Patricia Gillette, Orrick, Herrington & Sutcliffe partner (Hillary Jones-Mixon / The Recorder)
SAN FRANCISCO — It’s no secret that certain plaintiffs lawyers have a special ability to make defendants sweat.
But even more troubling than seeing a top-tier attorney on a complaint can be seeing two anxiety-producing words: pro se.
Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim. Yet companies may spend months, even years, battling them. And despite the asymmetrical nature of such litigation, companies often opt to pay large law firm rates for representation.
The fundamental goal for a company facing pro se litigation is the same in any suit: make the problem go away quickly and cheaply. But settlement—the litigator’s go-to tool—is usually off the table.
“You can probably get the case to go away for a settlement amount that would be less than your cost of defense,” said Morrison & Foerster partner Gregory Dresser. “But the problem, of course, created with a lot of pro se litigants, is it only encourages them.”
It’s common for pro se litigants to miss filing deadlines, submit documents incorrectly, or make convoluted claims that force the other side to decode their arguments, according to interviews with a dozen attorneys with experience in such cases. It can also be more difficult to negotiate or reach compromises, even on small matters, with an adversary who has no legal background. Plus, judges tend to extend more leeway to litigants without counsel, which makes for long, drawn-out litigation.
“Those kinds of cases can just cost you a lot of money,” said Orrick, Herrington & Sutcliffe partner Patricia Gillette. “So you’ve got to be careful about how you handle them.”
So far this year in Bay Area courts, pro se plaintiffs have sued such Silicon Valley companies as Google Inc., Facebook Inc., Apple Inc. and Hewlett-Packard Co. In response, Google appointed Wilson Sonsini Goodrich & Rosati, Facebook turned to Perkins Coie, Apple brought on Littler Mendelson and HP tapped Reed Smith.
Cases involving a pro se party make up about a third of all civil litigation filed in the U.S. District Court for the Northern District of California, according to court personnel. Most pro se cases are filed by prisoners targeting criminal justice institutions or by individuals with complaints against government agencies.
But that’s not the whole picture. So far this year, about 20 percent of pro se litigants who sought legal advice from the Northern District’s Legal Help Center were involved in employment claims, according to the center’s supervising attorney, Manjari Chawla. “A very large part of that is private employers,” she said.
Massive Internet companies such as Google and Facebook are prime targets “because they’re big and they have such broad reach into American society,” according to Eric Goldman, codirector of Santa Clara Law’s High Tech Law Institute.
Facebook, for instance, had 150 million daily users worldwide in March, a 115 percent increase from 2011, according to its U.S. Securities and Exchange Commission filing.
Earlier this year, Facebook was hit with a pro se suit from a federal inmate accusing the social media site of violating his First, Fifth, Sixth and Fourteenth Amendment rights by shutting down his account without cause. The case was dismissed this month so the plaintiff could proceed with an identical suit in Pennsylvania.
Goldman, who monitors federal suits filed against Internet companies, said claims over account terminations are some of the most common.
He’s also noticed a large number of “right to be forgotten” suits from pro se plaintiffs trying to force websites to take down content they object to or feel puts them in a bad light. Those claims almost always fail under the Communications Decency Act, which holds websites are not liable for third-party content. But the suits can still be a burden.
“They’re a drain on the system,” Goldman said. “Both on the court system and on the defendants.”
Last month, after more than three years of litigation, the U.S. Court of Appeals for the District of Columbia rejected a “takedown” suit against Facebook advanced by an atypical pro se plaintiff.
Judicial Watch founder Larry Klayman, a practicing attorney and conservative government watchdog, sued in 2011 over a Facebook page titled “Third Palestinian Intifada,” which called on Muslims to kill Jews. Klayman and an Israeli official requested the page be removed. It was, but not soon enough, argued Klayman, who asked for an injunction to prevent Facebook from allowing such pages on its site as well as more than $1 billion in damages.
