|Mark M. Whitney is a senior associate at Morgan, Brown & Joy, LLP, in Boston. He practices employment litigation and counsels companies about personnel management and statutory compliance issues.
As someone who litigates employment claims on behalf of management primarily in state and federal courts, one of the first things I do when a client presents me with a new complaint is to glance at the last page. If the complaint has been signed by an attorney, I breathe an initial sigh of relief. As anyone who has ever litigated against a pro se employment plaintiff knows, it is usually preferable to have an attorney on the other side of the "v." Defending cases brought by a pro se plaintiff requires a modification of your approach and litigation tactics.
Assembled in this article are a variety of observations and management-side practice tips for dealing with pro se employment plaintiffs. These insights stem from my own experiences litigating against numerous pro se employment plaintiffs, with additional input from several of my colleagues. The ideas collected herein are valuable, regardless of whether you are handling your first or 50th pro se case.
Profile of the pro se employment plaintiff
Even though many of the laws governing the employer-employee relationship provide for the payment of the prevailing plaintiff's attorney fees, there are many reasons why a plaintiff may not have counsel. His case may have been turned down by one or more counsel. He may consider attorneys' hourly or contingency fee arrangements to be exorbitant, or he may have been unable to find a lawyer willing to take his case on a pure contingency fee. He may also be (or think he is) an experienced and savvy litigant who savors representing himself.
As employment lawyers know, human factors such as anger, rejection, pride, personality, revenge, reputation and other emotions significantly influence the litigation of employment cases. Employment litigation typically involves intensely personal and sometimes lurid and embarrassing allegations. Regardless of whether their case has merit or not, pro se employment plaintiffs often feel victimized and are obsessed with obtaining justice. The nature of the plaintiff's allegations will often push the defendant employer to fight the suit "on principle," with less regard to cost, and for longer than it might otherwise fight a typical commercial case. In short, the passions run hot and both sides become entrenched in their positions quickly. A critical function of employment lawyers on both sides of the case is to serve as the voice of reason to their clients; to act as a buffer between the parties and their passions. Pro se employment plaintiffs lack this buffer.
It is also important to understand that most pro se employment plaintiffs have a distorted perspective about their chance and measure of success. Employment lawyers know that the overwhelming majority of cases settle for some fraction of the initial demand, are won by defendants on dispositive motion, or won by the plaintiff in an award amount that does not catch the attention of the press. Simply put, $30,000 settlements are not generally newsworthy. Many pro se plaintiffs do not appreciate that reality and, instead, are more inclined to view their case as comparable to one of the multi-million dollar cases they saw in the news.
Perception of events is especially critical in employment cases. The successful and efficient resolution of employment cases often involves the ability to appreciate that valid and differing perceptions may derive from the same event. Pro se employment plaintiffs tend to see the past in one light. To them, everything is black and white, right and wrong. Lawyers, on the other hand, are trained to recognize the risks presented by and assign dollar value to the many shades of gray that are so central to employment cases. Thus, the absence of an opponent who is willing to assign value to the different inferences created by circumstantial evidence is a common element of a pro se case.
Another common trait shared among pro se plaintiffs is their lack of knowledge of rules of procedure and evidence. In addition, pro se plaintiffs are typically unskilled in adversarial proceedings and many have difficulty distinguishing between relevant and irrelevant issues. As set forth below, this knowledge and skill deficit can sometimes work to your advantage. It will also, without fail, increase the amount of work required of defense counsel and the resulting cost to defend.
Tips for defending against a pro se employment plaintiff
1. Right away, find out what's bothering them.
This is good advice for any case, but especially in pro se cases. In addition to establishing a good rapport with the plaintiff, this initial call will enable you to size up the seriousness of the case and, perhaps, the plaintiff's resolve. You might also find an opportunity to resolve the case inexpensively at the outset.
2. Avoid the urge to file a 12(b)(6) motion.
Pro se plaintiffs commonly serve unintelligible complaints. While you may be able to guess what they are claiming, the rules do not require you to do so. You could file a motion to dismiss, but courts generally will be lenient when evaluating a pro se litigant's complaint. Even if your motion were granted, the order of dismissal would likely be without prejudice to filing a proper complaint. Instead of moving to dismiss, move for a more definite statement. This motion can be made more than once, if necessary. Your subsequent motion to dismiss will have a greater likelihood of success if the plaintiff has had the opportunity to respond to a motion for more definite statement.
3. Find out how your judge views pro se litigants.
In theory, black letter law in Massachusetts purports to hold a pro se litigant to the same standards as if they were represented by counsel. However, this does not always happen in practice. Often, the court holds the lawyer to the rules and standards that it expects the lawyer to be aware of and gives the pro se plaintiff considerable leeway.
It is therefore important to understand how your judge views pro se litigants. This will enable you to gauge how much latitude the judge will give the plaintiff during the proceedings. Some judges tolerate little or no deviation from the rules of evidence and procedure by pro se litigants. Other judges are more accommodating, and sometimes even provide pro se plaintiffs with proof roadmaps to assist them in pleading their claims. There may be good reasons for holding the lawyer and the pro se to different standards in some circumstances. However, it is important for management counsel to recognize that this double standard may exist.
