Dealing with a pro se party raises a number of reasonable concerns:
- The pro se could misconstrue what I say
- The pro se may regard me as his or her lawyer
- The pro se could sue me for legal malpractice
Communicate in Writing Whenever Possible
When you communicate verbally, a pro se can misremember your words, misconstrue your meaning, or even deny the discussion occurred.
When you communicate in writing your words are documented. It becomes impossible to “misremember” or deny what you said. Yes, written communication can still be misconstrued, but there is less likelihood of this happening.
Use a 3-Way Disclaimer
- “I don’t represent you.”
- “I can’t give you legal advice.”
- “If you have questions, hire a lawyer.”
Every pro se communication should include this type of disclaimer. If the pro se party later argues you had a lawyer-client relationship or attempts to assert a legal malpractice claim on the grounds that you failed to protect her interests, you will be in a better position to defend yourself.
Be a Broken Record
The 3-way disclaimer must be used every time you communicate with a pro se. Does it become repetitive? Perhaps, but that doesn’t matter. Some pro se adversaries “get it” from the beginning; some “get it and forget it;” some never “get it.” This doesn’t mean the pro se is purposely trying to make your life more difficult. But it does underscore the value of redundancy.
Practice Tips Beyond Pro Se Communication
For more tips on how to work with pro se adversaries, peruse the following:
- A Judge’s Advice to Lawyers Facing Pro Se (Self-represented) Litigants – from the venerable Oregon Legal Research blog
- How to Handle a Pro Se Litigant – Law 360
- Learning to Live with Pro Se Opponents – ABA GPSolo
- Facing a Pro Se Opponent – The Compleat Lawyer
[All Rights Reserved 2015 Beverly Michaelis]