Lucky You. Your Opponent is Pro Se

You’ve just taken on a new case. As you read the initial pleadings or the demand letter, you almost wish you were reading a letter from a well-heeled law firm. Instead, you have found yourself face-to-face with a pro se opponent. While most pro se litigants are just trying to right a wrong they’ve endured and can’t afford a lawyer, many fail to grasp the basic elements of the civil process and often cannot even explain their position in a clear and concise manner so you can respond.

What makes the process more difficult is that courts will frequently afford the pro se party the benefit of every doubt which can feel like a disadvantage for your client. Courts have expounded: “particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); or “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

Remember, while there are countless more examples in the case law, the pro se party is not given carte blanche. Courts do not have limitless patience. Meritless claims will be weeded out. Take comfort in the words of the Second Circuit. Pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law,” Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir. 1983). “[W]e cannot read into pro se submissions claims that are not consistent with the pro se litigant’s allegations, . . . or arguments that the submissions themselves do not suggest. [W]e should not excuse frivolous or vexatious filings by pro se litigants. [P]ro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). If you must weather the appeals process with a pro se opponent, the Fifth Circuit has held that while they will “liberally construe the briefs of pro se appellants, . . . arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

So take a deep breath. Remember to simply do your job and fulfill your duty to your client. Eventually, the right result will prevail.


For other information about the burdens and exemptions of the pro se litigant, we invite you to review the links below to Legal Issues from Litigation Pathfinder.