Even claims litigated with less legal prowess can present defense challenges.
Jessica Pliner, an associate with Phillips, Spallas & Angstadt in San Francisco, said she has squared off against pro se litigants who “have announced that they don’t believe in discovery, and therefore will not respond to discovery.” In another case, she said, the plaintiff “filed motions on a weekly basis over anything and everything. They were never granted, but we still incurred the cost.”
In 2013, a limo and taxi driver who briefly picked up customers using Uber Technologies Inc.’s ride-share app filed a suit in San Francisco Superior Court accusing the company of discrimination. He claimed an Uber manager who appeared to be “a Jew” with a “hatred toward Iraqis or Shiite Muslims” fired him because he is an Iraqi native.
The plaintiff’s litigation strategy included an emoticon-filled letter addressed to President Barack Obama, in which he called defendants “these Uber guys” and accused them of tax evasion and running a Ponzi scheme. He also attempted to disqualify several judges from hearing his case, apparently on the basis of their race or religion, according to a court order denying his request.
His complaint was called unclear by the court, which ruled the pro se plaintiff failed to state a legal claim. Nevertheless, it took Uber’s attorneys at Littler Mendelson a year and a half to crush the suit. The court entered its final judgment earlier this month.
Cases such as Uber’s are often drawn out because judges give pro se plaintiffs breaks they wouldn’t give a licensed attorney, many on the defense side say. “Courts, in my experience, tend to bend over backward to try and make sure that the pro se party gets a fair shot,” said Jones Day partner Jason McDonell.
In an employment case filed against Verizon Wireless in the Eastern District of California last year, U.S. Magistrate Judge Kendall Newman allowed the pro se plaintiff to submit five amended complaints before finally dismissing the case in May.
Verizon was represented by Davis Wright Tremaine partner Judith Droz Keyes, based in San Francisco.
Newman called one of the complaints “somewhat confusing and scattered with facts that are not necessarily in a chronological order,” and ruled it failed to state a claim under the Americans with Disabilities Act.
The plaintiff also broke court rules, submitting a second amended complaint without authorization. She was chastised, but then went on to submit an unauthorized fourth complaint, “which the court, in light of plaintiff’s pro se status, liberally construes as an opposition to Verizon Wireless’s motion to dismiss,” Newman wrote.
Judge Peter Kirwan, in the Santa Clara County Superior Court, said a judge cannot give more leniency to a pro se plaintiff.
“I think we as judges make sure that they have their day in court and feel that they’re treated fairly,” he said, “but we also have to be very careful and circumspect about treating everyone the same.”
Still, Kirwan said he understands the frustration defense attorneys feel when up against a pro se litigant.
“It certainly can complicate the process when they don’t understand the rules,” he said.
Defense attorneys often meet pro se suits with a specially tailored legal strategy.
It’s important to be clear with the pro se plaintiff about deadlines, and remind the plaintiff when deadlines are approaching, said Jones Day partner Caroline Mitchell. She keeps a record of that communication so she can show the court she’s gone out of her way and the pro se plaintiff still hasn’t complied with court rules.
Gillette said she likes to approach the pro se litigant and talk through the case.
“In my opinion, you want to get the case into a position where you can bring in some type of third party, either a mediator or a settlement judge,” she said.
Individuals fighting on their own behalf often get emotionally wrapped up in a case, which leads to unrealistic expectations about how strong their arguments are and how much money they stand to gain. A third party can provide some perspective.
The danger for defense attorneys in these cases is looking like a bully in the court’s eyes, Gillette said. It’s not the place for scorched-earth litigation.
District Judge Edward Chen of the Northern District said defense attorneys in his courtroom are generally courteous and fair to pro se plaintiffs. But the defense could stand to improve its communication with the opposition in those cases.
“Sometimes there is less of a willingness to meet and confer,” Chen said. “People are more comfortable dealing with lawyers on the other side.”
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