Exception Gives New Hope to Pro Se Litigants
Courts and Congress must protect the rights of pro se plaintiffs
Last year, I represented myself in an age-discrimination lawsuit against my employer, a school district in Northern Indiana. Despite not having an attorney, I resisted pressure to settle and took my case all the way to a jury trial. In the end, I won a judgment for more than $200,000.
But in the course of my experience, it became very apparent that the deck was stacked against me just because I was proceeding pro se – that is, representing myself without an attorney. It's hard enough for a layman to win in court as it is, but the apparent disdain and discrimination that courts and judges show toward pro se litigants make it that much harder.
I was fortunate. But unless there are reforms to protect pro se litigants with meritorious civil cases, others will suffer injustices for exercising their right under federal law to manage their own litigation.
The judge in my case offered an angry and dismissive "Here we go!" when I argued that he must liberally construe the allegations in my complaint, as the 1972 Supreme Court precedent Haines v. Kerner dictates. He also disregarded the court's own local rules by denying my right to conduct my own voir dire of the prospective jurors, simply because I was proceeding pro se. He berated me in open court for my refusal to retain an attorney, and condescendingly informed me that he didn't think I would prevail at the trial. At various points, including when he urged me to accept the defendant's settlement offer, I felt he was trying to intimidate me simply because I chose to represent myself.
The disdain by federal judges against pro se litigants is a serious problem in our country, which the Supreme Court and Congress should rectify. Perhaps some judges have seen too many frivolous pro se lawsuits for their liking. Surely many such lawsuits are not meritorious, and the majority are brought by prisoners. Perhaps this is why some judges read only as far as "pro se" before rolling their eyes.
But that shouldn't make a difference, as all cases are to be judged on their merits, not by the persons who bring them. By law, every federal judge must take an oath affirming to "administer justice without respect to person, and do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform all the duties incumbent upon me as judge under the Constitution and laws of the United States."
The Judiciary Act of 1789, one of those laws, states that "in all courts of the United States, the parties may plead and manage their own causes personally." It follows that federal judges must respect the pro se litigants' right to represent themselves. Thus, the Supreme Court and Congress have means to remedy the problems with federal judges who disrespect and ignore the rights of pro se litigants.
Every Supreme Court Justice is in charge of a judicial circuit in the country. The justices and the Judicial Conference of the United States should make each federal judge understand that they are expected to treat pro se litigants with respect and without disdain. They should make clear that judicial councils will take complaints seriously if judges behave in a prejudicial manner toward litigants who represent themselves.
Congress also has a role. In extreme cases it has the power to remove judges, of course. But short of that, it can at least underscore the seriousness of the rights it established for litigants in the Judiciary Act. Whether through binding or nonbinding language on the topic, Congress can make clear that complaints about violations of the rights of pro se litigants must be taken very seriously by judicial councils.
Courts are not supposed to be a playground for attorneys. They are the halls of justice for ordinary people to have their day in court and receive justice, no matter their social standing or profession. And yes, that includes litigants who choose to manage their own cases. It's the law.
Brian Vukadinovich is a retired teacher in Indiana.
Copyright 2018, Washington Examiner
From: Brian Vukadinovich, "Courts and Congress must protect the rights of pro se plaintiffs," Washington Examiner, Opinion, August 25, 2017, https://www.washingtonexaminer.com/courts-and-congress-must-protect-the-rights-of-pro-se-plaintiffs, accessed March 30, 2018. Brian Vukadinovich can be reached at firstname.lastname@example.org. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
Note: Vukadinovich's book, MOTION FOR JUSTICE: I Rest My Case, was published in 2018 by Page Publishing, Inc., New York, N.Y., and contains a forward written by Retired Judge Richard A. Posner.
Federal lawsuit victor puts the ‘pro’ in pro se
The moment is crystalized in Brian Vukadinovich’s memory: the instant believes he won over a federal jury as he represented himself in a lawsuit against the school corporation that fired him at age 60.
The then-president of the board of the Hanover Community School Corp. in Lake County, Mary Joan Dickson, was on the stand in the federal courtroom in Hammond. She had testified that in a meeting with superintendent Carol Kaiser, Vukadinovich had received due process in his meeting with the superintendent.
When he cross-examined Dickson about his meeting with the superintendent, Vukadinovich asked her a simple question: "Were you there?" Dickson had to admit she hadn’t been. "I think that had a major impact on them," Vukadinovich said in an interview. "The jury saw through all of it."
Later came another frozen moment when Vukadinovich said he sensed things going his way: deliberating jurors sent a note to the judge asking for a calculator. "At that point it was evident that the jury was going to decide in my favor," he said.
