Are you the kind of pro se litigant who’s lost in the courthouse wilderness? Or did you come to conquer it?
This is Not a Test or Quiz
Before we start, let’s get something out of the way. This is not one of those tests where your result is something you adore, like a labrador retriever, a daisy, or a BMW.
In fact, this isn’t a test at all. It’s a way for us as self-represented litigants to analyze and understand our capabilities, our readiness to represent ourselves in court.
It isn’t scientific, but understanding your type allows you to assess the current strengths and weaknesses of your approach to litigation, and do something about it if need be.
So, what kind of pro se litigant are you now? And what kind of pro se litigant would you like to be?
Our analysis is not based on personality types but levels of confidence, knowledge, skill, experience, and emotion. Change goes in one direction: up.
Let’s take a look at the different types of pro se litigants — the Appeaser, Aggressor, Magician, Gangster and Conqueror.
The Five Pro Se Litigant Types
The Appeaser is defined by fear, confusion, and lack of confidence.
They are reluctant litigants. Appeasers are usually defendants who only appear in court because they fear what might happen if they don’t.
They don’t know how to begin to defend themselves and will often seek help from judges, clerks, or people who don’t have their best interests in mind, like the lawyer for the other side.
Appeasers are the most likely of all pro se litigants to be passive in court. They will often apologize for things they shouldn’t in order to appease.
Many self-represented litigants start out as Appeasers, and it’s okay to start that way. What’s important is the willingness to learn and move up.
The Aggressor is driven by anger and false bravado. There may also be a strong distrust of the legal system, expressed as a disdain for lawyers. So it’s not likely they’ll ask for help from a lawyer on the other side.
The Aggressor’s desire to fight back and win is visceral, but they’re not sure how to go about it. They’re more confident than the Appeaser, yet they lack knowledge, experience, skills or persuasiveness.
They’re assertive and have a legal position they’re willing to advocate. They take a trial and error approach to litigation that, like other trial and error situations, is replete with error.
They manage to win sometimes just by staying in the case and learning as they go.
Magicians know a little more about the law than Aggressors and can be very persuasive. They know the issues on which the judge needs to be persuaded, but not enough law to argue those issues properly.
They can read cases but often don’t know how to convince a judge on a legal issue.
Magicians are less emotional than Appeasers and Aggressors, so they rarely harm their cases with hasty mistakes. They rely more on commonsense arguments than legal authorities and are often surprised when they win using common sense. It’s like magic to them.
With a little effort, a Magician can easily move up.
The Gangster displays a brute force kind of approach to litigation. Like Aggressors, Gangsters are – well – aggressive, but with a lot less emotion.
Unlike the Appeaser, they’re brimming with confidence. They have a legal position and they’re able to argue it aggressively. They can write and craft a good argument and do legal research to support it.
They’re also adept at civil procedure and may have prior litigation experience. But unlike the Magician, they don’t know how to persuade. They believe they can win with brute force, and they often do. In fact, they win more often than the Magician.
With just a little more work, they can master the courtroom.
The Conqueror, our best of breed, has a strong legal position and can articulate it well.
Conquerors can write and craft a legal argument. They conduct thorough legal research. They argue aggressively in court and recognize both the judge’s discretion and the need to persuade.
When necessary, they argue not just fact and law but persuasive public policy. (“Judge, if you hear this case with an appeal pending, you will have spat in the face of the appellate court!”)
Conquerors have high levels of confidence, knowledge, skill and courtroom experience. They have low levels of anger, fear and other harmful emotions.
Even when they’re given a raw deal — judicial bias against pro se litigants is real — they take it on the shoulder and live to fight another day.
The Five Pro Se Litigants In Action
To help understand the differences between the five types of self-represented litigants, let’s examine them in context using three scenarios.
A pro se litigant has sent discovery requests, but the other side has not answered within the allotted time. Here’s what each type is most likely to do under the circumstances:
- Appeaser – Call the clerk’s office for instructions and advice on what to do next.
