By Rayeed M. Wendt Ibtesam
Self-represented litigants, or pro se parties that represent themselves in court without full representation by counsel, are fairly common in various areas of law, including insurance subrogation. In subrogation, insurance companies generally assign counsel to defend their insureds in lawsuits. Uninsured defendants are not provided with counsel, and are often unable to afford to pay an attorney out of pocket; forcing them to proceed pro se. Self-represented parties come with their own set of opportunities and challenges.
An attorney needs to adjust her trial strategy and expectations in several ways when it comes to handling these cases. Some lessons from my experience are as follows:
First, communication and negotiation with self-represented litigants can be significantly different than that with opposing attorneys. Attorneys understand that they are bound by a code of professional conduct that fosters trust among members of the legal community. Self-represented parties are unlikely to be aware of this code, and may have a sense of mistrust in the opposing attorney’s words and actions. This mistrust may hinder communication between the parties, and can be a particularly frustrating obstacle during settlement negotiations. Due to unfamiliarity with the legal process, self-represented parties may not realize when an agreement is formed, and may therefore be more prone to unknowingly breaching the terms of the agreement. Similarly, there may be times when an attorney settles a case with a self-represented party by entering into a verbal agreement. However, once the agreement is memorialized in writing, the self-represented litigant may become hesitant to “take the plunge” by signing the agreement. At that point, mistrust has so permeated the process that the only options left to the attorney may be costly to the client. Attempts to restart negotiation are unlikely to be fruitful, and filing a motion to enforce the verbal agreement invokes filing fees and comes with the risk that the judge may show leniency towards the self-represented party. Therefore, an attorney should be intentional when it comes to their communication with self-represented parties and should prepare their clients for potential setbacks.
Second, while some self-represented litigants may be suspicious of the professionalism of opposing counsel, others may inappropriately seek out their advice. Self-represented litigants are generally unversed in the practice of law, and do not understand the implications of their communication. When that happens, it is important to not give legal advice to the self-represented party. Moreover, the attorney should clarify her role in the case, which is to act in the best interests of her client.
Third, an attorney should be prepared for a self-represented party’s absence at key proceedings. Self-represented parties will have varying levels of comfort through different phases of legal proceedings based on their individual experiences. An attorney should not presume that by answering a complaint or engaging in discovery that the party has the fortitude to see the case from beginning to end. An attorney should plan for the contingency that they and their client may be the only party present at a key legal proceeding, and should be prepared to seek the appropriate remedy. Be sure to review the sanctions section in the scheduling order which may allow for the issuance of a default judgment or dismissal against a party that fails to attend a mandatory event like a pretrial conference. These remedies help attorneys avoid the added expenses of trial.
Fourth, an attorney should adjust her trial strategy based on each self-represented party and their understanding of the case. Identifying cases involving pro se parties where an attorney can save costs is a great benefit for her clients. In addition to default judgments and dismissals, there may be other cost saving strategies that could be utilized. For example, in insurance litigation if it appears that a pro se defendant is not likely to contest the plaintiff’s case to a great degree at trial, then the plaintiff’s attorney can consider using only the claim adjuster as her witness to testify as to damages. This strategy could save clients thousands of dollars in expert fees to get a physician or accident reconstructionist to testify. However, an attorney must be sure to be cognizant of the self-represented party’s strengths as well as weaknesses. Self-represented parties should not be underestimated. It is important to remember that a self-represented litigant may be professionally sophisticated or have prior legal experience. Moreover, while an attorney might have dozens of cases, a self-represented party may have the ability to focus all his attention on this singular case in which they are personally motivated. These are important factors to consider when weighing trial strategy.
In the end, it is imperative to acknowledge that self-represented parties act differently than represented parties. An attorney dealing with self-represented parties should remember this fact in every method of communication and in each phase of legal proceedings. Furthermore, an attorney will deliver better, more cost-effective service to her client if she knows how to utilize existing remedies and adapt her trial strategy to each individual self-represented litigant.
Rayeed M. Wendt Ibtesam is an associate attorney at Yost & Baill. He manages the firm’s Minnesota Automobile Subrogation Group. He is a 2017 graduate of Mitchell Hamline School of Law.