Family lawyers must employ special strategies when negotiating with the pro se party. Which strategy to use depends on the nature of the pro se litigant.
By Gregg Herman, Family Lawyer
Pro se parties are perfectly capable of winning cases – perhaps even more so than licensed lawyers, since courts often strive to protect them. Therefore, the first thought when dealing with a pro se litigant should not be how you are going to win at trial, but what strategies you can employ to avoid the risk of trial.
Negotiating with the Pro Se Party: Which Type Are They?
Some lawyers would argue that the only effective strategy for handling the pro se litigant is avoidance. However, I believe that negotiating with the pro se litigant is necessary, and that special strategies must be applied to that circumstance. Which strategy to use depends on the nature of the pro se litigant, who tends to fit into one of the following five categories:
- A litigant who cannot afford an attorney (the attorney for the other side is retained either due to an economic disparity or because the lawyer made a mistake in thinking he would be paid);
- A litigant who is trying to save money;
- A litigant who has a license to practice law but is violating the “client who represents himself” maxim;
- An evil litigant who wants to run up costs;
- A mentally-ill litigant.
5 Strategies for Negotiating with the Pro Se Party
1. The Impoverished Litigant
Probably the easiest variety of pro se litigant, an impoverished one, is neither evil nor seeking an advantage. The settlement strategy is simple because no one is being manipulative and there is little to negotiate.
In this circumstance, the lawyer must protect himself from the perception that he is representing both parties. In cases where one side was pro se we often hear someone say, “One lawyer represented both of us.” But when we look at the file, there are notations in which the lawyer made clear that he was only representing one party.
The disclaimer “I am only representing your spouse” should be made in virtually every communication to the unrepresented party and should advise the pro se party to hire his/her own attorney. Here is some sample language that can be adapted to suit your own style:
“One lawyer cannot represent both parties in a lawsuit, and a divorce action is a lawsuit. Therefore, I am representing only your spouse and not you. Although I will disclose any material facts to you, I have no obligation to give you legal advice, so please don’t ask me for it. If you feel that anything that I say falls into the area of advice rather than information, you rely on it at your own peril. It is highly recommended that you retain your own independent legal counselor to give you legal advice and representation.”
2. The Penny Pincher: Penny Wise and Pound Foolish
You likely don’t know anyone who selects a doctor by cost. Yet many people look for the cheapest representation during divorce. And others, although they can afford and need representation, go without a lawyer solely to save money.
In some jurisdictions, the best strategy for dealing with the penny pincher is to advise him that going without representation requires sharing in your cost. For jurisdictions that are not good at ordering fee contributions, the strategy follows that of the “no funds available” case: do not give legal advice to the pro se party and make ample use of disclaimers in writing.
3. Negotiating with the Pro Se Party: The “Fool for a Client”
Among the most frustrating variety of pro se opposing parties is the self-represented lawyer who proves the maxim: “A lawyer who represents himself has a fool for a client.” It is unclear which is more frustrating: the lawyer who has practiced (or, worse, is practicing) family law, or the lawyer who has never practiced in this field. For the former variety, a little bit of knowledge is a dangerous thing. For the latter, the lack of experience is a gross deficit.
As with the penny pincher, if the fool is representing himself to save money, the threat of a contribution may be successful. After all, the fool should prefer to pay his own lawyer rather than his spouse’s.
4. The Evil One
As all lawyers know from bitter experience, some pro se litigants are pure evil. The evil manifests itself in numerous ways: ignoring the law, ignoring court orders, taking unreasonable positions, engaging in intense litigation, and more.
There is no effective means of dealing with pure evil. The best strategy is to avoid it as no case is worth the aggravation. If you cannot avoid it, you must minimize harm to your client (and yourself). Under no circumstances should you play the evildoer’s game. Your best hope is that the legal system does its job of punishing evildoers and protecting their victims. However, reliance on the legal system should be a fallback position. Avoidance is the best strategy.
5. The Mentally-Ill One
The mentally-ill pro se litigant is a subset of the evil one; and, once again, there is no perfect strategy. In fact, I’m not sure there is any effective strategy.
Sometimes, all you can do is try not to make things worse. First, recognize the problem and your inability to fix it. Second, avoid being crazy yourself. The court does not need two crazy lawyers, even if one is acting that way in retaliation. If you are caught in this impossible situation, maintain your professionalism and demeanor at all times. Create a contrast, not a duplicate.
Risks in Negotiating with the Pro Se Party
Special risks exist when the other side is not represented. Other attorneys may misrepresent what you say, but in situations in which the other side has a license to practice law, at least rules apply to mitigate the risk. No such rules apply with the pro se opposing party, so it’s important to always have a witness whenever you meet with the pro se party.
Attorney Sondra Harris notes: “It is important not to overreach or try to make an agreement ‘too good’ when negotiating with an unrepresented party. A court will set aside an agreement if the court feels that it is unfair as opposed to simply being a ‘bad’ deal. Thus, a lawyer must strike a balance between getting as much as possible for the client and still striking a fair, good-faith settlement that will stand up to court scrutiny.”
Harris advises having written ground rules agreed upon prior to a meeting, including start and end times, no rude behavior, an agenda, and rules of conduct specific to the circumstances.
Another risk is that the pro se party is feeling you out for compromises and taking any proposed deal to another lawyer to see if it can be sweetened. Therefore, don’t back yourself into a corner with any proposed settlement. Rather, if a settlement is close but the pro se party seems to be leaving room for late maneuvering, don’t make your final offer. Leave room for future negotiating so that you can make some final compromises and still end up with an acceptable settlement.
This article has been edited and excerpted from Settlement Negotiation Techniques in Family Law (© 2013 American Bar Association) with permission from the author. It is available for purchase on the ABA website.
Gregg Herman is a family law attorney with Loeb & Herman, S.C., Milwaukee, WI. He is certified as a specialist in family law trial advocacy by the National Board of Trial Advocacy, and is a past chair of the Family Law Section of the American Bar Association. www.loebherman.com
Family Law Mediation: A Response to the Rising Pro Se Tide
When provided by a mediator who is also a family lawyer, family law mediation bridges the gap between each party hiring a lawyer and the parties having no legal guidance at all.
This is the worst law advice I have ever read. Literally. Limiting potential characteristics of potential adversaries not only puts your clients at a disadvantage in the courtroom, but you at a disadvantage in your life.
My sister would like to hire a family lawyer that will be able to help her out because she would like to get custody of her son. I agree with you that that the chosen lawyer should be keen on negotiations. Thank you for clarifying that one lawyer is not allowed to represent both parties here as well.