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As almost any employment lawyer will tell you, defending a case against a pro se plaintiff can easily rank among the most frustrating experiences there are. And sooner or later most management-side lawyers will face a pro se lawsuit. With an average of 269 new filings each year since 1996, employment discrimination cases comprise the second-largest group of pro se cases in federal district court in Manhattan, outnumbered only by prisoner civil rights suits. Right now, of the 1,112 employment discrimination cases pending in the district, 430 — or nearly 40 percent — are pro se suits, according to Lois Bloom, senior staff attorney at the Southern District Pro Se Office. “It is easier to litigate against a good lawyer than a pro se plaintiff or bad lawyer,” said Theodore O. Rogers Jr., head of Sullivan & Cromwell LLP’s Labor and Employment Law Group. The special challenges presented by the pro se plaintiff call for a litigation strategy that is markedly different from the usual lawyer versus lawyer scenario. “The first thing I do is check the judge’s history with pro se litigants,” said Ronald M. Green, head of the labor and employment practice group at Epstein, Becker & Green PC. “If the judge appears receptive to dispositive relief, I will litigate the case very aggressively early on,” he added. On the other hand, Gary D. Friedman, a partner at the New York office of Mayer Brown & Platt, noted that “it is often more difficult to prevail on a straightforward legal issue” where the plaintiff is pro se. “Judges seem more concerned about getting reversed” in such cases, he explained. FOLLOW DUE PROCESS CAREFULLY Lawyers are used to treating procedural rules flexibly for the sake of efficiency and convenience. With counsel on both sides, this practice does not generally create a problem, because everyone is on the same playing field. With a pro se litigant, however, circumstances are very different. Pro se litigants “have no reason to trust the system or their opponent,” said Kathryn Keneally, a partner at Owen & Davis PC. “They won’t understand if you try to take shortcuts,” she added. By the same token, it can help to explain the rules to the pro se litigant. “I bend over backward to make sure they understand,” said John Canoni, chair of Nixon Peabody LLP’s Labor and Employment Benefits Group. Although defense counsel should be careful to adhere strictly to the rules, expect the court to give the pro se plaintiff a lot of leeway in this regard, Rogers said. “The reality is if a pro se plaintiff misses a deadline here or there, the court is not going to throw out his case, said Michael Delikat, a partner at Orrick Herrington & Sutcliffe LLP. “The courts want to be sure that the pro se litigant understands he was treated fairly. If they just tossed out the complaint, they would create an enemy of the court system,” Rogers said. The extra time and effort in creating a satisfactory record will pay off in the end, Keneally said. “If the court takes action on an incomplete record, it allows the pro se litigant to come back with the argument that something wasn’t done,” she explained. “Judges have a lot of experience with pro se litigants,” Keneally said, “but they can’t do it sua sponte.” It is up to defense counsel to make the right motions and create a complete record. “You need to put the court in the position where the record shows that all the rules have been followed should the court grant the relief you are seeking,” she said. DOCUMENT EVERYTHING “All communications with a pro se plaintiff should be well documented and in plain English,” Delikat said, “because inevitably you are going to find yourself in front of the judge in which your opponent didn’t do what he was supposed to.” It also helps to counter charges that the plaintiff was snookered by defense counsel, he added. Friedman said that sometimes he even records conversations with certain pro se plaintiffs who are more suspicious and conspiracy-oriented. “Otherwise, you may find yourself in constant disputes over what happened in conversations,” he said. He advises the plaintiff in advance that he is taping the conversation. BE RESPECTFUL “As lawyers, we have a tendency to think of ourselves as samurai for our clients,” Green said. Shed the armor, he advised. “Typically, the plaintiff’s self-esteem has been badly hurt,” Green said, adding, “Try to be empathetic, even sympathetic. Don’t give them more reason to be angry.” He downplayed concerns that flattery would only bolster the plaintiff’s sense of the strength of the case. “An experienced lawyer can handle it,” he said. And lawyers should not forget that people who do not have lawyers still have every right to bring a suit. “Every person has a right to access to our courts, and I firmly believe that the legal profession should not stand as gatekeepers,” Keneally said. Moreover, the courts want lawyers to treat the pro se plaintiff with respect, Green said. If a judge thinks the defense counsel is taking advantage of a pro se litigant, the judge himself “may act as an advocate for her,” he added. If things get out of hand, however, “don’t hesitate to enlist the court’s assistance,” Delikat said, adding, “Judges are often willing to warn a plaintiff that he will be sanctioned” if he continues his abusive behavior. LOSE BATTLE, WIN WAR “It isn’t always necessary to win every point,” Green said, adding “Sometimes you win by losing.” He cited the recent case of Valentine v. Standard & Poor’s as an example. Although the plaintiff, a former analyst, argued beyond what Green normally considered appropriate, as defense counsel, he chose to let it go. By the end, among other less than cogent arguments, the plaintiff was accusing the defendant of conspiring with former President George Bush against him. The 2nd U.S. Circuit Court of Appeals affirmed the lower court’s dismissal of the case on summary judgment. By way of another example, Green described the case of a pro se plaintiff who argued to the court that his former employer had him under surveillance, with hidden cameras and professional eavesdroppers. The court ordered injunctive relief, which Green did not oppose. “Then we won the case” he said. SETTLE WISELY For several reasons, settling a case against a pro se litigant claiming employment discrimination can be extremely difficult. Wayne N. Outten, a plaintiff’s employment lawyer with Outten & Golden LLP and president of the New York chapter of the National Employment Lawyers Association, explained: “A pro se plaintiff generally has a heavy emotional investment in the case, and feels very strongly and passionately that she has been wronged.” However, she may not understand that the law may not provide a remedy for the perceived wrong, or that she may not be able to prove her case, or that the amount of damages she is seeking is unreasonable, Outten said. Without a lawyer, the pro se plaintiff is often too close to the case. “No one is filtering information or managing expectations,” Green said. One solution is to bring a third party into the negotiations, such as a judge, magistrate judge or mediator, “someone the plaintiff can trust,” Rogers said. Do not let your guard down just because the plaintiff agrees to a settlement. “Read the settlement into the record,” said Delikat, or get it “so ordered,” said Green. And do not use the usual Blumberg form, but draft the agreement in plain English, clearly reminding the plaintiff that she or he had the right to retain counsel and was advised to do so, Delikat added. “Clients tend to be less fearful with a pro se litigant,” Green said. “They want to know why you can’t knock this person without a lawyer right out of the box,” he added. On the contrary, it is often more expensive to defend against a pro se plaintiff. “The most mundane discovery matters can become a cause celebre” for the determined pro se litigant, said Friedman. “You get served with 400 interrogatories going back to the Boer War,” he added. And such cases can generate even more problems if not treated carefully, explained Delikat. “We frequently get cases that have degenerated into name-calling and fights” between the plaintiff and in-house counsel,” he said. Thus, clients who lack experience with pro se plaintiffs need to be told “not to underestimate the difficulty of these cases,” Delikat said. Conversely, those who have been down the pro se road before need no special warning. “My clients usually cringe when they get a pro se complaint,” said Friedman, adding, “They know it’s going to be more expensive to litigate.”

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