In the introduction to this series of tips, I offered you two central bits of advice: 1) be nice; and 2) never communicate with your pro se opponent orally. Keep them in mind as you review the following suggestions.
1. Don’t Take Advantage
Along those same lines as the last tip in my earlier blog, don’t mislead. Don’t take advantage of the fact that you’re a lawyer and your adversary is not. Maybe it’s not a full-on ethical violation, but it’s just shady. Don’t tell the pro se something that’s not completely inaccurate but not the practice of the court, either.
2. Be Kind
Being kind can pay off. Being anything else will not help you, in the eyes of the court or in front of your clients, so either ignore the pro se’s rudeness or try to defuse it. If you’re in court, most of the time the judge will take care of it. Not always. Occasionally, you’ll alert the court that the pro se is taking shots. Usually, at that point, the judge will make it stop.
Civility is critical but you must be careful with pro ses; they are more likely to file sanction motions, appeals, and grievances. If you’re not really clear what your role is, i.e., that you don’t represent him or her and that you do represent the other side, you could end up with a bar complaint. So, you should be kind, but also clear that you cannot and will not give them legal advice.
3. Put It In Writing
Negotiating with a pro se is grueling. Family law cases can take a long time to get to trial. Memories are short . . . and inaccurate. Misunderstandings are easy when emotions are running high (for him or her). Therefore, always communicate with a pro se either in writing or on the record. Doing so will also discourage pro ses from misstating what you said in court.
That said, avoid easily misinterpreted legalese. Try to write so that your opponent can understand what you’re trying to say.
4. Stay on the Record
Remember, a judge’s chamber is often used to conference a matter. These conferences are often not “on the record.” With a pro se, stay on the record. Explain to the court (and to the pro se) that this will avoid future misunderstandings and/or misinterpretations of what is discussed or agreed “in chambers.”
5. Resolve Matters Without the Court’s Intervention
In a contentious litigation involving a pro se, you may be tempted to move to sanction the pro se for failing to comply with the rules. Consider first whether that is the most effective means of resolving the issue.
While pro ses are, in theory, held to the same standards as lawyers, in practice, many courts give them leeway and rarely sanction them for violating rules, unless their violations are egregious or repeated. Thus, your more cost-effective strategy may be to attempt to work through such issues directly with a pro se, with a motion for sanctions reserved as a last resort.