsel provide such notice. See,
e.g., N.D. I11.
R. 56.2 (requiring a special notice, included in the rule, containing summary judg-
ment proceeding instructions in plain English be served upon non-movant SRLs).

Published by History and Scholarship Digital Archives, 2008 15

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

concept of the purpose or scope of discovery. They often ignore re-

quests to produce and interrogatories; responses are usually con-
clusory and argumentative."4 8 He recommends counsel take the
following steps during discovery: (1) give advance notice and warning
of court rules requiring that all filings be served on counsel, and that
periodic checks of the court docket be made to monitor filings the
SRL may have made without proper notice; (2) depose a plaintiff SRL
before any defendants are deposed, "to make a record of defense ef-
forts to educate the plaintiff about proper discovery techniques," to be
used later "to restrict the plaintiff's improper actions during the depo-
sitions of defense witnesses"; (3) obtain testimony regarding the fact
of plaintiff's efforts to secure counsel, an inquiry that may be impor-
tant later "if the plaintiff later tries to get special treatment because of
supposed naivetd"; (4) explain the procedures for making corrections
to the transcript of the deposition, so that, if counsel later impeaches
plaintiff with inconsistencies, "the jury will react more favorably
knowing that the plaintiff understood the earlier proceedings"; (5) in-
form the plaintiff that the testimony is given under oath, may be used
at trial or before trial in connection with pretrial motions, so that "the
judge will be more likely to make decisions based on such testimony if
that warning has been given"; and (6) explain to the SRL that it is not
a time for arguing facts or law, and that he cannot ramble on at the
deposition, because "by teaching the plaintiff the ground rules and
making a record of that lesson, you will be49 better able to protect your
client during his subsequent deposition.
Defense counsel may also want to consider using requests for ad-
missions. Failure to respond to the statements posed within the requi-
site time period will result in their being deemed admitted. The
request should be served by certified or registered mail, and should
contain a conspicuous warning regarding the requirements of the rule
which "will provide comfort to the judge when she allows the [repre-
sented] defendant to introduce admissions obtained by default."5 0
Litigators should also take advantage of rules that permit the court
to conduct pretrial conferences, not only to resolve discovery disputes,
but to formulate a plan for trial and to make pretrial evidentiary rul-
ings. One issue that can be addressed is the admissibility of narrative
testimony, which is what SRLs typically offer at trial. 51 One commen-
tator recommends that counsel argue that Rules 611(a) and 103(c) of

48. Zuydhoek, supra note 7, at 16.

49. Id. at 16, 59.
50. Id. at 59.
51. "Most judges provide self-represented litigants with a detailed explanation of trial pro-
cedures, as time permits, and then allow narrative testimony." MEETING THE CHALLENGE, supra
note 4, at 57.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 16
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

146 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

the Federal Rules of Evidence authorize the court to prohibit narra-

tive testimony.
Rule 611(a) permits the court to "control the mode of interrogating
witnesses and presenting evidence." The court is required by that rule
to "avoid needless consumption of time." Argue that making the
plaintiff respond to specific questions will limit improper arguments
and confine the proof to relevant areas. Counsel should refer to spe-
cific examples of plaintiff's pursuit of irrelevant issues at the deposi-
tions. In addition, Rule 103(c) requires the court to "prevent
inadmissible evidence from being suggested to the jury." Counsel
should argue that the court cannot exercise the necessary control and
prevent jury taint unless the plaintiff is restricted to a question-and-
answer format. Defense counsel can suggest, as an alternative to the
narrative, that the pro se plaintiff submit in writing, before trial, ques-
tions he will be seeking to answer. The court can then designate some
neutral person, perhaps the law clerk, to ask the questions. To limit
objections during the testimony, the court should allow defense coun-
sel, before trial, to challenge the propriety of particular questions.5 2

