Litigants or parties representing themselves in court without the assistance of an attorney are known as pro se litigants. “Pro se” is Latin for “in one's own behalf.” The term “pro per” is an abbreviation of the Latin phrase “in propria persona,” meaning “in their own person,” is also used in some states. It means the same as "pro se."
The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654.
Although it may seem natural to think of litigation as a sporting event where the rules require the game to continue to a definite conclusion, the reality is quite different and more complex. Most cases do not end in a judge's or jury's decision. Instead, over 90% of civil cases are resolved through compromise and settlement rather than a final verdict. Several procedural rules accommodate compromise and settlement, and a sophisticated business strategy incorporates aspects of litigation as bargaining tools.
Litigation is negotiation through other means. Think of litigation as a structured form of negotiation conducted under the rules of the court — a tool used to gain leverage and reach a resolution, rather than an inevitable march to trial.
1. Litigation Is About Costs, Benefits, and Risk Management
Lawyers evaluate cases based on a cost-benefit analysis, weighing the potential outcomes against the expenses, time, and effort involved in pursuing litigation. Several practical considerations drive this approach:
Economic Realities: A case involving a small amount of money can be just as procedurally complex and expensive as a case involving a large sum. For example, both a $500 dispute and a $500,000 dispute might require the same amount of research, discovery, motion practice, and court appearances. It may make good business sense to invest $5,000 in a case worth $500,000, but spending $5,000 on legal fees in pursuit of a $500 claim would not be prudent.
The Hidden Costs of Litigation: Litigation comes with hidden costs beyond legal fees, including the emotional toll, time spent away from work or other obligations, and the uncertainty of the outcome. Lawyers and litigants should consider these factors when deciding whether to settle a case or take it to trial.
Privacy: Litigation pursued to a verdict is part of the public record, meaning the details of the case — including evidence, arguments, and the outcome — are accessible to anyone. This can result in unwanted publicity or damage to reputations. In contrast, settlements typically include confidentiality clauses, keeping the terms private and reducing the risk of negative exposure.
Alternative dispute resolution (ADR): Many contracts require disputes to be resolved through binding arbitration, a form of alternative dispute resolution (ADR) that can often be less formal, faster, and less expensive than court litigation. Additionally, some courts mandate mediation before a case proceeds to trial. These methods can provide a more controlled environment for negotiation and often lead to settlements that are more favorable than unpredictable court rulings.
2. The Unpredictability of Judges and Juries
Litigation is inherently unpredictable. While the law provides a framework for decision-making, judges and juries are human and may interpret the facts and law in unexpected ways. Even seeming clear-cut cases can end in surprising results, making it risky to rely solely on a belief that you will "win" based on the strength of your arguments.
No Such Thing as a "Sure Thing": Very few cases are clear-cut. Each party typically believes they have a strong case, yet both sides cannot win. Lawyers know that the outcome of a case is rarely certain, and even strong cases can be derailed by unexpected developments, procedural errors, or the personal biases of decision-makers.
Thinking in Terms of Probabilities: Rather than framing a case as "winning" or "losing," it is more practical to think in terms of probabilities and expected value. For example, if you believe you have a 50% chance of winning $500,000, the expected value of your case is $250,000 (50% of $500,000). This approach is similar to the way a gambler evaluates a wager — it is about weighing the potential reward against the risk and the cost of placing the bet.
3. Settlements Are Often the Most Rational Outcome
Given the uncertainty of trial outcomes and the high litigation costs, it is no surprise that most civil cases settle before reaching a verdict. Settlements allow both parties to:
Manage Risk: By agreeing to a compromise, both sides can avoid the risk of an adverse ruling, control their costs, and achieve a level of predictability. Even if the settlement is less favorable than a potential court victory, it is often better than facing the uncertainty of trial.
Save Time and Resources: Litigation can take months or even years to resolve, especially if appeals are involved. Settlements provide a faster resolution and allow the parties to move on, rather than being tied up in a lengthy legal battle.
Preserve Relationships: In many cases, the parties involved may have ongoing business or personal relationships. Settlement can help preserve these relationships by avoiding the adversarial nature and potential public exposure of a trial.
4. Thinking Like a Gambler: The Art of Weighing Risks and Rewards
Successful litigants, whether pro se or represented by lawyers, must think like a gambler — not in terms of recklessness, but in terms of strategic risk assessment. Just as a poker player must decide whether to bet, raise, or fold based on the strength of their hand and the risks involved, a litigant must evaluate whether it is worth investing more time and money in a case. If the opposing party’s settlement offer is better than the expected value of continuing the litigation, a rational decision might be to accept the offer rather than "go all in" with the uncertainty of trial.
- Assess Your Odds:
- Consider your chances of success objectively.
- Avoid the temptation to overestimate your case simply because you believe in its merits.
- Try to evaluate your case the way an outsider or neutral party would.
Calculate the Costs:
Weigh the financial and emotional costs of litigation against the potential reward. If the costs of pursuing the case exceed the expected value of the outcome, it may be wise to settle or seek a compromise.
Be Willing to Walk Away:
Like a disciplined gambler who knows when to fold, a reasonable litigant knows when to settle, cut losses, or even drop the case entirely. The strongest position is often one that is guided by rational analysis rather than emotion.
Litigation is not about right and wrong:
Litigation is about managing risk and making strategic decisions based on costs, benefits, and probabilities. The vast majority of cases settle because the risks and costs of trial are simply too high for both sides. Thinking like a lawyer — or even like a gambler — means evaluating your chances realistically, understanding the unpredictability of the legal system, and knowing when to compromise. Keep these practical realities in mind, and remember that the best outcome may not always be a "win" in the traditional sense, but rather a resolution that minimizes risk and maximizes your overall benefit.
- Over 90% of civil cases end in settlement, not trial.
- Litigation involves weighing costs, benefits, and risks, rather than focusing solely on winning.
- Alternative dispute resolution (ADR) methods, like arbitration and mediation, can offer more controlled and private ways to resolve disputes.
- The public nature of trials can expose sensitive information; settlements often provide confidentiality.
- Think strategically like a gambler: assess the odds, calculate costs, and know when to settle or walk away.
