A New Reason to Think Twice Before Representing Yourself in Litigation

If you have ever considered representing yourself in litigation (proceeding “pro se,” in legal parlance) as a cost-saving measure, a recent decision by the U.S. Court of Appeals for the Third Circuit might give you a reason to hesitate. Although pro se litigants typically enjoy leniency from the courts, the case of Baldinger v. Ferri is illustrative of why parties to a lawsuit should secure representation by counsel. Many pro se parties are not equipped to participate fully in the litigation process, including responding to discovery requests, attending court dates, and complying with judicial orders. Federal judges at both the trial and appellate levels have now ruled that such a failure to participate can result in the entry of a default judgment and the imposition of sanctions, even against unrepresented parties who pursue litigation without an attorney’s guidance.

In Baldinger, the Third Circuit affirmed a default judgment of over $1 million against a pro se litigant who failed to respond to interrogatories and requests for the production of documents. The default judgment was issued pursuant to the Federal Rules of Civil Procedure, which provide for the imposition of sanctions for failure to obey a discovery order—even against unrepresented parties. Interrogatories and document requests are among the most common vehicles through which discovery is conducted, but they should still be navigated with the assistance of an attorney. Approximately one-third of the judgment in Baldinger was comprised of punitive damages attributable to the pro se defendant’s failure to participate in discovery rather than to any compensable wrongdoing that gave rise to the litigation in the first place.

Courts are becoming less forgiving of the failure to participate fully in the legal process.  The Federal Rules of Civil Procedure provide not only for sanctioning the failure to comply with discovery orders under Rule 37, but also for sanctioning parties that bring frivolous or otherwise improper lawsuits under Rule 11. Those potential penalties apply to represented and unrepresented parties alike, but can be easily avoided by retaining litigation counsel who can distinguish meritorious claims from frivolous ones prior to filing. The Third Circuit’s willingness to uphold the award of massive punitive damages in the Baldinger case indicates that it is increasingly worthwhile to hire an attorney for litigation rather than risk the imposition of potentially severe sanctions in representing oneself.

Frank Gulino joined Berenzweig Leonard as an associate attorney in September 2013.  He can be reached at fgulino@berenzweiglaw.com.