We’ve all been there – representing a client against someone who has never heard, or doesn’t believe, that “A lawyer that represents himself, has a fool for a client.” Either because of lack of resources, knowledge, interest, or energy to even see if there are legal aid or referral sources available, there are litigants that take the DIY attitude of fixing their house into the courtroom.
Where does that leave you and your client, who is paying you a not too nominal sum to represent and advocate for it? Clearly, the trial judge is not imbued with the responsibility of assuring that the pro se litigant is advised of every procedural and substantive claim or defense. But, in the real world, human nature being what it is, and given the fact that a lot of judges are popularly elected, there is a tendency for trial courts to hold pro se litigants a little less accountable for compliance with procedural rules. Should that be the case?
The Tennessee Court of Appeals, in Sanders v. First Tennessee Bank National Association, Case No. E2017-01814-COA-R3-CV, decided May 23, 2018, helped answer the question:
Individuals who choose to represent themselves are proceeding subject to the following guidance:
Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.
The courts give pro se litigants who are untrained in the law a certain amount of leeway in drafting their pleadings and briefs. Accordingly, we measure the papers prepared by pro se litigants using standards that are less stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the litigation to the courts or to their adversaries. They are, however, entitled to at least the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts cannot create claims or defenses for pro se litigants where none exist, they should give effect to the substance, rather than the form or terminology, of a pro se litigant’s papers.
Young v. Barrow, 130 S.W.3d, 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted; emphasis added).
The “takeaways” are:
- Treat your pro se adversary with respect and fairly – the trial judge will appreciate it and you’ll be rewarded;
- Do not appear to “take advantage” of obvious deficiencies in the adversary’s case; just respectfully point them out to the court;
- Trust the trial judge to do the right thing; an overbearing attitude might backfire;
- Paraphrase the Sanders case for the trial court.