Our court system relies in large part on voluntary compliance with the “rules of the game.” In contested probate/trust proceedings litigants can (and are expected to) vigorously compete with each other, but the system collapses in on itself if it turns into a mud-slinging free for all.
There are all sorts of pressures, both formal and informal, that keep lawyers (and by extension their clients) in line. But when it comes to out-of-control pro se litigants the checks-and-balances built into our court system don’t work nearly as well, as explained in an excellent 2006 article by J. Caleb Donaldson entitled: Vexatious Pro Se Civil Litigants in the Massachusetts Courts (2006). Here’s an excerpt:
Pro se litigants are . . . immune from many of the . . . pressures that would cause attorneys to desist from frivolous or harassing litigation. For one thing, an attorney is a repeat player whose livelihood is at stake – a reputation as a bad-faith litigant can harm an attorney’s career long before formal sanctions apply. Attorneys are also subject to discipline from the Bar and to disbarment proceedings. A pro se litigant, therefore, is not subject to the same wide range of disincentives to vexatious, frivolous or harassing litigation. And there is an additional problem, often left unspoken. Many of the most egregious vexatious pro se civil litigants appear from their pleadings to be suffering from mental illness. Such litigants cannot be expected to respond rationally to the threat of penalties.
As a result, some pro se litigants impose undue burdens on the courts. Litigants who file harassing, duplicative or incomprehensible pleadings, and whose motion practice is meritless and disproportionate to the action at bar create a drag on the system and poison the well of goodwill toward other litigants who represent themselves. Additionally, such proceedings make a mockery of the court system and threaten the respect for the judiciary that is essential to its functioning in society.
Although the “Florida Vexatious Litigant Law” [F.S. 68.093] is specifically designed to address this problem, the statute is not fool-proof. In fact I think the procedural hurdles built into the statute render it meaningless for the vast majority of contested probate/trust proceedings where a vexatious pro se litigant is interfering with everyone’s ability to get a fair hearing on the merits.
The following two opinions provide valuable guidance for probate counsel seeking to craft a proper response to the vexatious pro se litigant in those cases where F.S. 68.093 falls short.
4th DCA: Court to pro se litigant: Put it in writing
Bernheim v. Broberg, — So.2d —-, 2008 WL 441621 (Fla. 4th DCA Feb 20, 2008)
In this case the personal representative obtained an order from the probate court requiring a pro se litigant to communicate solely through writing. The opinion doesn’t explain why this order was needed, but I like it, and can easily imaging all sorts of scenarios where this minor restriction on a pro se’s conduct would make everyone’s life (especially the judge’s) dramatically easier.
When reading the following excerpt it’s also important to note that this is NOT the type of order that can be appealed/quashed by an appellate court (i.e., you shouldn’t get sucked into 6-12 months of meaningless appellate motion practice if the probate court grants this order).
This case involves . . . a certiorari petition challenging an order granting the personal representative’s motion to require Bernheim, who was pro se, to communicate with the personal representative and his counsel solely through writing. . . . We dismiss the certiorari petition directed to the order on communication as the petitioner failed to meet his burden of demonstrating the “jurisdictional” “irreparable harm” prong of certiorari review. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc).
1st DCA: Court to pro se litigant: Go hire a lawyer
Pflaum v. Pflaum, — So.2d —-, 2008 WL 425585 (Fla. 1st DCA Feb 19, 2008)
As I’ve written before [click here], Florida probate courts have recognized that requiring a pro se litigant to simply hire a lawyer can be a very effective tool for curbing vexatious conduct. That’s what the appellate court did in this case. When you read the following excerpt note that the court also finds that Florida’s vexatious-litigant statute does NOT apply in appellate proceedings.
Having now considered appellees’ motion and appellant’s response, and taken notice of Peter E. Pflaum’s cases in this court and his filings therein, we conclude that imposition of a sanction is appropriate in accordance with Florida Rule of Appellate Procedure 9.410 and this court’s authority to control its docket. See May v. Barthet, 934 So.2d 1184 (Fla.2006); Lee v. Fla. Dep’t of Corrs., 873 So.2d 489 (Fla. 1st DCA 2004). Accordingly, Peter E. Pflaum is hereby prohibited from appearing before this court as appellant or petitioner unless represented by a member in good standing of The Florida Bar. He is permitted 15 days from the date of this order within which to retain a Florida attorney who shall file a notice of appearance in this and his other active cases, failing which the cases will be subject to dismissal. The clerk of this court is directed to accept no further pro se filings from Peter E. Pflaum; if received, the filings shall be returned to the sender without filing and with reference to this order.
Appellees have asked this court to certify that Peter E. Pflaum is a vexatious litigant pursuant to section 68.093, Florida Statutes. That portion of appellees’ motion must be denied because the statute, by its express terms, applies only to proceedings in the trial courts. That limitation, of course, does not affect our authority to impose the sanction described above. Appellees also move for an award of attorney’s fees pursuant to section 57.105, Florida Statutes, and we defer a ruling on that portion of the motion until final disposition of this proceeding. Appellees’ motion to dismiss is denied at this time, but the case will be subject to dismissal if appellant fails timely to comply with the terms of this order.