The jury earlier this year did rule in Vukadinovich’s favor, awarding him $203,840.39 in compensatory damages on his due process claim, but it didn’t find for him on his age-discrimination or retaliation counts. Chief Judge Philip P. Simon in a terse 32-page order affirmed the verdict in October, after both sides raised post-trial issues on a number of grounds.
"At the heart of this over-litigated dispute is a simple single-plaintiff employment dispute," Simon wrote, chastising the parties for "thousands of pages of testimony and evidence and hundreds of pages of often misguided and vitriolic briefing."
Simon ordered final judgment entered earlier this month in line with the jury’s verdict. Nicholas Otis, a LaPorte attorney who represents the board, said before final judgment was entered that no decision had been made on whether the school corporation will appeal. So did Indianapolis attorney Marsha Volk Bugalla, one of five attorneys of record who represented the school district defendants and who is no stranger to Vukadinovich. Neither Otis nor Bugalla replied to a message seeking comment after final judgment was entered.
Vukadinovich said when he was notified of his termination in 2012 as part of a school corporation reduction in force, he requested a meeting with the board to find out why. An eight-year employee, he taught middle school and high school vocational education and Project Lead the Way classes. He said the answers he received from school officials seemed to shift, and he never did get a meeting with the board.
"They wouldn’t answer any of my questions," he said. "They were trying on the one hand to say there wasn’t student interest there for my classes, and when I tried to address that, they pushed me out the door."
Simon wrote that the evidence at trial supported the jury’s verdict. "Kaiser admits that she did not tell Vukadinovich why he was being terminated, and her only excuse for this was that he never asked," he wrote. "That defies common sense. It isn’t a game of 'Guess the Reason You’re Being Fired.'
"The evidence showed that the School was playing a game of Whack-a-Mole with Vukadinovich — they would tell him one reason for his termination and when he would try to dispel it, they would then come up with another reason," the judge wrote. "… To put it bluntly, after several years of presiding over this litigation, including a five day jury trial, I cannot tell you why Vukadinovich was terminated. The jury surely must have sympathized with Vukadinovich, who simply wanted a straight-forward explanation for why he was being let go."
Atypical pro se plaintiff
Bugalla said it’s not unheard of for a pro se litigant to prevail in a federal lawsuit. "A lot of it depends on how a judge chooses to instruct a jury," she said, stressing the jury found for the school board on two of three counts. "It certainly does matter that he did not prevail on the other (counts)."
And Vukadinovich isn’t the typical pro se plaintiff, either, she said, noting his "extensive history of litigation. … It’s not the first time he ever filed a lawsuit."
Records from the U.S. District Court for the Northern District of Indiana show Vukadinovich has filed seven federal suits there since 1995 — five against school districts that employed him, one against the American Federation of Teachers, and one breach of contract case. Among these, in 2012, he settled three separate employment cases against various Lake County school districts Bugalla represented. Court documents show he was paid $100,000 to jointly settle those disputes.
Vukadinovich said in his case against Hanover schools, he was given a pretrial settlement offer of $150,000. He said this was far less than his economic damage calculated by an expert. "This wasn’t all about money, this was actually about justice," he said of rejecting the offer. "It was about an employer lying and trying to cover up and not following the law, and it had to come out, and it did."
Having his say
Other things made Vukadinovich an atypical pro se plaintiff: Many years earlier, he’d worked in a Chicago law firm when he was considering a career as an attorney. It made him change his career path. "I just got to see the inner workings of what went on, and it all seemed to be about money and power," he said. "I didn’t see how justice was the goal."
He said as he was formulating his complaint, he talked with lawyer friends who advised him not to represent himself, and he heard them out. But he balked at attorneys’ demands for thousands of dollars up front as a retainer, and to their insistence that he not talk to the press if he were represented by counsel.
And Vukadinovich has plenty to say a luxury many lawyers often don’t have. While he was pleased with the result of his trial, he claims Simon improperly pressured him to accept a settlement and made representing himself an even greater challenge. Before his trial, he wrote a letter to U.S. Supreme Court Justice Elena Kagan detailing his concern that his right to represent himself was being compromised and that Simon wasn’t providing the liberal reading to which pro se claims are entitled.
"Judge Simon went out of his way to make it difficult for me to win my case" and was "was very intimidating and out of line in how he treated my pro se status," Vukadinovich said.
Simon did not respond to an email seeking comment.
Vukadinovich said he isn’t done talking: He’s heard from pro se litigants and lawyers around the country and is writing a book about his trial experience. The case is Brian Vukadinovich v. Hanover Community School Corp., et al., 2:13-cv-144.
Copyright 2017, theindianalawyer.com
From: Dave Stafford, "Federal lawsuit victor puts the ‘pro’ in pro se," The Indiana Lawyer, December 14, 2016, https://www.theindianalawyer.com/articles/42265-federal-lawsuit-victor-puts-the-pro-in-pro-se, accessed March 30, 2018. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.