by: Dr. Shelley Spiecker
In-house counsel calls you on the eve of trial, admonishing “I trust you know I expect you cannot lose this case. After all, your opponent is a pro se plaintiff.” But surprisingly, you can lose. In addition to never underestimating a pro se’s appeal to jurors, the following steps will help insulate your advocacy and case’s persuasiveness against juror bias in favor of, and judicial deference toward, a pro se litigant.
1. Secure protective procedures for the pro se’s direct examination. At your earliest opportunity, seek clarification from the court on how the pro se’s direct examination will be conducted. Various structural ground rules can be implemented to protect against the pro se interjecting inadmissible information into a direct examination monologue. These include:
- Advance exchange of the pro se’s direct examination outline ,
- Having the court require the pro se to introduce direct testimony in a topical format.
- Previewing each new topic area in advance and thus affording you the opportunity to object to subject areas before the testimony is asserted.
- An admonition by the court reminding of the rules of admissible and inadmissible evidence.