A recent social media post provided an intriguing insight into the struggle of a pro se litigant. It was titled How I Outmaneuvered Two Legal Teams With Ivy League Degrees. The tone is upbeat and energetic, but it is not a step-by-step "how-to" of the litigation process. That said, the author concedes, "There aren’t many guides for pro se defendants, especially in complex cases."
That resonates. I am also not aware of resources that are concise, complete, and comprehensible. The law can be very complex and nuanced. It is often in those nuances and periphery that the challenges become difficult obstacles.
The OJCC publishes some helpful information. On the front of the website (www.fljcc.org), there is a link to "represent yourself" (https://www.fljcc.org/JCC/RepresentYourself.asp), which leads to some general information that may be helpful. It is also not a step-by-step "how-to," but it provides some access to authority and information. There are also a variety of links on the OJCC "Resources" page for education and reading.
The author of How I Outmaneuvered concluded as a premise that she was "statistically" prone to failure. That statement was not supported by facts or figures, but it rings true. Cornell University published a study of 20 years of federal court data, concluding:
"around 12% of pro se defendants received final judgments in their favor while pro se plaintiffs won only 3% of final judgments."
The Cornell article suggests that this might implicate the pro-se litigant, but may also be a reflection on the cases that they litigate. The authors note:
"One explanation for this imbalanced outcome is the attorney contingency fee system. Many times, lawyers work on contingency fee bases where they receive fees only when their clients win. Due to this system, lawyers favor representing clients with stronger cases while parties with weaker cases remain unrepresented."
This explanation perhaps provides some insight into litigation generally. It may also reinforce some level of pessimism regarding the challenge of self-representation; it may support the How I Outmaneuvered author's conclusion of being "statistically" prone to failure and her conclusion that "being pro se wasn’t a choice." It is likely that there are some who choose to self-represent and others who simply cannot locate a lawyer willing to take their case.
The How I Outmaneuvered author makes several interesting suggestions for pursuing success. First, that procedure matters. She notes that there are tribunal rules and processes that matter. She concludes that "Most people lose not because they’re wrong, but because they miss a procedural step." This is an important point.
In Florida workers' compensation, there is merit in knowing the Chapter 60Q Procedural Rules, which may be self-evident. However, there is also merit in the discovery portions of the Florida Rules of Civil Procedure that are specifically incorporated ("as provided in the Florida Rules of Civil Procedure, Rule 60Q6.114). There are other incorporations worth review.
The entire Florida workers' compensation system is statutorily created. This includes definitions, benefits, defenses, processes, and procedures. I am persistently amazed when lawyers who practice this law admit that they have never read this statute cover to cover. That exercise would be a wise investment by someone representing clients or themself.
Litigation often requires timely and complete filings (documents). The path from dispute to determination may involve various instances of judicial decisions. Those decisions will likely be prompted by a motion, which results in a response, and then a decision. Too often, there is a misunderstanding of that interaction. Many find it difficult to understand this progression: motion, response, order. Adapting to its cadence may be helpful.
The How I Outmaneuvered author suggests that there is value in recognizing the importance of rules. She notes that
"Every jurisdiction has its own expectations. Every case type has its own process. And every judge has their way of doing things"
The rules may be critical in any case or any situation within a case. The OJCC rules are published on the website (https://www.fljcc.org/JCC/rules/). Judges in the administrative process of workers' compensation are not supposed to have "local" rules. Judges should follow the published rules. Those who self-represent should be curious about the judge assigned to their case, ask questions when possible, and study prior decisions when possible.
In this vein, the How I Outmaneuvered author's advice includes studying "the judge's previous orders." There is merit in that. The OJCC publishes all trial orders in a searchable database (https://www.fljcc.org/JCC/searchJCC/searchOrders.asp). This empowers anyone to review the orders of a specific judge (use the judge's name as a search term) and can be narrowed by topic (add the title of a specific benefit as a search term).
Thus, if someone wanted to view all of my orders that mention permanent total disability, the terms would be "Langham" and "permanent total disability." The quote marks being included in the query would be helpful in narrowing results. This kind of search and reading may be time-consuming, but may also provide great insight.
Those are only final or "trial" orders. However, all of the orders issued by workers' compensation judges are public records. The litigant can visit the public dockets of cases and access the various orders entered, including procedural orders. These are not categorized by topic, and so finding specifics may be difficult. But, reading such procedural orders may help the pro se party understand the process and outcomes generally.
While those cases may be accessed by searching for a case number, it is also possible to simply use "case attributes" to search for cases assigned to a particular judge. Visit https://www.fljcc.org/JCC/searchJCC/searchCases.asp. The How I Outmaneuvered author says that with such study, "Patterns emerge quickly. Strategy becomes less emotional and more mechanical."
She also seemingly cautions against emotion. Through her study and engagement, she managed to "treat() the litigation like a structured chess match, (and) the other side lost their advantage." That is an interesting point.
It is likely that lawyers involved in litigation are emotionally removed from the dispute. The case is a job, which will be followed by another, then another, and so on. The pro se litigant is likely to have one case, and it will likely be more personal, emotional, and therefore difficult. The study and chess match advice may therefore have merit, despite the challenges of trying to avoid emotion.
The How I Outmaneuvered author perhaps provides some promise or at least premises for the self-represented. There may be merit in studying her perceptions or in diving deeper with research on the reality of being pro se (such as the Cornell article above) or internet queries as to why pro se litigants have not prevailed.
That said, pro se litigants must remain wary of Artificial Intelligence (AI). There are many platforms that provide insight and even drafting assistance. The pro se litigant has to know that those tools often produce hallucinations (case and statute citations that are not real). The litigant must remember that such programs may produce valid authority that is nonetheless not applicable in their state, their case, or a particular dispute or situation. Be very wary of what an AI tells you. Lawyers and judges have been in trouble using AI. A list of my AI posts is here.
People should understand that what they put into such programs, in their "prompts," may become public information. It is possible that your private details may be shared by the AI with others. Critical points not to share are the same as you would not share generally: name, date of birth, social security number, contents of medical records, financial information, and more. In short, these AI tools can be very dangerous and should be used very cautiously, if at all.
Knowing the mistakes or shortcomings of others may educate and empower those who are striving to prevail today. My advice to those who would represent themselves includes:
- Strive to understand what laws and rules apply to your dispute.
- Read the applicable statutes.
- Read the applicable procedural rules—more than once.
- Listen carefully to opposing parties, counsel, and the judge.
- Take notes during hearings, depositions, and mediations.
- Ask questions.
- Google search things like "help for pro se litigants" and "tips for pro se litigants."
- Read much, think about advice critically, and consider seeking help from Legal Aid. lawyer referral services, or similar community services.
All that overviewed, free of charge, remember that nothing in this blog is legal advice. No relationship of attorney and client is created by your reading here, nor even suggested. If you need help, you may want to consult an attorney. For help with that, consider The Florida Bar Lawyer Referral Service, or similar services in your own state or community.