V. TRIAL STRATEGIES

At trial, counsel must realize that there are many opportunities for
coming on too strong and playing-in the eyes of the judge or jury-the
role of Goliath.
The most important piece of advice I have for a lawyer litigating
against a pro se litigant is to protect your credibility by avoiding
hubris. Hubris is tempting when you, a hardy, experienced litigator,
have to deal with a pro se litigant who does not know the law, does
not play by the rules, and cannot communicate without engaging in a
harangue. The temptation grows to omit legal citations from your
briefs, engage in ad hominem attacks, and speak to the judge or the
clerk about "this mess we should all clear up," as if you and the court
stand united against the pro se party.
Don't. There are two reasons why not.
First, such behavior turns the court against you. If there is anything
more unappetizing than a smug lawyer, it is a smug lawyer opposing
an obviously outclassed pro se party. Nothing is more likely to remind
the court of its special obligation to protect the unrepresented party.
Additionally, on the occasions when you are wrong, you will look
plain stupid and childish. To avoid provoking this negative emotional
reaction, treat the pro se litigant with respect: do not complain or snig-
ger about the pro se party's lack of skill, intelligence, or coherency;

52. Zuydhoek, supra note 7, at 60. Other commentators suggest relaxing, or even eliminat-
ing, the Rules of Evidence for non-jury cases involving SRLs. John Sheldon & Peter Murray,
Rethinking the Rules of Evidentiary Admissibility in Non-Jury Trials, 86 JUDICATURE 227 (2003).

Published by History and Scholarship Digital Archives, 2008 17

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3

2008] SELF-REPRESENTED LITIGANTS

and avoid ex parte contacts with the court regarding the pro se liti-
gant's position. While superciliousness might find favor with some
courts, most likely that number is small.53
This suggestion is especially apt in the context of evidentiary objec-
tions. While it may be an annoyance to hear testimony that is laden
with objectionable statements, the better practice is to be judicious
with one's objections. Despite reformers' efforts to modify traditional
evidentiary, procedural, and judicial ethics rules as they pertain to
SRLs,5 4 judges differ in the extent to which they require SRLs to fol-
low the rules of evidence.55 Therefore, objections should be limited to
testimony that has the potential to actually damage a client's case:
"Letting the pro se litigant babble on about irrelevant things makes
the problem the judge's, not yours. It also makes you seem rather
reasonable, both to the court and the unrepresented litigant."5 6 Mini-
mal objections will also serve to show how reasonable you are to the
57
jury.
When making objections, or responding to any comments from the
SRL, it is prudent to avoid straying from the general practice of ad-
dressing the court directly. Likewise, one's client should be admon-
ished beforehand to maintain a poker face regardless of irrelevant,

53. Garland, supra note 7, at 46. (emphasis added). Some courts recognize a judicial duty
to protect SRLs because they are unskilled in legal matters and prone to making errors. See,
e.g., Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). As noted in one
survey, "Judges observe that some attorneys take advantage of the fact their opponent is self-
represented. They say that they 'must bend over backwards to keep [the] pro se litigant from
being taken advantage of'." MEETING THE CHALLENGE, supra note 4, at 53. Some courts recog-
nize that judges have a duty to protect vulnerable SRLs. See, e.g., Bolshakov v. McCarthy, 702
N.Y.S.2d 748 (N.Y. Civ. Ct. 1999) (denying malpractice defendants' motion to preclude or dis-
miss action for failure to respond to overbroad bill of particulars where "the within complaint
indicates a vulnerable plaintiff," and "the demands that are the subject of this motion display an
effort to take advantage of that vulnerability. The court ... may, on its own initiative [pursuant
to court's authority to regulate discovery], issue a protective order so as to prevent disadvantage
or other prejudice to a litigant.").
54. See, e.g., Jona Goldschmidt, The Pro Se Litigant's Struggle for Access to Justice, 40 FAM.
CT. REV. 36, 51 (2002) (arguing that rules of procedure and evidence should be relaxed in cases
involving SRLs); Sheldon & Murray, supra note 52, at 228 ("When [a pro se] litigant faces a
party represented by counsel in a jury-waived proceeding, rules of admissibility become more
than superfluous: They become weapons that the lawyer can use to gain an advantage that has
nothing to do with the merits of the case.").
55. MEETING THE CHALLENGE, supra note 4, at 57.
56. Helfrich, supra note 7, at 42.
57. Until such time as courts relax the rules of evidence in pro se cases, attorneys opposing
SRLs may want to consider making a request outside the presence of the jury that the court
follow the rules of evidence. And, while a judge may ask questions of the plaintiff or witnesses, if
the judge tries to relax the rules of evidence, "Try to persuade the court that the evidentiary
rules should not be relaxed for the pro se litigant." Zuydhoek, supra note 7, at 60, (citing An-
drews v. Bechtel Corp., 780 F.2d 124, 142 (1st Cir. 1985), cert. denied, 476 U.S. 1172 (1986))
(district court did not err in finding pro se plaintiff had failed to introduce evidence to satisfy his
"itle VII claim, despite fact that evidence had been adduced earlier in connection with class
certification hearing, where to do so "would violate the basic tenets of the adversary system").

