Pro Se Litigants–Their Mistake, Everyone’s Problem

One of the greatest challenges lawyers face is correcting problems created by the ignorance of pro se litigants. This is usually far more expensive than if both parties had lawyers from the beginning and--despite the expense--is far less successful.

While I was not a good student, I loved my three years of law school at the University of South Carolina. Since then, I work most Saturdays, Sundays, and holidays. I spend hours each week reading recent appellate opinions from South Carolina, the American Bar Association Journal, South Carolina Lawyer, and TechnoLawyer. I read how-to-do-it books by other lawyers on practice and procedure so I can become a better lawyer. I spend much time in legal research for both my clients and my own professional development. As hard as I work, I still make mistakes and understand I have a lot to learn.

Lawyers know Abraham Lincoln got it right when he said, “He who represents himself has a fool for a client.” This is true even for lawyers. When I have a legal problem, I hire a lawyer. I hired a lawyer for a contested domestic case and another lawyer for an uncontested divorce. If I sue a client for a fee, I hire a lawyer to do it. When Erin and I formed an LLC for our partnership, we hired lawyers to represent us. I hired a lawyer to prepare my will and my health care power-of-attorney. My experience is most lawyers hire lawyers for legal issues.

Many clients and laypersons think the law is objective and black and white. It is not. The law is subjective, gray, murky, and changing. A word or phrase means one thing in one context and something entirely different in another.

Pro se litigants who prepare contracts, wills, powers-of-attorney, or other legal documents from the internet insult the legal profession. Those who file pro se litigation and appear pro se in court are even worse. These people walk into the legal system as Mr. McGoo (https://en.wikipedia.org/wiki/Mr._Magoo) walks into the minefields of life, though most do not have Mr. McGoo’s good luck.

The major practical problem of dealing with a pro se litigant, is the ethical prohibition of providing legal advice to an unrepresented opposing party. If I have a lawyer on the other side, I can talk about the law, my interpretation of the law, and why I believe a judge will do this or that. With a pro se litigant, I can only say, “The only legal advice I can ethically give you is to consult your own lawyer.” This constraint makes settlement difficult or impossible.

Maybe I should take the advice of Lord Neaves, stop being annoyed by Pro Se litigants, and reap the economic benefits of the problems they create.

The Jolly Testator Who Makes His Own Will
Lord Neaves

Ye lawyers who live upon litigants' fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate'er your degree,
Plain stuff or Queen's Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession's best friends;
So we'll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.

He premises his wish and his purpose to save
All dispute among friends when he's laid in the grave;
Then he straightway proceeds more disputes to create
Than a long summer's day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the thing ill,
Couldn't match the testator who makes his own will.

Testators are good, but a feeling more tender
Springs up when I think of the feminine gender!
The testatrix for me, who, like Telemaque's mother,
Unweaves at one time what she wove at another;
She bequeaths, she repeats, she recalls a donation,
And ends by revoking her own revocation;
Still scribbling or scratching some new codicil,
Oh! success to the woman who makes her own will.

'Tisn't easy to say, 'mid her varying vapors,
What scraps should be deemed testamentary papers.
'Tisn't easy from these her intention to find,
When perhaps she herself never knew her own mind.
Every step that we take, there arises fresh trouble:
Is the legacy lapsed? Is it single or double?
No customer brings so much grist to the mill
As the wealthy old woman who makes her own will.

I do not own one, but my favorite coffee cup from Amazon says, “Please Do Not Confuse Your Google Search with My Law Degree.”

Categories: Self-Representaton

18 responses to “Pro Se Litigants–Their Mistake, Everyone’s Problem”

  1. Linda says:

    This is so true! I love the poem. Still laughing.

  2. Stacy Lewis says:

    Good article. I often find the same thing when someone has tried to represent himself in a car accident claim and finally comes to the conclusion months later that a lawyer sure would have helped from the beginning.

  3. Mike Polk says:

    Great article, as usual.

  4. R. Scott Gardner says:

    Thank you! Been looking for the variation called “The Wealthy Old Widow Who Writes Her Own Will” and it’s part of Lord Leaves’ poem.

  5. G. Cohen says:

    How incredibly arrogant. It would indeed be wonderful if everyone in this country had equal access to the courts and the expertise necessary to navigate them. But they don’t. Not everyone can afford the thousands of dollars it often takes to hire a lawyer to resolve even a small matter. A June 2013 article in Money magazine estimated that 76% of Americans live paycheck-to-paycheck. A May 2016 article in The Atlantic estimated that nearly 50% of Americans couldn’t come up with $500.00 in a pinch to pay for an emergency. And you’re complaining that pro se litigants are an inconvenience for you. And you wonder why the legal profession is no longer held in the high esteem it once was. As an attorney, I was horribly embarrassed to read this article.

