Where do pros se litigants most often fail? Is it because of ignorance of legal protocols? Is it because they use overly aggressive tactics that most lawyers wouldn't use? Is it because they failed to prove their case, when a competent lawyer might have succeeded?
This question was inspired by one of the the answers to another one.
Most pro se litigants fail in the court procedure area. There are many intricacies about what must be completed by when.
Determining jurisdiction can take a very long time, especially personal jurisdiction. These things set back cases repeatedly.
Additionally, many pro se litigants fail a 12(b)(6) motion. This means the other side files a motion saying that the opposing party failed to state a claim upon which relief can be granted. Typically, a pro se litigant fails to state with specificity each element of a claim and how the parties met each element.
If the litigant does not know how to remedy the situation, it will not succeed. Most judges in small claims overlook procedural deficiencies so long as they are not too burdensome on the opposing party.
If one is unsure how to proceed, contact an attorney.
Quoting from the House of Commons Library Briefing Paper Number 07113, 14 January 2016, Litigants in person: the rise of the self represented litigant in civil and family cases:
A study into the experiences and support needs of LIPs in private family law cases carried out for the MoJ in five courts, which included a detailed analysis of 151 cases, found (amongst other things) that: ...
- Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process.
- The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their or their children’s interests.
- Around half of those observed had one or more vulnerabilities, making it more difficult for them to represent themselves and in some cases making it impossible.
- LIPs may create problems for the courts by not appearing, by refusing to engage with proceedings, or (less frequently) by behaving violently or aggressively. Apparent resistance to court proceedings (and violence and aggression) may often be related to litigants’ vulnerabilities. ...
Quoting from the Litigants in Person section of the Equal Treatment Bench Book, November 2013:
- Most litigants in person are stressed and worried, operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant.
- They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may have a profound effect and long term consequences upon their life.
- They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.
- The disadvantages faced by litigants in person stem from their lack of knowledge of the law and court or tribunal procedure. For many their perception of the court or tribunal environment will be based on what they have seen on the television and in films. They tend to:
a. be unfamiliar with the language and specialist vocabulary of legal proceedings;
b. have little knowledge of the procedures involved and find it difficult to apply the rules even if they do read them;
c. lack objectivity and emotional distance from their case;
d. be unskilled in advocacy and unable to undertake cross-examination or test the evidence of an opponent;
e. be ill-informed about the presentation of evidence;
f. be unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong.
Litigants in person come from a variety of social and educational backgrounds. Some may have difficulty with reading, writing and spelling. ...
Litigants in person often believe that because they are aggrieved in some way they automatically have a good case. When explaining that there is no case, bear in mind that this will come as a great disappointment to a litigant who will have waited for their day in court for some time.
Many litigants in person believe that court or tribunal staff are there to give legal advice. Under the Courts Charter court staff can only give information on how a case may be pursued; they cannot give legal advice under any circumstances. This may have to be explained to a litigant in person.
Litigants in person may make basic errors in the preparation of civil cases in courts or tribunals by:
a. failing to choose the best cause of action or defence;
b. overlooking limitation periods;
c. not appreciating that they are witnesses in their own cases;
d. failing to file or serve their own witness statements in advance of trial (and not understanding that in consequence they may not be able to give evidence)
Litigants in person often do not understand pre‐hearing directions (in particular those imposing time deadlines and ‘unless orders’) or the effect of court or tribunal orders ...
Sometimes litigants in person believe that if the other side has failed to comply with such directions then that in itself is evidence in support of their own case, or the opponent should be prevented from defending or proceeding further. They often feel upset at what they regard as an over-tolerant attitude by the court or tribunal to delays by solicitors. ...
A common problem is lack of understanding about the use and application of documents and bundles. Experience shows that litigants in person:
a. tend not to make sufficient use of documentary or photographic evidence in their cases;
b. fail to appreciate the need for maps and plans of any location relevant to the case.
- The duty to disclose documents is frequently neglected by litigants in person.
a. Some will have little or no appreciation that they should adopt a ‘cards on the table’ approach. Consequently there can be delay, either because of the need to adjourn or because the judge or the other side requires time at the hearing to read recently disclosed documents. ...
Many litigants in person do not have access to office facilities and have difficulties in photocopying documents, preparing bundles and typing witness statements. They have little concept of the need for documents to be in chronological order and paginated. ...
All too often litigants in person do not bring relevant documents with them to the hearing. The court or tribunal is faced with the comment: ‘I can produce it – it is at home’, but it is then too late and an adjournment is likely to be expensive and will usually be refused.
Most litigants in person do not have access to legal textbooks or libraries where such textbooks are available and may not be able to download information from a legal website. ...
Sometimes litigants in person do not understand the role of case law and are confused by the fact that the judge or tribunal appears to be referring to someone else’s case. ...
Judges are often told: ‘All you have to do is to ring Mr X and he will confirm what I am saying.’ When it is explained that this is not possible, litigants in person may become aggrieved and fail to understand that it is for them to prove their case. ...
When there is an application to adjourn, bear in mind that litigants in person may genuinely not have realised just how important the attendance of such witnesses is. ...
- Difficulties often arise for litigants in person in getting to the court, being nervous and incoherent, coping with the jargon used and forms of address.
- Many litigants in person will not appreciate the real issues in the case. For example, a litigant might come to the court or tribunal believing that they are not liable under a contract because it is not in writing, or that they can win the case upon establishing that the defendant failed to take care when the real issue in the case is whether or not the defendant’s negligence caused the loss.
Litigants in person may not know how to compromise or even that they are allowed to speak to the other side with a view to trying to reach a compromise.
Often litigants in person phrase questions wrongly and some find it hard not to make a statement when they should be cross-examining.
Litigants in person frequently have difficulty in understanding that merely because there is a different version of events to their own, this does not necessarily mean that the other side is lying. Similarly, they may construe any suggestion from the other side that their own version is not true as an accusation of lying. Be ready to explain that this is not automatically so.
This article cites Justice Stevens in Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152 (2000) —
Our experience has taught us that “a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.”10
