Tips from the Bench

A Lawyer's Approach to Pro Per Litigants

"I think the first duty of society is justice" - Alexander Hamilton

by Judge Leslie Roberts

Multnomah County Circuit Court

 

It may be my imagination, but it does seem to me that I have been seeing a greater number of people stray into court as "pro per" litigants.  Say what you may about people who represent themselves ("A fool for a client" springs to mind), many people on the civil side of things have no choice.  Our system is premised on the contest of balanced forces of advocacy tried to a neutral tribunal, with justice the product of a fair contest on the substantive dispute. Court procedures and rules of evidence are intended to serve - not to defeat - fairness.  Yet a person representing himself or herself against a trained lawyer is at a grave disadvantage.

A judge doesn't want to compromise neutrality by coaching the lay litigant or by inventing new rules and procedural exceptions for the layman.  On the other hand, the judge is naturally repelled by the spectacle of an ignorant citizen being rolled by an eager opposing attorney taking advantage of superior knowledge of court processes.

An attorney has a role as an officer of the court, and is governed by ethical and professional standards, in the attorney's task of advancing the client's arguable legal rights. Therefore, an attorney should exercise a wise and fair restraint in pressing for advantage through mere procedural maneuvering to the detriment of a fair litigation of the merits of a lay person's position.

Clients may not understand this. Furthermore, some attorneys are so enamored with their skills and so focused on scoring the win that they seek to take advantage of a relatively defenseless opponent in any way possible. That is a neophyte's mistake.

My objective is not merely to remind readers of lofty obligations to justice, but (assuming that does not always persuade) also to point out the gritty facts of life that punish lack of restraint in these situations.

Of course an attorney owes a high ethical duty of loyalty to the client, not to the opposing party.  However, it is also true that an officer of the court is expected to conform to court rules, including rules of evidence - even if, through ignorance alone, the opposing party is unlikely to make a proper objection. And see, Oregon Rules of Professional Conduct, Rule 3.4, (i.e., "a lawyer shall not... (c) knowingly disobey an obligation under the rules of a tribunal... (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence." The opponent may not realize how he has been taken advantage of by an attorney's sharp maneuvers, but you can be sure that the judge sees it - and makes a correspondingly negative judgment about you and your client.

From a purely practical point of view it is necessary for the attorney to exercise restraint - generosity, even - in dealing with a lay opponent to avoid a more dangerous foe. No attorney wants to litigate against the judge. If the attorney takes unfair procedural advantage in fighting a lopsided case against a feckless lay opponent, a decent judge feels powerfully drawn to correct the balance of power - to 'temper the wind to the shorn lamb,' as my tort professor used to say.  This is not to say that any judge will happily or eagerly embrace that role. Some may successfully resist.  But there is not a single judge who will thank the lawyer for placing the judge in such an unhappy position, regardless of how active the court becomes in seeking to avert a merely procedure-driven resolution of the case.     Furthermore, I guarantee that every judge will feel gratitude and admiration for a lawyer whose open and supportive actions towards an unrepresented party make it unnecessary for the judge to wrestle between the judge's own obligations of neutrality and the court's overarching duty to serve justice.