1.10Pro Se Litigants
In both civil and criminal cases, a party has a right to represent himself or herself. Const 1963, art 1, § 13. See also MCL 600.1430; MCL 763.1.
Individuals who represent themselves are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962) (noting that the trial court warned the defendant he should secure counsel); Totman v Royal Oak School Dist, 135 Mich App 121, 126 (1984). An appellate court will not overlook a party’s tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324, 330-331 (1990); Bachor v Detroit, 49 Mich App 507, 512 (1973) (noting that “[a]ppearance in pro per does not excuse all application of court rules”). When a litigant elects to proceed without counsel, the litigant is “bound by the burdens that accompany such election.” Hoven v Hoven, 9 Mich App 168, 174 (1967).
Committee Tips:
No special warnings or cautions are required; however, it is good practice to caution the pro se litigant that he or she may wish to consult with and be represented by an attorney and that he or she should not expect special treatment because he or she is a pro se litigant.
The court may reference particular statutes, court rules, or rules of evidence that may have significance in a particular case.
Explain to a pro se litigant that he or she does not have to testify, but if testifying, he or she may be subjected to cross-examination.
Although a party has a right to represent himself or herself, an individual may not represent another person or entity. See MCL 600.916 (unauthorized practice of law); Shenkman v Bragman, 261 Mich App 412, 416 (2004) (finding that the appellant was representing his grandfather’s estate, not himself, and was therefore engaged in the unauthorized practice of law). A corporation “can appear only by attorney regardless of whether it is interested in its own corporate capacity or in a fiduciary capacity.” Peters Prod, Inc v Desnick Broadcasting Co, 171 Mich App 283, 287 (1988), citing Detroit Bar Ass’n v Union Guardian Trust Co, 282 Mich 707, 711 (1938). Also, a minor’s next friend cannot act as the minor’s attorney unless he or she is an attorney. Marquette Prison Warden v Meadows, 114 Mich App 121, 124 (1982). Finally, a personal representative may not represent an estate. Shenkman, 261 Mich App at 416 (2004).
“[A] person who represents himself or herself cannot recover actual attorney fees even if the pro se individual is a licensed attorney.” Omdahl v West Iron Co Bd of Ed, 478 Mich 423, 432 (2007). The phrase “actual attorney fees” requires that an agency relationship exist between an attorney and the attorney’s client and that an attorney be acting on behalf of a client separate from the attorney. Id.
Facilitating ability of litigants to be fairly heard. “A judge may make reasonable efforts, consistent with the law, court rules, and rules of evidence, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.” MCJC 3(A)(4). “In the interest of ensuring fairness and access to justice, judges may make reasonable efforts that help self-represented litigants to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law.” MCJC 3(A)(4)(a). “The judge should be careful that the reasonable efforts do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality.” Id. “In some circumstances, particular efforts for self- represented litigants are required by decisional or other law.” Id. “In other circumstances, potential efforts are within the judge’s discretion.” Id. “Reasonable efforts that a judge may take in the exercise of such discretion include, but are not limited to:
(i) Construe pleadings to facilitate consideration of the issues raised.
(ii) Provide brief information or explanation about the proceedings.
(iii) Ask neutral questions to elicit or clarify information.
(iv) Modify the traditional manner or order of taking evidence.
(v) Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.
(vi) Inform litigants what will be happening next in the case and what is expected of them.” MCJC 3(A)(4)(b).