    • I am incredibly arrogant but this post is not evidence of my arrogance. Sending pro se litignts to court is akin to sending the Christians to the lions in Rome. The courts and the profession must do something to stem the stream of pro se litigants in the courts. The pro se litigants make mistakes preventing awards they should receive and allowing awards against them that should never be granted. when two pro se litigants face each other in court, one gets screwed while the other gainsa windfall. When a pro se goes against a lawyer, the pro se litigant has less chance of winning than Donald Trump. The system needs repair. Pro se litigants get raped in mediations and arbitrations and jury trials are worse.

      My sympathies are with the pro se litgants but I am also sympathetic to the other lawyer and litigants who must pay the costs caused by the pro se and then clean up the mess left by the pro se. Litigants.

      If the state want to mandate mediation, I am fine with that but the state should pay the costs of mediation, not heap it on the backs of the people who can least afford.it. The State should also provide courts with minimum filling fees. A lot needs to be done to make courts affordable and accessible to the port but pro se representation is not the answer.

      This reply includes some edits, which affirm I should never write comments from my iPhone.

      • CJ Stevens says:

        G. Cohen said, “How incredibly arrogant.” And, while you explained yourself, I still have to agree with G. Cohan. Although I also agree with you == “Not everyone can afford the thousands of dollars it often takes to hire a lawyer to resolve even a small matter” That is why local bars should have a low-fee program. I’m very pleased that the Western Montana Bar established a program more than 20 years ago to help the “tweens” who had too much money for Western Montana Legal Services but not enough for a private attorney. They deserve excellent representation and guidance, especially important when children are involved in a dissolution of marriage. I never had a ‘slacker’ in 20 years of participating in the program. In fact, none was arrogant or demanding, whereas some paying clients could be demanding and arrogant. I actually enjoyed most of my mando pro bono work because the clients were so easy to work with.

  6. This is a good start, and I agree pro se litigants are taking a huge risk, but off base in his method of approaching a self represented opponent. I deal with them with respect and honesty. Don’t give legal advice, but do not hesitate to make your argument, explain patiently why you think you will prevail, lean heavily on mediation, and get used to the fact that many are unrepresented. In WV, it is 70% or more in family court litigation. And, almost forgot, I make the same deals with pro se litigants as I would with a represented party. It is called “The Golden Rule”. Jbh

    • Thanks for the comment. My purpose is starting this blog was to stir debate. I appreciate responses agreeing with me but the ones disagreeing with me are the most helpful. You and I are in agreement Section 4.3 of the South Carolina Rules of Professional Conduct, “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”

      We may disagree with what is legal advice. My trial practice is primarily domestic relations. I cannot negotiate with an opposing party without giving legal advice. I cannot tell her that her that her adultery bars her claim for alimony because that is legal advice. I cannot tell him child support will be most probably be set under the child support guidelines or what the guidelines require because that is legal advice. Almost any argument I make to a pro se litigant is legal advice.

      I blame the judicial system and the legal profession more than I blame the pro se litigants. When I started practice in 1968, we charged $200 for an uncontested divorce and $300 for a contested divorce. The court file was less than 10 pages at the end. Today, most potential clients cannot get an initial interview for $300, the initial documents served with the summons usually exceed 10 pages, filing fees and motion fees usually exceed $200, and the client has spent $3,000 or more by the time we have a temporary hearing. Then the expense starts. How do we resolve these problems to avoid pricing the middle class out of legal representation?

      • Mike Polk says:

        There are some big thinkers out there working on some of these issues. Here is a link to an article I find fascinating: https://www.linkedin.com/pulse/connecting-dots-state-law-larry-bridgesmith-j-d-?trk=pulse_spock-articles

        I do not practice family law, so my experience with pro se litigants is limited to the civil side and probate. I agree with two of your main points: dealing with pro se litigants (1) is often difficult (and frustrating) for attorneys and the system and (2) always presents ethical challenges.

        • Mike Polk says:

          Here is a link to the ABA report on the future of legal services, in case you are interested: http://www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf

          • I have read this report and that of 2-3 states. See my other post about my Future of the Law Committee.
            And I attended The Lawyerist’s (podcast/website) TDBLaw Conference in St. Louis.
            These ideas and issues are exactly what I think future of the law devotees and committees should be tackling.
            Alas, perhaps not politically, but lawyers are a conservative bunch, and sometimes surprisingly tentative in trusting to their own good judgment and ethical sensibilities.
            But, what if you are doing a QDRO and can slip in a survivorship provision for your client that will benefit her at his detriment? That’s a tough one. Would you tell your adversary not to do it if she were a lawyer? Not everything is black and white.