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 18
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants

148 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

incomprehensible, or foolish statements made by the litigant, which

will also serve to make the client appear to have the more rational
position.
Cross-examination of the SRL should be brief. "The plaintiff [SRL]
likely will provide nonresponsive arguments; repeated motions to
strike nonresponsive and improper answers will not help your case.
Strive only to highlight the major flaws in the plaintiff's credibility and
then sit down." 58 In the exceptional case where a SRL is disruptive,
contumacious, or defiant, counsel may of course seek sanctions, in-
cluding a bar on the introduction of evidence.

VI. RULE NONCOMPLIANCE

Under American state and federal case law, liberality is granted to

SRLs with respect to pleadings, 59 and, on occasion, in cases of inad-
vertent non-compliance or imperfect compliance with procedural
rules.6" Generally, however, courts require that SRLs follow the same
rules and obey the same requirements as represented parties.6 1
There are many ways to bring non-compliance to the court's atten-
tion so as to diminish the court's (possibly unfair) sympathy for the
SRL, or avoid the problem of such litigant's non-compliance in the
first place. For example, educating the litigant by letter or other com-
munication as to his or her obligation under the rules, as suggested
above with reference to summary judgment procedure, is one way to
instruct the litigant.62 This would not constitute giving legal advice,
where counsel merely refers the litigant to a particular rule and recites
its contents. 63 In the event of a SRL's subsequent non-compliance,

58. Zuydhoek, supra note 7,at 60.

59. Haines v. Kerner, 404 U.S. 519, 521 (1972) (civil rights complaint filed by pro se pris-
oner plaintiff to be held "to less stringent standards than formal pleadings drafted by lawyers.").
60. See, e.g., Genaro v. Mun. of Anchorage, 76 P.3d 844, 846-47 (AK 2003) (The court
should assist a pro se plaintiff if he makes "some attempt to comply with the court's procedures,"
and informing him of the technical defects of his complaint would not compromise the court's
impartiality.); Collins v. Arctic Builders, 957 P.2d 980 (AK 1998) (reversing dismissal of workers'
compensation claim for determination of whether pro se claimant's attempt to timely file his
claim was thwarted by court clerk); Traguth v. Zuck, 710 F.2d 90, 93-94 (2d Cir. 1983) (reversing
default judgment against SRL for failure to file answer through counsel, where answer was
timely filed pro se).
61. See, e.g., Faretta v. California, 422 U.S. 806, 834, n.46 (1975) ("The right of self-repre-
sentation is not a license ... not to comply with relevant rules of procedural and substantive
law."); Newsome v. Farer, 103 N.M. 415, 708 P.2d 327, 331 (1985) ("the pro se litigant must
comply with the rules and orders of the court, enjoying no greater rights than those who employ
counsel ... Although pro se pleadings are viewed with tolerance, . . . a pro se litigant, having
chosen to represent himself, is held to the same standard of conduct and compliance with court
rules, procedures, and orders as are members of the bar.") (citing Birdo v. Rodriguez, 84 N.M.
207, 209, 501 P.2d 195, 197 (1972)).
62. See supra notes 36-41 and accompanying text.
63. See supra notes 14-19 and accompanying text.

