Summer 2014 Newsletter: It’s a Bird. It’s a Plane. It’s a Pro Se Litigant!

By Brian McLaughlin, Jr., Esq.

Any comic book nerd such as myself would know this famous line from Superman. This play on words is to direct your attention to a very serious problem in courts in general, specifically the Probate and Family Court. In the literature, it’s known as the Pro Se Problem or the Pro Se Challenge. By way of background, pro se means representing yourself in litigation without the assistance of an attorney.

Culprits of the pro se challenge are included but are not limited to, the economy, the internet, television, changes in family law, specifically the expansion of jurisdiction and uniform enforcement of child support.[1]  In a 2005 ABA article, it is estimated that one-third of all litigation in the lower courts is done by pro se litigants.[2]  Given these startling facts and statistics, it is abundantly clear that this trend will continue. Dan Gibson of the Suffolk Probate and Family Court expects this trend to continue even as the economy improves. The only time that the right to counsel applies is in criminal cases, specifically the commission of felonies. The right to counsel can only apply in the family law context in a parental termination situation. The right to represent oneself in court is fundamental and is contained in the 6th amendment to the constitution in the bill of rights. Given these facts, how do we as lawyers cope with the pro-se challenge?

The courts have introduced programs such as the SERV (Suffolk Early Resolution Volunteer) Project, Lawyer for the Day, and newly implemented Father’s Rights/Mother’s Rights workshops to help serve the pro-se population. These pro-bono and educational opportunities, although helpful and rewarding, are only a finger in the dike to help solve the pro-se challenge. With first year associates starting at $245 an hour, the problem is compounded by the fact that "the typical legal services consumer in the U.S. makes approximately $25 per hour” [3]. Oftentimes even if they wish to retain a lawyer, people do not have access or the ability to afford a lawyer for an entire case. This population, even if they are able to afford a lawyer for part of a case, may have to go it alone for the rest of the case. In my practice it is very rare that I see a litigant being represented for an entire case, but rather the representation is piecemeal.

Now that we’ve outlined the culprits, let’s take some time to identify the challenges when dealing with a pro se litigant. They don’t understand your role and they don’t understand the rules of evidence or court processes/procedures. They only understand that you represent the enemy and only what they see on TV. “Lawyers complain that pro se litigants don't know or follow court rules, don't understand or obey the law, and, worse, that judges give them unfair leeway.”[4]  As a lawyer, the question becomes, “What is my role to the court and to my client?”

I believe that you have an obligation to advocate for your client as well as facilitate the court process. In other words, under Mass Rules of Professional Conduct (M.R.P.C Rule 4.3), you’re only required to tell a pro se litigant, “You must retain a lawyer”. However, this response is insufficient in dealing with the realities of the situation. I will write an introductory letter, introducing myself, explaining the basics of the court process, relay my contact information, as well as legal resources such as family law for low income litigants. At this point, we must draw a critical distinction between legal advice and legal resources. Legal advice has to do with the interpretation of a particular statute or the outcome of the case whereas legal resources/information is providing information about the court processes and next steps. Admittedly, this is a tenuous line. I would advise having a colleague read over your letters to a pro se litigant before sending them out if you are providing legal resources within the letters.

Another helpful practical tip, although costly, is to send any discovery or discovery requests via registered or certified mail. Registered mail is when the person receiving the mail must show a driver’s license. This tactic will avoid any service issues and you are well prepared for a discovery dispute should you need to file a motion to compel. Regarding discovery, I would advise to the best of your ability, to work the issue out with the pro se litigant, as judges tend to be sympathetic to the pro se litigant. There is nothing more frustrating for your client who you are billing for court time, than to get a large bill followed by continuance for the pro se to comply with your discovery request.  I would also advise making your discovery tools as simple as possible. In other words, cutting the legalese out of your interrogatories and making the request for production of documents easily readable.

When dealing with a pro se litigant, at the end of every letter it should be stated clearly who you represent and that you are not their attorney.  In my practice, I have developed a stock phrase that I put at the end of every correspondence with the opposing party so that the language is consistent between myself and the pro se litigant. The professional rules of conduct provide that there must be no confusion as to your role (MRPC 4.3). The stock phrase allows that there will be no confusion.

 For the particularly complicated phases of the litigation, such as the pre-trial conference, you may want to advise the pro se litigant of limited assistance representation. There are over 2000 certified limited assistance attorneys currently on the list in Massachusetts. If you’re unfamiliar with limited assistance, you may want to look at the limited assistance rules to understand their scope and responsibilities operating within that role. According to the Chief Justice’s office, to those who are unfamiliar with limited assistance representation, understanding the role of a limited assistance attorney can be a problem in need of clarification (see Standing Order 1-11).

You want to advise your client that you need to educate the pro se litigant on the process in order for your client to achieve the ultimate goal which is a divorce and an equitable division of assets. This strategy will show the judge that you are at least trying to work with the pro se litigant if the situation becomes tense between you and the opposing party. The more effective you are at facilitating the pro se litigant’s case will inevitably lead to better results for your client.

Another challenge is the danger of losing your professional objectivity with regards to advocating for your client. I don’t mean anything drastic, like “sleeping with your therapist”.  All joking aside, this is a serious consideration since at times you interact with the pro se litigant more frequently than even your own client.  You may empathize with their situation/story but you need to constantly remind yourself that you’re representing your client and keep your client’s objectives in mind. This can be as simple as not appearing too chummy with the pro se litigant as it appears to your client that you are not advocating for him or her.

The other consideration when you are in Court, is that you need to be aware of your client’s needs. Remember that your client is the one paying for your service. Always strive to be sensitive to the fact that from their perspective they, “did the right thing and hired an attorney.” Often, if I know there is a pro se litigant on the other side, I will discuss up front the fact that I will need to correspond with and educate the pro se litigant on the process and that the client will not be billed for that time.

The ultimate goal is that of trust. By that I mean, the pro se litigant has to trust you enough so that you’re able to facilitate the process. They have to be able to trust the information that you’re giving to them is accurate such that they can make their own decisions. You have a duty of candor as well as zealous advocacy and one must navigate those mind fields when working with a pro se litigant. In other words, you have an obligation to advocate for your client while providing accurate legal information to a pro se litigant with respect and civility.

In conclusion, a pro se litigant can be difficult, costly, time consuming, and scary. The pro se problem is here to stay. Given the economic realities of the legal profession and the accessibility of legal resources and technology advancements that are in our society, it is best for lawyers to be prepared and effective advocates when dealing with pro se litigants, but at the same time realizing that they are part of the legal landscape and they are probably here to stay

[1] Pro Se Litigants the Challenge of the Future. Page 18. Report of the Massachusetts Probate and Family Court Bench/Bar Conference held April 9, 1995.

[2] “Learning to Live with Pro Se Opponents.” Go Solo Magazine. November 2005.

[3] “Is there Such a Thing as An Affordable Lawyer?” The Atlantic. Pg. 3.

[4] “Learning to Live with Pro Se Opponents.” Go Solo Magazine. November 2005.

Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC.  His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation.  He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.

Brian is a graduate of Boston College, magna cum laude, and Boston College Law School. His article Not Your Average First Year appeared in the July 2011 edition of the Massachusetts Lawyers Journal.