- Aggressor – Seek sanctions for failure to respond to discovery.
- Magician – Write a letter to the judge complaining of the failure to respond to discovery
- Gangster – Write a motion to compel the other side to respond to discovery.
- Conqueror – Remind the other side of missed deadline for responding to discovery.
A good faith effort to resolve the issue is often required before moving to compel discovery, so what the Conqueror does by reaching out to the opposite side is ideal. In some states, the Gangster’s motion to compel may also be acceptable for a pro se litigant.
Success on this issue fades as we look further down the list of pro se types.
The Magician’s letter – unlikely. The Aggressor’s motion for sanctions – highly unlikely. Clerks can’t and won’t offer legal advice, so the Appeaser’s telephone call would be a waste of a dime.
A self-represented litigant is in court for a hearing, but the court reporter they hired is not present. Here’s what each type is most likely to do:
- Appeaser – Ask the judge, the opposing attorney or court staff for instructions.
- Aggressor – Leave the hearing, or stay and consider yourself doomed because a hearing without a court reporter can be biased.
- Magician – Proceed with the hearing without a court reporter.
- Gangster – Demand that the hearing be rescheduled for a time when a court reporter is available.
- Conqueror – Ask the court (judge) for a few minutes to locate any court reporter who can attend the hearing.
Again, the Conqueror’s respectful request to wait for a reporter is ideal. The Gangster’s request to postpone the hearing is also a good move, but the judge has discretion in these situations. He or she may not want to wait or reschedule.
Notably, both the Gangster and the Conqueror are loathe to have a matter heard without a court reporter. They recognize the need to have all hearings recorded. The other three pro se litigant types lack the knowledge or skill to stop the proceeding.
A self-represented litigant is asked for the most useful information one can have about a judge. Here’s how each type is most likely to respond:
- Appeaser – The judge is wise and helpful.
- Aggressor – The judge may be biased against non-lawyers.
- Magician – The judge will listen to reason.
- Gangster – The judge is as fallible as any other human being.
- Conqueror – The judge has some discretion but is not the final arbiter.
Only the Conqueror properly understands the role of a judge, a technician of sorts whose decisions can be appealed.
The Gangster sees the judge as being human and fallible and therefore beatable. He or she might understand the judge’s role but believes the judge’s fallibility is more important.
The Magician believes the judge will listen to reason, hence their reliance on commonsense arguments.
The Aggressor, in his or her bravado, is inclined to see the judge as biased. This belief might negatively affect his decision-making.
Finally, the Appeaser considers the judge to be untouchable, the benevolent One with the last word in whom their reliance is justified.
How to Become a Conqueror
Some of us take a certain delight in the sort of confrontation one faces in litigation. You know the kind. That friend who didn’t pay their mortgage but waits with impish anticipation to be served a summons so they can dish out some misery on the bank.
For the rest of us, a courtroom is not where we want to be.
Litigation is tough. It can seem overwhelming. But when we keep our cool and increase our knowledge of the process, we can become the kind of pro se litigant that wins.
If you’re an Appeaser now, aim for the confidence of an Aggressor. Learning enough to stay in the game will build your confidence.
If you’re an Aggressor, tone down the bravado and put the energy of your anger into legal research and arguments meant to persuade. With more knowledge and less emotion, you can become a Magician in no time.
If you’re a Magician, ditch the reliance on commonsense arguments. Instead, learn how to craft a cogent argument supported by legal authorities. But keep your ability to persuade because you’ll need it when you become a Gangster.
If you’re a Gangster, you’re almost there. You already have more knowledge, experience, skills, and confidence than the lesser types. Just realize that you can’t always win with brute force. Add persuasion to your skill set, and fill gaps in your knowledge of protocol and procedure. That way, you won’t need to rely on brute force. That’s how you become a Conqueror.
If you’re a Conqueror, bravo. And thank you for blazing a path that the rest of us can follow.
So what type of pro se litigant are you? Share in the comments below.