By Dr. Ken Broda-Bahm:
So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right? Maybe not. Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting. When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development. For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney. If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process: The best of both worlds, legal assistance plus lowered expectations.
This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics. Based on Peter M. Cummins recent article in For the Defense, as well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter.