by Sonya H. Hoener
The file arrives in your in-box. You glance at it, and see that the other party is appearing pro se. You immediately feel the same way a Gator fan does upon seeing UAB, Ohio University or Louisiana-Monroe on the football schedule — you have some one to pick on.
You immediately begin dictating voluminous discovery to overwhelm the other side. You file a motion to dismiss, even though the pro se plaintiff has followed a form book verbatim and has alleged (albeit inartfully) enough to state a claim. You do things that you wouldn’t do if the other side had an attorney.
In other words, you are trying to run up the score on a lesser opponent. Although it happens frequently in sports, it shouldn’t happen in litigation.
The Preamble to The Florida Bar’s Rules of Professional Conduct provide that “A lawyer should use the law s procedures only for legitimate purposes and not to harass or intimidate others. Zealous advocacy is not inconsistent with justice.” R. Regulating Fla. Bar, Ch. 4, Preamble. The Guidelines for Professional Conduct promulgated by the Trial Lawyers Section of the Florida Bar and adopted by the JBA provide that “A lawyer should be courteous and civil in all professional dealings with other persons.” General Principles, (A)(4). These rules, of course, apply whether the opposing party is represented or proceeding pro se. The rules unfortunately do not provide specific guidance for dealing with pro se parties, other than requiring that an attorney not state or imply to an unrepresented party that he or she is disinterested. R. Regulating Fla. Bar 4-4.3.
Pro se parties, however, may require special handling. For instance, the pro se party may be antagonistic to lawyers in general and to you specifically. The pro se party may feel that the rules of court apply only to lawyers and not to unrepresented parties. If a pro se party is violating a rule, explain that they are doing so and why. Don’t threaten to call the judge unnecessarily. For instance, if a pro se plaintiff asks your client for privileged information, cite the specific statute, showing them the actual text if possible, and explain that the information does not have to be revealed pursuant to Florida law. Sometimes it helps to emphasize that Florida law or a Florida court rule requires or prohibits certain conduct, and to show him the actual text of the statute or rule. The opposing pro se party then realizes you aren’t just making up the rules to intimidate him.
By proceeding pro se, the other party has already demonstrated some distrust of lawyers. Don’t aggravate it by behaving unprofessionally. Although running up the score may boost a college football team’s AP ranking, doing it against a pro se party will not improve your standing as an attorney.