Serge Adam, Claims Professional and Panelist for the 2014 Professional Risk Symposium session “What Is Your Role in PLI Claims or Litigation?” discusses reservation of rights and frequency/severity of claims.
The bad news: your client is being sued for discrimination by a former employee. The good news: the former employee is representing himself, so you assume that his case must be so weak that he couldn’t find an attorney willing to take it on. Now the really bad news: you’ve already made your first mistake.
In the past two years, approximately 230 employment related lawsuits have been filed in Michigan state and federal courts by plaintiffs, who have opted to represent themselves, known alternately as pro se or in pro per plaintiffs. Defendants may expect pro se litigation to move more quickly than traditional litigation; however, the reality is the plaintiff may be given more time because he or she is unfamiliar with the process. Defendants may expect minimal defense costs, because having a pro se plaintiff means the litigation will be relatively simple. The reality may very well be that the defendant can expect higher than usual bills for motion practice, because plaintiff is reluctant to stipulate to simple procedural matters and because plaintiff will not know how to comply with the court rules. Defendants may expect an easy win or early dismissal, but the reality is that you may find yourself in front of a judge who wants to afford the plaintiff every opportunity of succeeding. Even if the defendant’s expectations turn out to be right, by understanding why the plaintiff has chosen to go it alone, and by being prepared to manage the unexpected, you can help your client understand what is really happening.
There may be no single explanation for the seemingly swelling number of pro se suits, but several factors could be contributing. As with any number of conditions, the economy may be a factor. In trying economic conditions, large numbers of people lose their jobs. As more people lose their jobs, more people file employment-related law suits. Even assuming that the proportion of represented to unrepresented plaintiff’s remains constant, the more law suits that are filed, the more pro se plaintiffs there will be. As Michigan continues to be troubled by extraordinarily high rates of unemployment, extraordinarily high numbers of employment-related lawsuits are being filed-both by represented plaintiffs and by pro se plaintiffs.
In this type of environment, plaintiffs’ attorneys are privileged to be, and yet at the same time forced to be, highly selective in choosing the cases they undertake. Obviously, an abundance of potential cases affords plaintiffs’ attorneys the privilege of being able to select the most compelling cases. At the same time, these attorneys face the same economic conditions as everyone else. Resources are tight, and they simply cannot afford to invest limited resources where the potential recovery may be limited. Many plaintiffs are simply not able to find an attorney who will take their case at all. Moreover, as a general rule, potential plaintiffs in employment related cases tend to be unemployed, and do not have the financial resources to hire an attorney on an hourly basis. These plaintiffs may struggle to find an attorney who will take their case on a contingency basis because of the economics of the case.
The unreasonable expectations of many plaintiffs may also contribute to the number of pro se plaintiffs, and make for more litigious cases because they do not recognize the realistic value of their cases. Sexy suits where angry juries award plaintiffs seven figure punitive judgments are largely a matter of fiction. They make good movies and the occasional sensational news item, but the typical employment case comes with capped and limited damages, which may be either entirely discretionary or subject to statutory liquidation formulas. More typical employment cases, where available damages are in the low five and even four figure range, generally do not qualify as newsworthy events. As a result, potential plaintiffs are only familiar with the rare high profile jackpot cases, and cannot understand why attorneys might not take their cases.
The American Bar Foundation’s, Contesting Workplace Discrimination in Court: Characteristics and Outcomes of Federal Employment Discrimination Litigation 1987-2003 paints a more realistic picture of the landscape-as well as what a pro se litigant can expect. The American Bar Foundation’s findings suggest that 54% of all employment cases filed in federal court will settle, 18% will be dismissed, 16% will result in summary judgment, and only 5% will ever go to trial (others will be withdrawn, remain unresolved, or come to some other alternative conclusion). Where the plaintiff decides to go it alone, the plaintiff can still expect only a 5% likelihood of going to trial for a chance at the jackpot. On the other hand, 40% of employment cases filed by pro se plaintiffs will be dismissed, and another 24% will result in summary judgment. Without representation, there is no one to manage the pro se plaintiff’s expectations. 63% of the cases in which the plaintiff was represented by counsel reached settlement, whereas pro se plaintiffs reached settlement in just 24% of the cases.
Another contributing factor may be the sheer amount of information available to prospective pro se plaintiffs. Make no mistake, going it alone does not have to be lonely. For example, the web site for the Eastern District of Michigan provides the following:
If you are representing yourself without the benefit of an attorney, you are known as a PRO SE LITIGANT. ” Pro Se” is a Latin term meaning “for oneself.”
To assist you, we have written a booklet, Filing Your Lawsuit In Federal Court , which answers questions most frequently asked by individuals filing their own lawsuit. The online formsreferred to in this booklet are also available in the Clerk’s Office.
As a pro se litigant, you enjoy every right entitled to you under the law. However, pro se litigants are expected to follow/abide by the rules that govern the practice of law in the Federal Courts. Pro Se Litigants should be familiar with the Federal Rules of Civil Procedure and the Local Rulesof this court.
PLUS members can read the full text of this article, and many others, in the PLUS Journal archive.
In this clip from the 2012 PLUS Webinar “FDIC Claims Against Directors & Officers and Other Third Party Professionals of Failed Banks” Michael K. O’Connell (Aon Financial Institutions Practice) looks at the current trend of bank failures and how it compares to the Savings & Loan crisis.
PLUS members can view this entire Webinar by visiting www.plusweb.org/education/multimedia. You must be a member and logged-in to the website to view the multimedia content.
Session panelists not featured in this clip: Andrew Pearson (Barbican Syndicate, Lloyd’s), Christopher Tirro (Chartis) and moderator Ivan J. Dolowich (Kaufman Dolowich Voluck & Gonzo LLP).