One of the unexpected areas for new attorneys, or attorneys that are venturing into Family Law is the fact that a substantial portion of litigants are self-represented. While the state itself does not keep (or release) statistics of the number of pro per litigants in family court, most practitioners and Judges in the southern California region believe that the number is in excess of fifty percent. Unlike other areas of litigation, this should not be surprising, due to the personal issues at stake in a Family Law proceeding, the high cost of litigation in general, and the fact that family law actions can take years to proceed to judgment – and then additional years in various post-judgment motions. While proceeding pro per offers advantages to individuals who cannot afford an attorney, or do not want to play by the rules that their prior attorneys have instructed them about, it provides challenges to attorneys who are opposing such litigation in two main areas: a) law and procedure; and for a lack of a better term b) common courtesy.
Out of the two, the latter is the easier category at times to deal with. While lawyers recognize that the profession is itself adversarial, most interactions between counsel are usually insulated with a veneer of civility and a common legal background. Interactions between lawyers and pro per’s however, start at a disadvantage as there is no common legal background, and are placed at a further negative by the Family Law process being inherently adversarial in contested cases. In such situations, many pro per litigants are unwilling to accept descriptions of black letter law from opposing counsel – or the Judge, much less be civil over discussions that involve custody or money. With such high-tension stakes, a good piece of advice is to attempt to be as polite as possible, and not to respond to personal attacks about your conduct either in person or in pleadings unless absolutely necessary.
It is also worth noting that, like fellow attorneys, a spectrum exists of pro per litigants, and that not all self-represented litigants act poorly. On many occasions, a good working relationship between an attorney and a pro per can exist to resolve issues either during or after litigation in Court. In addition to being civil to parties that are not attorneys, another good rule of thumb is to inquire as to how much the party knows or understands about the law on the contested issue so as to avoid the appearance of being condescending or “having an attitude”. Unfortunately, in some cases, no matter the amount of courtesy will be able to bridge a gap, as some parties view the attorney as nothing more than an extension of a hated enemy. At such times, one will have to make the difficult choice of bringing verbally abusive conduct to the Court’s attention, and in certain extreme cases, seeking a Civil Harassment Restraining Order. The last remedy does come with certain risks that may impede a lawyer’s ability to represent a client, so in such cases, the attorney should consult with their client before proceeding.
While communication issues are common in dealing with pro per’s, a larger issue is application of procedural rules to parties that either do not understand pleading deadlines, or do not care. While Motions to Strike are authorized by the code, in many situations, Courts will not grant such requests based on a perceived prejudicial advantage to the attorney seeking to enforce application of said rules. Similarly, in terms of seeking a default judgment, Courts will often grant pro per litigants wide latitude to responding to the petition being filed or filing necessary documents such as Preliminary Declarations of Disclosure. Rather than becoming frustrated with a Court, or the opposing party over such issues, a practitioner should keep a cool head and build a record.
An excellent place to start when such issues arise is to inform the self -represented party that under the law, they are held to the same standard as an attorney. Similarly, with respect to the Court, a practitioner must build a record for the Court that demonstrates that a party continually refuses to comply with basic notice requirements or refuses to comply with basic pleading requirements. The end result of making this type of record is to obtain either Family Code 271 sanctions at a future date, or to obtain a determination that a party is a “vexatious litigant” under CCP 391. While it may be difficult to walk the line with clients who can become frustrated with the “unfairness” of application of rules to pro pers, one may also ensure them that in the end, any Court will enforce the rule of law to ensure equal and equitable treatment.
With the dissolution rate continuing to hover at around fifty percent, and with the cost of litigation and emotional issues of dissolution never departing, the issue of pro per litigants is one that will also continue to affect the practice going forward, and will be always something that practitioners need to consider, and be prepared for as their family law practice continues and expands.