Pro Se Blunder #1 that Costs the Case

One of the main issues of my work - as, formerly, an attorney, now as an investigative journalist - is concentration on issues of access to justice, particularly of pro se litigants, those who cannot afford a lawyer or otherwise decide to represent themselves in court.

A considerable portion of my reporting is dedicated to these issues.

I continue to do case studies on the issue.

Several cases in New York state courts have recently caught my attention with the same recurring errors pro se litigants make - that cost them the case.

The error is: engaging the court too soon.

Example:  a pro se plaintiff filed a complaint, and a defendant - often also pro se, but does not matter - filed an answer, instead of a pre-answer motion to dismiss (MTD).

Filing an answer does not involve assignment of a judge.

Unlike federal courts, in New York State court a judge does not have to be assigned and to enter the case unless and until a party asks for it - and pays for "judicial intervention", RJI.

So - if there is an answer instead of an MTD, the pro se plaintiff needs to jump up and down in joy and to happily and immediately proceed with discovery.  Research Article 31 of the CPLR and serve upon defendant all kinds of discovery devices - relevant to the case.

What pro se litigants do though - often, too often - is that they immediately pay for RJI and ask a judge to be assigned - for a conference.  Why?  What do they hope to achieve by that?  I simply do not know.

And - what do judges often do?  They come in, and through a conference, strongarm a settlement or dismiss the case sua sponte - on the court's own motion, right there at the conference.  

That decision not only ends the case before it really started, without any discovery, but since it is sua sponte, by law and precedent in New York State courts, a sua sponte decision is not appealable as of right.  So, the pro se litigant brought upon himself or herself - for their own money, mind, RJI application has a $90.00 filing fee - an order of dismissal AND an order that is not appealable as of right.

And, it is very, very difficult to have a sua sponte decision vacated and discovery rights restored.

So, the pro se litigant now has the additional pain of having to pay a $45.00 motion fee and to file a motion to vacate that sua sponte determination in order to create an appellate record, and may only appeal from the denial of such motion, not straight from a sua sponte dismissal.

So - where a pro se plaintiff sees an ANSWER, the pro se plainitff had better immediately forget of the existence of an RJI unlesss he wants to immediately make a written motion on notice - and that would be extremely rare (such as an application for a preliminary injunction).

An Answer means an opportunity for discovery.

I wish pro se litigants get at least one consultation from an attorney who knows what he/she is doing before applying for RJI under the circumstances.  It can cost them the case.