4. Consider your opponent's litigation experience.
Always research your pro se adversary's litigation history. It may or may not be immediately apparent, but your pro se adversary may actually be an experienced litigator. If your adversary is a "professional pro se," then educate your judge about it, especially if the judge has indicated that she intends to afford some leniency to the plaintiff. You should also determine whether the plaintiff has ever been sanctioned. Although investigating someone's litigation history can be costly, valuable admissions may be contained in court filings or transcripts from prior proceedings.
5. Be careful not to give legal advice.
One of the more commonly asked questions of management counsel by the pro se plaintiff is: "What should I do?" Or, "How do I do that?" You cannot provide legal advice to the pro se plaintiff.
6. The importance of additional communication.
Despite the prohibition set forth in the preceding paragraph, litigating against a pro se employment plaintiff requires an atypical frequency and substance of communication. At the outset, you should communicate that you expect the pro se plaintiff to know and abide by the applicable rules. At the first status conference, you should also ask the judge to remind the plaintiff that he will be held to the rules.
Pro se plaintiffs often fail to abide by or outright ignore rules of procedure. In order to capitalize on the plaintiff's misconduct, it helps if you have been proactive in notifying the plaintiff of his obligations, due dates, etc. Remind the plaintiff in writing when his discovery responses are due. In some circumstances, you may want to telegraph your strategy to seek sanctions for noncompliance with discovery obligations. Warn the plaintiff in writing how you will proceed so there can be no claim of surprise or unfair treatment. When serving motions under Rules 9A or 56, be sure to explain the mechanics of the rule, how the pleadings need to be structured and where and when to send his opposition. Also attach copies of the rules. Many jurisdictions have detailed pro se notice requirements that must accompany dispositive motions. These additional communications make the proceeding more orderly, demonstrate the fairness of your communications with the pro se plaintiff and increase the chance that the judge will rule in your favor on motions relating to the plaintiff's failure to meet his obligations.
7. Consider the usefulness of early ADR.
Due to the unique nature of pro se plaintiffs and the passions involved in employment litigation, enlisting the services of an experienced neutral at one or more points in the proceedings should be considered. When a pro se plaintiff hears about the legal and factual weaknesses in his case from a learned neutral observer, it can result in a reasonable settlement demand.
8. Monitor the docket.
Especially in situations with more than one defendant, you should regularly monitor the court docket to track any filings made by the plaintiff that he may not provide to you.
9. Put it in writing!
This is especially important with respect to settlement negotiations. The last thing you want to face is a situation where a pro se litigant decides several months after the settlement that you misled him in any way. An informative paper trail that reveals your ethical and straightforward behavior can prove to be quite valuable in the future. In some circumstances, it also may make sense to seek the court's approval of the settlement terms. You should also consider asking the court to confirm the pro se plaintiff's satisfaction with and acceptance of the settlement on the record.
10. In settlement discussions, be up front about taxes.
Pro se plaintiffs do not generally appreciate the effect of taxes on their settlement payment. Lump sum settlements in employment cases are often taxed as "supplemental wages," which is a substantially higher tax rate for some employees. On more than one occasion, I have had to seek dismissal of subsequent actions brought by pro se plaintiffs who were unhappy about the net amount they received in their settlement checks. Depending on the circumstances, it may make sense to explain the effect of taxes on the settlement.
11. Move in limine to structure the plaintiff's trial testimony.
The rules of evidence in state and federal court provide that the trial judge is responsible to set ground rules for receiving trial testimony. The rules further require that testimony be free from such things as inadmissible evidence, excessive narrative, argument, scandalous statements and tedious irrelevancies. Courts are also required to monitor trial testimony to avoid the needless waste of time.
In light of these and similar principles, you should consider asking the judge to control the plaintiff's testimony by making him respond to specific questions. It may even make sense to demand that the plaintiff provide the list of questions in advance, to address objections before trial. In so doing, it will limit improper testimony, confine the proof to relevant subject areas and minimize the chance that inadmissible evidence will be presented to the jury.
12. Be especially selective in use of trial objections.
Make trial objections selectively. Of course, you want to exclude the most harmful inadmissible evidence. Conversely, you do not want to create undue sympathy for the pro se plaintiff by objecting at his every misstep. Let the pro se pursue irrelevancies with witnesses - he will eventually anger the jury. In many circumstances, the court will step in and correct the plaintiff. When it is your turn, put your case on efficiently and quickly as possible. This will help you win over the jury.
13. Always take the high road.
No matter how frustrating it might be, always treat the pro se litigant respectfully and with courtesy. If the pro se opponent fails to afford you the same consideration, it will be readily apparent to the judge and eventually the jury.
14 Don't forget to manage your client's expectations.
Pro se cases can also create client relations problems from your perspective. Inevitably, the client assumes that a pro se case should cost less to defend, be easier to win and can be disposed of quickly. As a favor to yourself, and ultimately to your client, be sure to dispel these myths at the outset. You should prepare your client for the different tactics that you may need to employ, the additional work and costs involved, and for the possibility of what could turn out to be a frustrating and protracted litigation.