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Suggestions for Pro Se Litigants

Tell your story. You know the facts about what prompted you to report wrongdoing and what happened to you as a result of those reports. Telling those facts clearly can be the hardest thing to do, as well as the most rewarding. Remember, facts are your strongest argument. The agency attorney and even the AJ (especially where he or she requests a motion to dismiss) may want to ignore them. They can if you let them. Remember, when you're not trained as an attorney, legal arguments are not going to be your strength. Another point--admitting some weaknesses (usually in passing, without focusing on them) at the outset can enhance your credibility. Trying to conceal problems that will be raised unfavorably in the agency paperwork (such as an illness, divorce or financial problems) squanders your credibility. Don't try to sandbag the judge--if you're being blackmailed, saying so is a necessary first step.

Remove attitude. Your credibility is key. Quite simply, expressing a lot of attitude can hurt you. Of course, you're probably angry and want to express yourself. See this page rather than express that anger before any court. Even if you have seen attorneys on TV express a lot of emotion, remember that's staged and is expressed on behalf of a client. The law itself is about logic and precedent more than emotions. Of course, emotions can blind us all. Suggestion: multiple drafts, and even showing them to people you trust before filing them. Confidentiality concerns are addressed here.

Do the research. The pro se links include links to legal search resources. Others are accessible through the MSPB website or various advocacy organizations. Remember no one looks as foolish to a judge as someone who cites a case that they clearly have not read. A style point: use MSPR cites rather than the case numbers on the website. And if the agency attorney or AJ cites to something looking like (year) Lexis (page) or (year) Westlaw (page), talk to a law librarian. These may indicate nonpublished opinions (only available from the lawyers' subscription services), which are in theory not supposed to be cited because of that limited availability.

Call the problems without getting caught up in them. Not all Administrative Judges are perfect, nor are the filings of the attorney opposing your claim. It is all too easy to get caught up in attacking their inadequacies rather than telling your own story. Of course, you need to address the points they have raised, but they need not divert your focus. Footnotes are a great way to address minor issues quickly, because you do need to "preserve error" (that is, keep your objection known) for the next higher level. Another common error is to get caught up in non-winning minor arguments, like that the wrong level of underling signed a form sanctioning you. Mention it and move on. There are probably stronger arguments to be made where the AJ or agency attorney, for example, only cites cases involving misbehaving employees when you are trying to prevent misbehavior. Another common problem is where the AJ or agency only cites cases decided before the 1994 Amendments. Remember, Congress passed those Amendments because earlier cases were too harsh and ignored the clear congressional intent (and public policy) to help government employees disclose and correct illegal, immoral and unethical conduct. Another common problem may be that the AJ's standard order (threatening to dismiss a pro se claimant's case without any hearing) may be unintelligible to you as a non-lawyer, or it may be drafted to fit a disability or RIF case, rather than a whistleblower case like yours.

Request discovery and a hearing. While the agency and AJ may not allow you access to agency documents relevant to your case, you will never know unless you ask, and you must ask quickly--within 25 days. In the same vein, while you might not be given a hearing even if you ask, you will never get a hearing unless you request it in writing, and keep requesting it. These points are very important if the AJ decides against you on the documents the agency has submitted and without a hearing, as often happens. While it seems small hope to appeal these points with the MSPB and later Federal Circuit, neither agency nor court will be able to order you given discovery or a hearing if you did not keep requesting it at the first level--before the AJ.

Courtesies. It is possible to fight tough and fair. This of course means no name-calling, as hinted at in the attitude suggestion. Other suggestions include setting forth your story first (before addressing the legal issues, though of course while keeping them in mind to ensure including appropriate facts), putting page numbers on each page, and using a normal business typeface and double-spacing pages. Another useful practice is to get a stamped copy of each filing from the clerk for your own files. If you cannot go to the MSPB or other office where the filing is made, you might call that office to see whether you can include an extra copy and a SASE (self-addressed, stamped envelope) and have the clerk mail it back to you. Plus, remember, you are supposed to give your opponent a copy of each filing when you make it. The clerk's office may tell you the appropriate person and address--it's a good idea to call them beforehand to double-check filing requirements, behaving courteously all the time, of course.


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