Opposing the pro se appellant

I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case?

I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro se plaintiff-appellant in the Court of Appeal than the defense lawyer has in the trial court.

First, let’s look at how the article characterized suits brought by pro se plaintiffs: “Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim.” None of that is likely to get any better by the time the case reaches the Court of Appeal (except, perhaps, where the pro se plaintiff has successfully amended the complaint to state a cognizable cause of action). The appellant’s opening brief may likewise be frivolous and a conspiracy theorist’s dream, but on appeal, there is an extra tool to combat those characteristics: the standard of review, which can often render irrelevant whole swaths of argument devoted to contested versions of the facts.

The article goes on to note that suits brought by pro se plaintiffs can be lengthy and costly because such plaintiffs are usually unwilling to settle and the trial court gives the pro se plaintiff leeway in complying with the rules of court that the court would not grant to a represented litigant. I have not seen either of those factors affect an appeal much.

Settlement on appeal is not unheard of, but it is far less frequent than in trial court in any event (it is not even always discussed), so a particularly stubborn plaintiff is not likely to skew settlement statistics in appellate proceedings. In fact, a pro se plaintiff-appellant might even be more willing to settle on appeal (and for a nuisance value) than he was in the trial court if he can be made to realize that the reversal rate is less than 1-in-5.

I haven’t seen pro se appellants given extra leeway, either (though I am always sure to cite case authority stating that they should not be given any). While it is true the Court of Appeal will make sure that pro se appellants get a fair shake, that approach usually manifests itself not in granting leniency with rule compliance, but in giving the the pro se appellant a respectful hearing, even where it is obvious he is wasting the court’s time. There are usually so few procedural steps in an appeal that there are few occasions for the appellant to invoke leniency in any event. The closest I ever saw was a pro se appellant who moved for leave to file an opening brief of nearly 50,000 words — the length of a short novel, and more than three times the usual limit. She was denied relief.

I think one of the biggest challenges in opposing pro se appellants can be to decipher their arguments. Briefs I have seen from pro se appellants (not always in cases in which I represent the respondent) tend to be long-winded, repetitive, and convoluted. A respondent must spend a good deal of time untangling the opening brief to clarify the arguments being made before starting on the respondent’s brief. If a respondent forgoes that initial analysis, he risks drafting a respondent’s brief that is likewise wordy, repetitive, and convoluted — at least in its first draft.

I can’t quantify this next point or offer any specific evidence for it (other than the anecdotal evidence in the article of pro se plaintiffs’ general unwillingness to settle), but I believe that pro se appellants are far more likely than represented appellants to appeal for reasons so personal and important to them that they are blinded to the realities of an appeal. Thus, I think they are more likely to pursue frivolous appeals, make arguments that don’t take into account the standard of review (even if they are familiar with the concept of a standard of review), and even appeal in situations where success could make them worse off.

All that said, one should resist the temptation to think that all pro se appellants are doomed to failure. Sometimes, they win, even against big companies with top-notch representation.