01/03/2022
DEALING WITH THE DIFFICULT PRO SE OPPONENT - PART 1, WHAT TO PRESENT TO THE JUDGE
Almost every attorney has had to deal with a difficult pro se opponent at one time or another.
In general, these pro se opponents fall into one of two categories - one, the opponent who is genuinely overwhelmed by a legal system with unfamiliar rules and deadlines and two, the pro se opponent who uses his or her lack of an attorney as a weapon, refusing to respond to discovery, loudly proclaiming that everything is unfair because he or she has no money, refusing to produce documents and so on.
The question for the attorney is how to deal with this second type of opponent while still accomplishing what is needed for the client. The key to this situation is the Judge and what he or she thinks is required in order to ensure the pro se opponent is treated fairly.
In order to make decisions that ensure that not just the pro se opponent but that also you, as the opposing attorney, are treated fairly, the Judge must have all of the facts.
Sometimes the opposing attorney will hesitate to tell the Judge all that the pro se
opponent has done for fear of sounding as if he or she is bullying a party who is unrepresented..
I had a pro se opponent once who had given an address the Court that I used to serve her by mail. The mail was never returned. When I began personally serving her with written discovery, she was supposedly never at home and only left her house once she was sure the process server had left. I then began sending her copies by certified mail, return receipt requested. The post office returned the mail with the notation that there was no mail receptacle or forwarding address. Even the Court’s mail to her was returned with the same notation. As a last resort, I served her by email which was not returned.
The question for me was whether to let the Judge know every detail of the pro se defendant’s mockery of the legal system or whether to settle for just telling him that she had not responded to any discovery.
On the one hand, I could look like I was beating up on someone who did not have an attorney to ensure that she responded timely to discovery. On the other hand, the Judge needed to have all the essential facts to rule on the Motion to Compel that I had brought.
As it turned out, I revealed everything the pro se opponent had done to avoid service, and the Judge angrily lectured the pro se opponent that she must accept service and respond to discovery despite not having an attorney. He also awarded attorney fees for her failure to do so.
This, of course, does not guarantee the same outcome for every case, but it may be a caution to be sure when a pro se opponent is involved, particularly when the opponent is trying to take advantage of being unrepresented, that the Judge has the facts he or she needs to make appropriate decisions.
