February 8, 2010

Never Underestimate a Pro Se Plaintiff

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…

by: Dr. Shelley Spiecker

Spiecker_88_120 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 [1],
  • 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.

2.  Videotape the pro se’s deposition testimony.  Our experience of the past 20 years consistently proves that jurors view deposition testimony as more accurate and truthful than trial testimony.  Thus, to the extent there is any discrepancy between the pro se’s trial and deposition testimony, you can use the videotape to impeach and maintain your likeability for jurors.

3.  Plan for a vigorous and assertive voir dire.  Recently I assisted defense counsel by drafting voir dire questions designed specifically to identify pro-pro se litigant bias.  Four jurors admitted to such bias during voir dire, one woman saying she would be biased in my defense client’s favor, saying the plaintiff was “foolish” and “too self-assured” in forgoing the option of counsel.  The three remaining jurors said they would be more sympathetic and lenient to the pro se plaintiff.  All three of these latter jurors were stricken for cause.  We also voir dired on the role of objections in trial, focusing on the theme that in order to be fair to both sides, at times, objections are necessary.  None of the jurors indicated they would be biased against defense counsel for objecting, even if the pro se plaintiff never once objected.  After the trial (in which we got a directed verdict), counsel spoke with the jurors who unanimously said they had been prepared to understand the purpose of defense counsel’s objections and they were not concerned about his use of objections.  This jury selection took the larger part of an entire day.  Plan in advance to request expanded voir dire time from the court, explaining the need to explore for bias beyond case-related attitudes and the need to get into attitudes toward attorneys, the judicial process, and individuals who choose to represent themselves in the process.

 

4.  Request an expanded pre-instruction to the jury regarding the issues in dispute.  In cases involving a pro se litigant, you benefit if jurors clearly understand prior to the pro se’s opening statement, an exact outline of the issues in dispute.  That way, jurors can evaluate information relevancy for themselves, freeing you to focus on the proactive assertion of your case strengths without need to address all of the tangential points the pro se litigant is likely to introduce.

 

5.  Curry favor with the court:

  • Help your opponent with jury instructions and guidance on the legal process (e.g., the need to subpoena non-designated adverse witnesses)
  • Be patient with the pro se litigant.  In the exemplar employment defense case, the pro se plaintiff conducted a five hour adverse examination of a critical defense witness.  Defense counsel kept objections to a minimum, the witness was well prepared to maintain her stamina and to field random, non-sequential questions.  Jurors tired at the repetitive questioning, and eventually the court asked the pro se litigant how much longer he planned to go on, which sent an obvious message to the jury.

Jurors interviewed in the exemplar employment case agreed they would have voted for the defense (absent the directed verdict.)  However, the majority of jurors all agreed they had sympathy for the pro se plaintiff and they wished they could have “helped” him in some way.  Fortunately, with the four above tips in place, they were left to stay focused on the admissible evidence and to not let empathy influence their evaluation.


[1] As quid pro quo, requesting an outline exchange may necessitate your willingness to exchange your direct examination outlines.  More often than not, however, the advantage you gain in keeping inadmissible information from the jury overshadows the tactical advantage your pro se opponent gains from seeing your topic areas, which she presumably is attuned to via knowledge of the issues in dispute.

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