Pro Se Litigation Strategy II
Source: Yahoo Group, Legal_Self_Representation
We will start with the opposing lawyer: his most obvious motivation is to maximize his billings in which we truly wish him every success. If he represents a corporation and that corporation has been a client of that Law Firm for a period of time and is a significant source of revenue, his far greater priority would be not to lose that client. Losing to a Pro Se amateur would most likely mean losing that big client.
This means that when faced with well prepared Pro Se litigant who has a good case they may well try to feed the Client some legal mumbo-jumbo garbage to talk the Client into settling the lawsuit early on. Initially though, they usually come very cocky and accordingly very unprepared. When they are faced with sharp, and well prepared Pro Se litigant it may become quite entertaining. Some of them never learn and based on their pre-conceived notions continue to underestimate the Pro Se litigant allowing themselves liberties against the Rules of Procedure, lying in their filings etc.
That may put you into position to file a Motion for Sanctions wherein you'd usually ask for a fine and disallowance of use of his supporting evidence; all of it or partial depending on circumstances also this makes them a likely candidate for Complaint to Disciplinary Board(usually it's incorporated into the Appellate Court). If Motion for Sanctions is granted and use of evidence is denied - they cannot support their case and you can finish them off now thru a Motion for Summary Judgement.
If you are planning to file a disciplinary complaint, it makes sense of course to first let them know that you may be FORCED to do that (obviously you are NEVER threatening - unfortunately the circumstances/their actions compel/force you to consider doing this), but suggesting that they try a more constructive way to resolve this dispute, as a settlement of the lawsuit would remove any need for you to pursue a Complaint. As far as lying in their filings is concerned; "as this was filed by and thru their attorney who is an Officer of the Court and knew or should have known that such and such claims are false; thus this amounts to Fraud upon the Court". Fraud upon the Court is when the operation of the Court itself or its Member/Officer is corrupted and makes all rders/judgements by the court in that matter null and void.
Mere perjury by a witness is not Fraud upon the Court unless such perjury was suborned/specifically requested by their lawyer who is considered an Officer of the Court. (By the way Fraud by either side in the performance of a Contract makes that Contract void - same logic.) If it is a State or Federal Lawyer they are not normally expected to lose by their superiors - period. Their salaries are far less then what a good lawyer in private practice may get - that means they are not as good or else they would be in private practice. It appears that their offices' funding and staffing levels are contingent on the litigation workload, in fact I'm sure they sometimes bill other governmental agencies for whom they work.
That means their behavior is sometimes eerily resembling that of a private lawyer trying to maximize his billings, but they are not concerned about losing their client. Losing their jobs is a different story. Since most of them evidently are mediocre lawyers who are nonetheless not expected to lose they need to create at least the appearance of success by whatever means. In my opinion, one of these means is the incredible pervasive lying even to other governmental agencies. Another feature, in my opinion, is no concern for cost of litigation until you remind them of the existence of the Office of the Inspector General which among other things investigates reports of wasteful spending by governmental agencies. So if the litigation was about $25000 and they incurred legal costs approaching or exceeding that amount their position becomes very questionnable.
Offices of the Inspector General may be department specific for State or Federal Departments such as US Dept. of Justice or overall for all of the State of Federal Govt. They may be findable on the Net (the Federal ones are) Also you can file a Complaint with the Office of Professional Responsibility of the US Department of Justice IF your complaint is about the alleged actions of a Federal Lawyer, although it would be better to ask your friendly State/Local Elected Official to file such a complaint on your behalf - they routinely do that.
Now, the Judge - their biggest concern is to move the cases thru the docket thru whatever means. If you start expanding the case by means of filing appeals - you are not endearing yourself to the judge who will have to now write thorough and lengthy opinions for the superior court. The superior court is not going to like the extra work generated from a case handled by a particular judge and would expect him to resolve it. A judge does not want to antagonize the superior court on which he likely hopes to sit one day.
Antagonizing that court won't help it, but will increase the chances of reversal on appeal for decisions by that lower court judge. So the judge has the incentive to apply pressure to have the case settled: he has no leverage versus a Pro Se litigant, but when it comes to a lawyer who will be facing that judge again and again in the future it's a different story...
If your opposing party is the State Agency/Employee in State Court or Federal Agency/Employee in Federal Court you can expect the Court to basically side with the opposing party to the point of a judge arguing the case for that opposing governmental party in his opinions accompanying Orders/Rulings (but not if you sue State Agency/employee in Federal Court or vice versa) [Federal Agencies/Employees often have immunity against State lawsuits/prosecutions but only when performance of their Federal duties forced them to violate the State Law.
Example: when Federal postal truck drivers tried to claim immunity against local tickets that did not fly - they did not have to violate State traffic laws in performance of their duties]. But that too has some limits - few judges see themselves as merely rubber stamps for the State or Federal Government. The Opposing Party (or Adverse Party)- their situation becomes more difficult once you file Appeal(s) - the higher the Court the fewer lawyers meet the requirements for admission to it and the harder it is for the Opposing Party to even find a lawyer to do the Appellate work and the more they will likely have to pay such lawyer.
Independently of the Appeal you may file a "Motion to Reconsider" with the lower Court based on new evidence or misrepresentation or fraud upon the Court by the adverse party (see Rules of Procedure usually no later than a year after original verdict/order) and should that Motion be denied - you can file another Appeal thereby visiting still more feelings of "joy" on the adverse party. Proceeding in Forma Pauperis: if you are unemployed of otherwise think you might qualify you may Petition the Court to Proceed in Forma Pauperis - the Clerks usually have forms for it.
My impression though is that you may get some cut rate justice for the poor if you do that, while it will allow you to save on the filing fee and a number of copies. I believe the best use for it is when you face a deadline to file (statute of limitations or 30 days to file appeal, but not sure that you will actually have to proceed (settlement discussions underway) and thus see no reason to pay a filing fee when filing the initial Notice of Appeal for example. You probably are solid middle class, but the well-paid Judge may often see things differently and actually grant that petition.
Once you are thus officially categorized as a pauper, if you are a Defendant you can for instance write to the Plaintiff(perhaps bypassing their lawyer) and express puzzlement as to why their lawyer continues to press on with a lawsuit against a pauper while billing them for the all the costs he incurs...I'm sure if later on you change your mind and insist on leaving the Forma Pauperis status paying the filing fee etc the Court will let you.
A bit more on services available from the Courts: higher Appellate Courts often have Case Managers to guide you thru procedural matters and also Staff Attorneys for you to consult with mostly about Procedural matters/issues. What Motion can you file in such and such circumstances, would the Court allow supplemental record to be filed at this stage etc. In case of a Pro Se litigant bringing a Civil Rights Lawsuit (violation of constitutional rights) the Staff Attorneys for Federal Courts are required to help at no charge. Also the Courts often offer mediation services thru mediation program. If your opposing party's lawyer is not responding to offer of mediation the issue can be made (with his client) as to whether he is interested in finding a solution while sparing his client unnecesary expense.
DISCLAIMER:The author is not an attorney and is not rendering legal ,financial, or other professional services. The information contained on this web site is the author opinion based on his personal experience. If you need legal advice, consult a competent attorney.