      • I interpret my conversations with WV State Disciplinary counsel that we have obligatio to deal with pro se litigants as we do with other lawyers, so we MUST qualify it that we cannot advise, but we can advocate and argue. I am convinced of that.
        And, I am the chair of The Future of the Law committee of the WV State Bar.
        I am big on the idea of unbundling legal services, innovative approaches, and reasonable risk taking.
        That is why his is so essential that the arguments be honest, with sound support.
        Most cases hinge on differing views to the facts.
        I often bring in my staff so I cam give the warnings at the beginning of a meeting and the caveats at the end.
        In a recent case the parties came in to discuss the meaning of our proposed parenting plan.
        Her lawyer had with drawn. I explained the terms as best I can.
        Now that I know her worries, I will cover them carefully when they testify in support of their parenting plan agreement and Property settlement agreement.
        As I said, the key is the golden rule. Recently I was so civil and accommodating to my pro se adversary, that I got fired in favor of someone who promises to “give her hell”. That is the mother of his child that he wants to put it to!
        I have a certain style and personality that allows me to work with pro se litigants fairly and professionally. It won’t work for the lawyer whose plan is to “take her to the cleaners”.
        My view is that the long term goal is best interests of the children, which are enhanced if the compromise is fair. 44 years and no ethical blemishes yet. We really don’t disagree that much.
        I have written many blog articles on the perils of self representation, and one entitled, “An option for the person who cannot or will not hire a lawyer in their divorce.” It is an unbundled $500 robust consultation, with a tad bit of ghost writing thrown in. Half the time, the client decides the job is too daunting and hires me.

  7. Alan Fink says:

    I recall a survey that concluded most consumers said the best bargain for their money was buying chicken and TV’s. The worst was paying an attorney. There is a lot of truth in that. Unfortunately most consumer’s exposure to an attorney is at times of personal and financial crisis, not the best time to evaluate the return on investment in legal services. We need to take a long, hard look as to how we present ourselves and how we are presented in the media. As long lawyers advertise like plumbers and charge “unreasonable” fees,people will try to DIY regardless of the result. We need to be more consumer oriented and understand that the average guy cannot afford to pay us. Not enough pre-paid legal service plans the average guy can afford either.

  8. Nanette Stevens says:

    I absolutely love this discussion on this subject. Involved in a divorce and forced to represent myself due to lack of funds and not qualifying for free legal help, this is NOT where or what I want to be, that is…representing myself.
    But, the fact remains, I am in this position. And, having spent a multitude of hours trying to navigate the process, I can tell you that there needs to be a better exhaustive handbook in each jurisdiction written in layman’s terms to assist self-represented parties.
    May I add that it is extremely frustrating when the opposition’s attorney won’t even communicate with pro se individuals (as is the case in my situation) It looks to others like they are “milking” funds and gives the bar a bad rep.
    PS. TRUMP WON, Thomas F. McDow. So the chances are better than perhaps expected.
    PPS. I love the poem, but it really is a sad situation.

    • I haven’t followed this thread for awhile. By far the best option is an experienced lawyer who cares about you and your family. Second is a product I have been talking about, but not getting much reaction from colleagues or the WV State Bar. It involves unbundling of legal services. For those who say it undercuts our profession, @ 60% of the people who try this option decide they really cannot afford the risk of being their own lawyer. 40+ years and 3000+ cases has taught me things that I can impart in 2-3 hours to a serious minded client: http://hunterlawfirm.net/when-you-cant-or-wont-hire-a-lawyer-a-possible-option/

      • Nanette Stevens says:

        I agree! Unbundled would be a great help to people like me. I tried to get lawyers to assist me with specific parts of the process and they wouldn’t consider it.

        Thy kept telling me I needed a lawyer….as though I didn’t want one. It seems they really do not understand the financial situation exists where people can’t afford them.

        Please keep working toward unbundling.

        • I am well aware of this conundrum. That’s why I called it “When you absolutely cannot or will not hire a lawyer (for your divorce)”. I play that part “legit”, giving the very best I can to the person who simply won’t be hiring a lawyer. I think it is good stuff. As I said, it is surprising how often a way can be figured to have me become their lawyer. But, unbundling is a way a lawyer can make a few bucks, educate, ghostwrite, and NOT end up with a $5000 Albatross around his neck.

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Recent Comments

These are very helpful comments. I am starting a similar newsletter in WV for my clients and potential clients. Getting the clien...

John B on 03/02/2017
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I am well aware of this conundrum. That's why I called it "When you absolutely cannot or will not hire a lawyer (for your divorce)...

J Burton Hunter III on 12/28/2016
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I agree! Unbundled would be a great help to people like me. I tried to get lawyers to assist me with specific parts of the process...

Nanette Stevens on 12/27/2016
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I haven't followed this thread for awhile. By far the best option is an experienced lawyer who cares about you and your family. Se...

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Nanette Stevens on 12/27/2016
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About The Authors

Thomas F. McDow's Profile Image
Thomas F. McDow is the author of Debating SC Family Law, a blog devoted to discussing family law and appellate court issues in South Carolina. Read More
Erin K. Urquhart's Profile Image
Education: Spartanburg Public SchoolsWinthrop University, B.A. 2003University of South Carolina, J.D. 2006 Admitted: All South Carolina courts and the United States District Court for South Carolina, November 13, 2006 Professional Activities: South C… Read More

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