Published by History and Scholarship Digital Archives, 2008 19

 North Carolina Central Law Review, Vol. 30, No. 2 [2008], Art. 3
2008] SELF-REPRESENTED LITIGANTS

the court will be more willing to entertain sanctions or dismissal in

light of the fact that the litigant was warned of his obligations. Such
warnings should accompany not only motions for summary judgment,
but also motions to dismiss. In addition, it has been recommended
that upon receipt of a complaint and summons, a notice be served
upon the plaintiff regarding Rule 11. The notice should draw attention
to the requirements that pleadings have a foundation in fact and law,
and are not served for an improper purpose such as to harass or cause
unnecessary delay or needless expense.64
In addition to, or in lieu of, the foregoing, counsel should provide a
form order to the court that states a due date for the unrepresented
party's required response to a motion. Thereby, failure to timely re-
spond can be construed as failure to obey the orders of the court,
again making it more likely to have the court on counsel's side if and
when sanctions are sought.
Repetitive, meritless filings are sometimes a tactic of an uninformed
SRL and may properly be sanctioned.6 6 This is especially true if he or
she has a history of litigiousness in one or more courts (i.e., the pro-
verbial "pest," although the line between "pest" and "kook" is not a
bright one). It is not uncommon for courts to enjoin further filings
unless they are first screened by the court or other requirements are
met.67 If the SRL is truly a "pest," having filed numerous complaints
in other courts, presenting such a list of previous litigation to the court
will surely dispel the SRL's "aura of innocence." In addition, this ac-
tion may prove useful if and when the litigant conducts further litiga-
tion against one's client after the first matter has ended.6 8
Despite liberality rules for pleadings, the general sympathy some
individual judges (and some appellate courts) have in cases of imper-

64. Zuydhoek, supra note 7, at 15.

65. Garland, supra note 7, at 50.
66. See generally, Michael J. Mueller, Note: Abusive Pro Se Plaintiffs in the Federal Courts:
Proposalsfor Judicial Control, 18 U. MICH. J.L. REF. 93 (1984); Deborah L. Neveils, Florida's
Vexatious Litigant Law: An End to the Pro Se Litigant's Courtroom Capers, 25 NOVA L. REV.
343 (2000).
67. See, e.g., Antonelli v. Caridine, 528 U.S. 3 (1999) (Petitioner who filed 55 previous peti-
tions was denied leave to proceed in forma pauperis,and order entered barring future filings for
certiorari or extraordinary writs in noncriminal matters.); Whitaker v. Superior Court of Califor-
nia, 514 U.S. 208 (1995) (enjoining filings until petitioner pays docketing fee and complies with
rules concerning format of petitions); In re Winslow, 17 F.3d 314 (10th Cir. 1994) (filings en-
joined unless first reviewed by Chief Judge). See also Mueller, supra note 60, at 102, 103, n.30
(reviewing the various definitions of "frivolousness" and recommending strategies for federal
courts to deal with what he refers to as "career plaintiffs," some of whom have filed upwards of
600 to 700 federal lawsuits).
68. "Once the court has ruled against them, some pro se litigants are loath to say goodbye;
they continue to file evidence, substantive motions, motions for reconsideration, and, even
worse, additional lawsuits. I don't know if this stems from zealousness or unfamiliarity with the
concept of finality." Garland, supra note 7, at 51.

https://archives.law.nccu.edu/ncclr/vol30/iss2/3 20
 Goldschmidt: Strategies for Dealing with Self-Represented Litigants
150 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 30:130

fect compliance with court rules does not permit the court to become
an advocate for the litigant. This is a point of which counsel can re-
mind the court, and place on record in the event of an appeal.

VII. CONCLUSION
Today's family law litigators and others practicing in courts of gen-
eral jurisdiction are facing a growing number of SRLs, a trend de-
scribed by a prominent trial court administrator as "both apparent
and irreversible." 69 Litigators, like courts as institutions, must adapt
to this movement. To do otherwise is to risk the possibility of lengthy,
acrimonious, and costly litigation from the minority of such litigants
who may feel mistreated and who come to believe there is a vast con-
spiracy against them by the bar and the judiciary. The suggestions
presented above for handling cases involving the majority of sincere
SRL adversaries-coupled with a patient attitude toward them, their
legal situation, and their real objectives-will help the litigator avoid
such potential contentiousness, so that an expeditious and just result
can be achieved, and one's sanity can be maintained.

69. See Gordon M. Griller, Litigants without Lawyers: "Going It Alone" in the Nation's
Courts, in THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 413, 413-415 (Gordon M.
Griller & E. Keith Stott, Jr., eds., 7th ed. 2002).

Published by History and Scholarship Digital Archives, 2008 21