'Where your humanity comes into play': Federal judges educate lawyers about dealing with self-represented plaintiffs

In a given year, one-third of the 3,300 civil cases filed in Colorado's federal trial court have a plaintiff who is representing themselves in matters ranging from civil rights lawsuits and business disputes to allegations of constitutional violations behind bars.

"You underestimate those folks at your peril because they do know what they’re doing. And we quickly understand they know what they’re doing. And the worst thing you can do is not treat them with respect," said U.S. District Court Judge Charlotte N. Sweeney on Tuesday.

Sweeney participated in a webinar sponsored by the Colorado Defense Lawyers Association, whose members may appear on behalf of clients sued by self-represented, or "pro se," plaintiffs. Although pro se litigants are subject to the same requirements as represented parties, the U.S. Supreme Court has advised that their complaints are held to "less stringent standards" than those authored by trained attorneys.

U.S. Magistrate Judge Maritza Dominguez Braswell, who also participated in the webinar, said she honors that directive by looking to a plaintiff's broader set of allegations if "the who, the what, the where" of a claim are unclear.

"A good way of thinking about that," added Sweeney, "a pro se plaintiff isn’t gonna know the right terms. They’re not gonna know necessarily the name of the claim. They’re gonna describe the claim. I do believe it’s the court's job to try and give a name to the claim … and not punish the pro se plaintiff for not knowing exactly what it’s called."

Both judges joined Colorado's federal trial court in 2022, Sweeney as an appointee of President Joe Biden and Dominguez Braswell as a magistrate judge hired by the district judges to assist with the court's workload. Although magistrate judges tend to focus on preliminary and administrative matters, they carry out many of the same tasks as the life-tenured district judges, including handling civil cases on their own.

Quickly, Dominguez Braswell became the first member of the court to adopt a tool employed by only a handful of federal judges across the country: adding a plain English summary at the top of her orders and recommendations in cases involving pro se plaintiffs. She said she has received positive feedback from both sides.

"Plaintiffs obviously find it helpful to have just a very basic description of what the order or recommendation says," Dominguez Braswell explained. "I think for defendants, it relieves them of the burden of having to explain a particular order or recommendation to a party because it’s explained right up front."

She added that the summaries can take a lot of time and have the potential to conflict with the substance of the order, if judges are not careful. But she indicated it is "a good thing" overall and she would keep up the practice.

"It is called a pro se summary, but honestly, in some of these cases, the issues are so complicated, I’m quite sure some of your represented clients aren’t sure what we’re doing either," said Sweeney, who is the only other federal judge in Colorado to follow Dominguez Braswell's lead in providing plain English summaries.

The judges offered advice for attorneys who appear opposite an unrepresented plaintiff: Try to define ambiguous claims in a reasonable way. Emphasize they are not the plaintiff's lawyer, but they do want the plaintiff to understand the rules. Ask the judge to correct misunderstandings the plaintiff may have.

"I, also, as the judge, have to be careful that I don’t cross over that line and start to look like I’m giving them advice. I talk about the rules generally and what typically happens in a case," said Dominguez Braswell. "And then tell them, 'But at the end of the day, this is your call.'"

Attorney Billy-George Hertzke, who moderated the discussion, said lawyers typically act as a "buffer" between the legal process and the emotions of their clients. A pro se plaintiff, however, has no buffer and can lob their feelings at the opposing side or the court directly.

"I’ve had cases where the pro se party on the other side was delightful to work with and we had no problems whatsoever, but those are pretty rare. Also rare is having the pro se party that is always just angry," he said. "Most of the time, it’s the pro se party that’s just trying to feel their way through. And it’s difficult because they’re unfamiliar with the process."

At the same time, he warned against taking advantage of unrepresented litigants — a sentiment the judges agreed with on practical and ethical grounds.

"I think the people who have stuck in my mind the most," said Dominguez Braswell, "are those defense lawyers who come in on a pro se case and are really working hard not only to be courteous to the other side but, frankly, to be as helpful as they can be without crossing ethical lines."

"I can tell you I have read pro se briefs that are better than attorney briefs, and that’s not a joke," Sweeney added. "This is where your humanity comes into play. Understand that these are real people with things they really think were done to them and caused harm. Have just a bit of empathy. It will go a long way. And the goal of the judicial system is to give these people their voice."

She warned that if judges see an attorney who is disrespectful to a pro se litigant, "we will remember moving forward."

Currently, there are three dozen cases in the district court — largely filed by incarcerated plaintiffs — for which judges have authorized the appointment of pro bono attorneys. Historically, two-thirds of cases with appointment orders in Colorado's federal court ultimately result in lawyers taking the case pro bono.