You enter the courtroom and find the opposing counsel table occupied, not by a fellow member of the bar, but by a pro se litigant.1 You pause for a moment, and think “Do I change my presentation? Do I adjust my approach?”
Meanwhile, the judge enters the courtroom, sees the pro se litigant, and thinks “Do I change my presentation? Do I adjust my approach?”
The number of pro se litigants is on the rise throughout the United States, and Wisconsin is no exception.2 According to Rock County Circuit Court Judge Michael Fitzpatrick, it is common to see pro se litigants in divorce actions, injunction proceedings, traffic citation prosecutions, and on the defense side of mortgage foreclosures.
Judge Fitzpatrick has also seen a recent increase in pro se litigants appearing in personal injury actions, both on the plaintiff's side and on the defense side (when the defendant was without automobile insurance).
Why More Pro Se Litigants?
There are many possible explanations for this increase. Perhaps it is purely a matter of finances, as litigants are often unable to afford an attorney of their own and are forced to represent themselves.
Perhaps the increase is a consequence of the internet and the ease by which litigants can locate legal forms, cases, and other forms of legal guidance. Perhaps the plethora of “Court T.V.” programs that present the litigation process in simplistic terms lead litigants to think, “I can do that.”
Whatever the reason, the presence of pro se litigants forces courts and attorneys to adjust their practices.
Three Judges, Different Approaches
When judges encounter pro se litigants, the ultimate goal remains the same, namely, to “search for truth and justice,” says Grant County Circuit Court Judge Robert VanDeHey.
But, to accomplish that goal, judges will take differing approaches.
Judge Fitzpatrick employs a three-step approach when presiding over cases involving pro se litigants: Refer, simplify, and assist.
In step one, Judge Fitzpatrick suggests to the pro se litigant that he or she obtain legal assistance and provides information about various legal services organizations. He also explains that the judge cannot act as an attorney or advocate and stresses that he will not do so.
If the pro se litigant proceeds without counsel, Judge Fitzpatrick will move to step two and attempt to simplify the process as much as possible. The many pro-se court forms now available on the Wisconsin Court System and Western District of Wisconsin websites help facilitate this step.3
In addition, Judge Fitzpatrick will identify issues about which there is agreement and provide guidance on what forms need to be completed to memorialize those agreements.
On Seeking the Burden of Proof
If there are contested issues, Judge Fitzpatrick carefully proceeds to the third step – assisting. He recognizes that judges differ on how to preside over contested cases involving pro se litigants.
Some, like Judge Fitzpatrick, believe that because a judge must remain neutral, the judge may not ask questions. Judges following this line of thought believe that, once a judge asks questions, the judge is shaping the presentation of evidence and influencing whether the pro se party meets his or her burden of proof.
Other judges, like Judge VanDeHey and Monroe County Circuit Court Judge David Rice, take the position that some amount of questioning is appropriate, and in fact necessary, as pro se litigants are often not able to present the evidence necessary for the court to make a decision. Judge Rice views his role in the process as ensuring the relevant facts are presented, so he can make an appropriate ruling.
Judges Advise Attorneys: Treat Pro Se Litigants with Respect
Although there are differences in how judges preside over contested cases involving pro se litigants, judges have similar advice to attorneys who are on the opposing side of a pro se litigant. Judges Fitzpatrick, VanDeHey, and Rice all agree that attorneys must treat pro se litigants with respect, both in writing and in person.
Judge VanDeHey does not appreciate “sharp practice” generally, and states that it is particularly inappropriate when the opposing party is not represented by counsel. The court is searching for the truth, and that type of practice can actually obstruct that search.
Judge Rice agrees that if an attorney acts like a real “barn burner,” that style is simply not effective, particularly in a case where the other party is pro se. “Take a low-key approach,” he says. “Have faith that if a self-represented litigant displays an emotional or contentious attitude, such an attitude does not help, but rather, harms his or her case.”
Judge Fitzpatrick suggests that by treating pro se litigants fairly, attorneys enhance their own credibility with the court.
Judge VanDeHey suggests that while attorneys are required to provide their clients with competent and diligent representation, attorneys must also be mindful of their duty of candor to the tribunal. According to Judge VanDeHey, attorneys must “strike a balance” between these duties.
Maintain Proper Courtroom Decorum
Finally, attorneys should comply with the rules of courtroom decorum. According to Judge Rice, one of the greatest challenges in cases involving pro se litigants is to get those litigants to comply with the rules of decorum.
Pro se litigants often know nothing about the courtroom process except for what they have seen on television.
With so many television programs showing abusive judges and unreasonable parties, it is not surprising when pro se litigants attempt to imitate those actions.
The key, according to Judge Rice, is for attorneys to maintain proper decorum, because when pro se litigants do not, they are harming themselves. Judges notice these transgressions and consider them when evaluating the credibility of the parties, witnesses, and attorneys and ultimately determining the outcome.4
1 “Pro se” is Latin, meaning for one's own behalf. Black's Law Dictionary 1221 (6th ed. 1990).
4 The author would like to thank judges Robert VanDeHey, Michael Fitzpatrick, and David Rice for their willingness to be interviewed and their contributions to this blog.