By Marshall H. Tanick 
Mansfield, Tanick and Cohen, P.A., Minneapolis, Minn.

Are you thinking of representing yourself or your business in litigation without an attorney? Or, have you been involved in a lawsuit in which the other side was self-represented?

These are both examples of pro se representation, a practice in which individuals represent themselves in pending legal proceedings before administrative bodies or courts. Pro se representation is Constitutionally protected but frowned upon in Minnesota and elsewhere.

There are valid grounds for pro se representation in certain circumstances. But there are other reasons why the procedure is not looked upon favorably and may, in fact, place individuals in legal peril.

Roots Reviewed

The concept and legal terminology is of ancient origin. The term pro se is rooted in Latin, meaning "for oneself" or "on behalf of oneself."

The venerable tradition of self-representation in legal matters is also embedded in the U.S. Constitution. Although pro se is not expressly covered in the Constitution, courts have held that an individual is legally entitled to self-representation.

There are a number of reasons why individuals elect to represent themselves pro se. They include strong personal views about a particular matter, refusal or inability to work with legal counsel, and inability to find legal counsel who are willing to work with an individual, often because of the position taken by the pro se party in the litigation.

But the driving force for much pro se litigation is economics. The high cost of legal representation often leads individuals to represent themselves. This trend has been branching out in recent years as legal fees and expenses continue to mount. Courts may even make exceptions to this limitation on occasion.

There are a number of restrictions courts impose on pro se litigation. They include instances in which individuals are unduly disruptive, clearly lacking in knowledge, or have engaged in improper or abusive practices. There is a growing tendency, although occasionally controversial, for courts to proscribe litigation by individuals who repeatedly engage in abusive tactics while litigating pro se.

In one recent case arising in Hennepin County, the Minnesota Supreme Court addressed the issue of pro se litigation. In In Re The Matter of Barbara R. Burns, 542 N.W.2d 389 (Minn. 1996), the Court held that the Hennepin County District Court was justified in imposing a one-year restriction on a pro se litigant's communications with the court due to a series of "disruptive proceedings" brought by that party. The lone litigant apparently engaged in ex parte communications (contact directly with the court without the other side's attorney's presence or knowledge), which was improper.

The Court in the Burns case noted that its decision was "one of a growing number of cases throughout the country in which courts have imposed limitations on either communication with the court or, in some cases, with filing of actions." The decision does not seriously impair the rights of pro se parties to continue representing themselves, provided that they abide by applicable rules and do not create disruption. The ruling does, however, give additional power to courts to limit abusive conduct by pro se litigants.

The practice of self-representation or pro se litigation can be either a boon or a bane to litigants.

In Conciliation Court procedures, which usually involve relatively small amounts of money, courts encourage and sometimes require pro se litigation in order to simplify proceedings, save costs, and make the process more user-friendly. In more sophisticated matters, courts are reluctant to unleash individuals into the pro se process.

The Court held that judges have inherent power "to maintain order and decorum," which authorizes imposition of restraints on pro se litigants who abuse the judicial process. Courts are particularly wary of pro se litigants for fear that inexperience or unfamiliarity with legal processes might lead them to forfeit or sacrifice important legal rights. Notwithstanding this aversion, the U.S. Supreme Court has held in Godinez v. Moran, 509 U.S. 389 (1993) that individuals are Constitutionally entitled to represent themselves, provided that they are mentally able to do so.

Limitations Listed

There are, however, a number of limitations that courts impose upon pro se litigation. In Minnesota, organizations such as corporations or other businesses cannot represent themselves, although Conciliation Court allows pro se representation with proper written authorization. Corporate entities are considered in the eyes of the law as a separate individual and generally need to be represented by legal counsel, rather than an individual or even the proprietor of the business. However, more obligations and obstacles on courts and litigants in connection with pro se litigation.

Adversaries also are wary of dealing with pro se litigants. Because they often are unfamiliar with legal procedures, pro se litigants can create confusion and frustration for other parties, which tend to drive up the time and cost involved in litigation.

"Dealing with pro se litigants can be very frustrating, time consuming, and costly because of the extra work that is usually involved in the process," said Daniel R. Kelly, attorney with the law firm of MANSFIELD & TANICK, P.A., who has successfully been involved in litigation against pro se litigants.

Mr. Kelly pointed to a recent case in Federal court in St. Paul involving complex labor law issues in which the claimant represented himself. Mr.Kelly, who represented the employer who was being sued, along with the National Labor Relations Board, felt that the pro se individual did a "reasonably good job" in the case, but that he made some legal and tactical blunders that Mr.Kelly properly took advantage of to help his client get the case promptly dismissed.

Prudent Practice

Some of these problems can be avoided by a mixture of pro se litigation coupled with professional advice. On occasion, the benefits of pro se litigation can be achieved while avoiding some of its detriments.

An individual can represent himself, but have informal advice or counsel furnished by a lawyer without the lawyer making a formal appearance on behalf of the litigant. By staying in the background or on the sidelines, the lawyer can offer guidance to a pro se party without the litigant incurring substantial legal expense.

Pro se litigation remains an important right for individuals, but, like other rights and privileges, it can be abused and misused.

Prudent practice generally dictates that, except in relatively minor matters, individuals should not engage in representing themselves. While pro se practice is of ancient origin, so too is the old saw: "Persons who represent themselves have fools for clients."

Pro se litigation poses a number of problems for both self-represented individuals and their adversaries.

Litigants who are proceeding on a pro se basis usually are held to the same legal standards as attorneys. This means that if they fail to follow court rules and regulations, they are subject to litigation sanctions, and the excuse that they are not legally trained may often fall on deaf ears. In one leading Minnesota case, State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988), the Court held that pro se litigants that failed to abide by Court requirements may have their lawsuits dismissed even though they may not be familiar with some of those requirements.

Pro se litigants are often viewed askance by judges and other adjudicators. Judges prefer to deal with lawyers, who are more accustomed to legal procedures, and they fear that they must often bend over backwards to assist pro se litigants, even though they are not legally obliged to do so.
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MANSFIELD, TANICK & COHEN, P.A.
Attorneys at Law
1560 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402-3383
Tel.(612)339-4295 Fax.(612)339-3161
http://www.mansfieldtanick.com/

Republished by Joseph P. McCaffery & Associates with permission of Marshall H. Tanick