The worst thing is that we don’t even know what an effective pro se litigant looks like. We don’t get to see regular people making good arguments in court, commanding the floor and the judge’s attention, or questioning witnesses at trial. Pro se litigants just don’t get that far very often. With few exceptions, we are simply not effective in court. Google “pro se litigant” and you’ll see lots of articles telling lawyers how best to defeat us, or instructing judges on ways to ensure a fair hearing when we come to court.
You’ll also see plenty of advice that helps you avoid wasting the court’s time, like that’s your biggest concern. What you won’t see are articles on becoming an effective pro se litigant. That’s a shame, because civil court dockets these days are filled with cases in which people are representing themselves. But you’d never know it because most of us are in the early stages of losing badly. It’s been a long hard slog, but I’ve become a very effective pro se litigant. As such, I feel obligated to help define what that means.
In no particular order, here’s a short list of attributes:
- An effective pro se litigant is proactive. Whether plaintiff or defendant, we don’t wait for or react to the other side’s next filing. We anticipate it.
- An effective pro se litigant is organized. Everything has its place where our case is concerned, whether its the filings, relevant case law, evidence or random notes.
- An effective pro se litigant is restrained. We rarely use “legalese” unless it’s required, and we never pretend to know the meaning of a legal term when we don’t.
- An effective pro se litigant is strategic. We may not always look the part, but we are executing a litigation strategy based on careful analysis of our case.
- An effective pro se litigant is knowledgeable. We know enough civil procedure to navigate the civil claims process without falling into an opposing lawyer’s trap.
- An effective pro se litigant is authoritative. We know the value of legal research, and we support our arguments with case law and other legal authorities.
- An effective pro se litigant is persuasive. We can craft solid legal arguments for our positions and deliver them both in writing and in person at a hearing.
While winning is never guaranteed, the effective pro se litigant is not intimidated by a lawsuit and can drag someone to court when injured. I’ve shared some of my courthouse success stories in this space before. Our work at Courtroom5 brings me into contact with enough winners to know I’m not alone. A common theme is that an effective pro se litigant loses a lot of cases before they start winning. I don’t think it has to be that way. I feel confident that regular people can learn to be effective at representing themselves in court. I believe strongly that people can leapfrog over the expected losses and get a fair day in court on the very first case. There is a recipe for success when one has the right ingredients. So how does one become an effective pro se litigant? Easy — by developing the attributes of an effective pro se litigant.
Let’s revisit them, this time ordered from straightforward to challenging:
- Be organized. Don’t get swamped with the mountain of paperwork created in a civil case. Arrange all the pieces of your case so you can deploy them at will.
- Be proactive. Stay on offense. Don’t let the other side run the case. Make them react to your filings. What are you waiting for?
- Be strategic. Identify and study the elements of all the claims and defenses in your case, and execute a strategy based on those elements.
- Be persuasive. Your filings and oral arguments will tell the judge whether to invest in hearing you out. Learn and practice the art of legal argument.
- Be authoritative. Don’t argue a legal position that isn’t supported by statutes, rules or appellate court decisions. Learn to do legal research.
- Be restrained. Know what you know, and know what you don’t know. Always be learning.
- Be knowledgeable. Understand the essentials of civil procedure and show your knowledge in the order or sequence of your filings.
In short, an effective pro se litigant can capably prosecute or defend against a civil claim.
Certainly it’s harder with F. Lee Bailey on the other side than when you’re facing another pro se litigant or the two lawyers in My Cousin Vinny.
But when an effective pro se litigant loses, it’s not because they didn’t have a lawyer. No, of course it’s not simple, or easy to do. It takes a lot of work. A helpful first step is to discover what kind of pro se litigant you are.
Next, take a spin through a pro se litigant’s scavenger hunt to understand the specific skills you’ll need to pick up. Then take a look at Courtroom5 to start applying those skills to your case and acquiring the 7 attributes of an effective pro se litigant. No one starts out at 100. We are all in various stages of preparation. But it can be done, and you don’t need a PhD to do it. You just need the willingness to read and write a lot, and you need a case worth fighting for.
Are you ready?