Sep 24, 2013
How To Handle Pro-Se Adversaries
by Barry Seidel
In the per-diem world I regularly encounter pro-se adversaries (people representing themselves).
In New York City Civil Court (jurisdiction up to $25,000), people often appear pro-se. Many of these are debt collection cases, but I have been involved in all kinds of civil litigation where one side (the other side from my side) was pro-se. One might assume that those representing themselves have fools for clients. Indeed, sometimes they are fools, but if you assume it, you will prove another axiom, where assume makes an ass of u and me.
A few observations:
1. When you conference a case with a pro-se and a Judge, or a pro-se and a Judge’s clerk, you will often find the pro-se suddenly has a lawyer……the Judge!! This is not supposed to happen, but it happens. Your job is to not let it happen that way. Here’s a tip….conference the case with the pro-se before you conference with the Court. I always tell them that we don’t have to do it but we are allowed to, that they don’t have to talk to me if they don’t want to, and that in any event, after we talk we will have a conference with the court. If they agree to talk (and 90% of the time they do) I try to find out what the issues are, and I keep it non-confrontational. When we conference with the Court, I will often say, right in front of the pro-se, “We have been discussing the issues, and if it will be helpful, I’d like to summarize what we talked about” then I look right at the pro-se and say “If I don’t say it right, or if I leave anything out, please stop me, I want the Court to have a clear understanding of what this is about”. I think most people are so nervous to talk to a Judge or a Court attorney, they are relieved that I am explaining it. I then tell it as straight as I can, and if they want to jump in, I let them. I find this approach limits “court advocacy” and encourages the pro-se litigant to explore settlement.
2. Sometimes pro-se adversaries study up and want to follow every rule, call you on every technicality, and play lawyer with you. They have a right to do this, and they assume this is what lawyers do. Of course, most lawyers, especially in Civil Court, don’t do this. We usually try to figure out what the case is really about, and find a fair way to resolve it. I laugh to myself sometimes when the pro-se defendant makes some brilliantly technical legal argument to the Judge, and the Judge says “Yeah, but do you owe the money or not?”
3. Sometimes you have to go to trial against a pro-se. This is usually after you have made exhaustive efforts to settle the case. When this happens you need to carry this case around with you: Roundtree v Singh 143 AD2d 995. (or whatever case in your jurisdiction says the same thing). Essentially, this case says that a pro-se doesn’t gain any greater rights by being pro-se and unfamiliar with law and legal procedure. If they don’t know how to make out a prima facie case, or if they don’t know how to get their evidence in, too bad. The Court can’t help them, and if this happens you must object based on Roundtree v Singh. Sometimes when you really make them follow procedure and they realize they could lose….they settle.
4. Along these same lines, sometimes if I know from the prior conferences that the pro-se is really wacky, I don’t object on technicalities. I let them go on, and on, until I am sure the Judge realizes we are dealing with a nut. Then I reel the situation in. What often saves everyone in these nut-ball situations is that at the conclusion of the trial the Judge says “Decision reserved”. No fireworks, most Judges will do their job properly, and the decision will come later.
Quick story: I once tried a credit card debt case where the debtor owed about $10,000 and at every conference he insisted that “you cannot prove it was me”. He was especially emboldened when he saw that I did not have a witness for trial. All of the charges on the credit card seemed to relate to restaurant supplies for a shish kebab restaurant. However, in all our conferences I did not let on about this, nor did I ever show him the bills and ask him about it. When we got sent upstairs for trial, the Judge told me to call my first witness, and of course I said “I call the defendant.” He yelled out “He can’t do that!”, to which the Judge replied “Yes, he can. Take the stand.” I then asked him questions about where he lived, what he did for a living, and the like. Most of it was not useful, but I did get him to confirm his address (at the time of the bills I had). He also confirmed that in all the time he lived there he never had a problem receiving mail. I really nailed these two items home – correct address and mail being received. I then asked him if he had ever received a bill from my client, and he denied it. I then asked him if he had ever owned a shish kebab restaurant, and he denied it. I asked him if he had ever helped open a shish kebab restaurant, and to my surprise he said “Yes, I have worked in these restaurants all my adult life, and I once helped my friend open one.” I asked “Where was it?” Turns out it was about two blocks from his address. I then took out my $10,000 worth of shish kebab supply charges, and questioned him about it. A lawyer might have objected to this, but he didn’t. He just denied having anything to do with it, but the big red “L” was lit up on his forehead.
When I summed up I had a grand old time. I’ll spare you the details.
The pro-se defendant’s summation was “He didn’t prove nuthin”.
The Judge said “Decision reserved”.
When I got the decision in the mail I already knew: A well earned winner.
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