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Dealing with the Pro Se Party

Monday, May 11, 2026 9:55 PM | Anonymous

Exponent Rises to 13th in Global Arbitration Review Rankings | Exponent

How do you handle a party that is not represented by counsel putting himself on the witness stand?  Do you just let him give a monologue?  Do you require him to ask himself questions and then answer them?  What are the problems the arbitrator should anticipate?

What are your thoughts?

Comments

  • Tuesday, May 12, 2026 9:35 AM | GTS
    I offer ahead of time to let them submit a written statement/monologue as evidence and then they can be cross examined on it.
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  • Tuesday, May 12, 2026 9:48 AM | Ruth samas
    I place them under oath and then say: tell me what you want me to know.
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    • Tuesday, May 12, 2026 10:20 AM | Diane O'Connell
      I agree, I do the same thing
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      • Tuesday, May 12, 2026 7:01 PM | Andy Tramont
        I take the same approach as Ms. Samas and Ms. O’Connell. I feel that any inherent unfairness to the other side is mitigated by the ability to cross examine the unrepresented party.
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  • Tuesday, May 12, 2026 9:50 AM | Oz
    What are you all doing about incessant AI drafted filings asserting alphabet soup of claims?
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    • Wednesday, May 13, 2026 10:41 AM | Bill Colvin
      To Oz's comment about Pro Se parties submitting page after page of AI generated materials that legally are not on point, this could be a separate Q&A. I am dealing with that right now.
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  • Tuesday, May 12, 2026 9:53 AM | Stanley Santire
    By monologue I presume you mean you mean an opening statement. Yes, that is done. Beyond that, I believe the pro se is entitled to question and and has the obligation to be questioned. Of course the primary problem is that the pro se probably does not understand the applicable law which inherently puts that party at an advantage. Here, perhaps, the only resolution consists of the nature of questions by not only counsel for opposing party but the type of questions posed by the arbitrator.
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  • Tuesday, May 12, 2026 9:55 AM | Jeffrey Wurst
    In many situations but in particular with pro se parties, I require direct testimony to be presented by a proffer, submitted in writing at least 24 hours prior to the scheduled testimony. The witness is then available for cross examination and redirect, if any.

    “Redirect” is presented as a sworn statement, not by a pantomime of Q&A. I suggest that we take a recess during which time the pro se witness is to outline or draft the written Redirect Statement.

    I also find this to be effective with attorneys who may otherwise be less prepared and spend time framing questions. I first saw this used by the Bankruptcy and District Courts of the Eastern District of New York during the early 1990s. I believe it was then referred to as Rules for Judicial Economy or the like.

    I have found myself straining to remain patient with lawyers struggling to frame their questions. While this is better understood on cross examination or redirect, it should not happen during direct examination if the attorney is prepared. The use of the written proffer compels the attorney to be prepared prior to the opening of the testimony.

    I find it important to remain patient with pro se parties and encourage their adversaries to do the same. In general, I have found attorneys to be very accommodating to their pro se adversaries.
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  • Tuesday, May 12, 2026 10:03 AM | David E. Robbins
    First and foremost, you should not become the party's attorney. Let him or her present the case in a narrative (skip openings since pro se openings tend to be their case in chief) but make sure they support their testimony with evidence. Tell them that when they are complete, the opposing counsel will ask questions followed, if they deem it necessary, by the arbitrators. Don't interfere with the narrative or ask leading questions.
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  • Tuesday, May 12, 2026 10:12 AM | Jack Kiefner
    I allow pro se parties to make a written submission, although a final hearing of some sort is set. In that submission, I suggest that they tell their story and remind them that they have the burden to prove entitlement to the relief which they are seeking, when they are claimants, including the amount of damages and the justification. I also tell them that during the hearing they will be able to make an oral submission, to tell their facts, equitable, considerations, and legal considerations. I tell them that I do not just want them to read their submission, if they have made one, for the heck of it.I do remind them that arbitrators are neutral and are not to be relied upon to literally try to make a case or defend a case for a pro se party. I also remind them that they have the opportunity to have counsel and they are voluntarily waving that opportunity. I tell them that all parties are expected to adhere to a high moral, legal and ethical standard as far as representations, whether it be factual or legal, and that the arbitrator relies on what is presented to him/her by the parties and does not independently undertake research projects. Also, I think in the preliminary scheduling order there should be at least a short section, affirming, particularly when there is a pro say party, that if they are relying upon artificial intelligence that it is their responsibility, and the responsibility of the opposing party, to use all reasonable and best effort to confirm the contents and accuracy of any third-party research sources to make sure that there have been no “hallucinations” occurring, which can happen with regard to AI. I try to be liberal in allowing a pro se party to “wander“ a reasonable amount, but I do not hesitate to do my best to hold them to matters which pertain to their case and not use the final hearing process to promote either political, social or other issues which are irrelevant to the purpose of the particular arbitration. I have had some very patient and excellent pro se litigants I have also had pro parties who are so annoyed about having to go to an arbitration and have certain expectations and, in fact, demand which are unreasonable and not based on fact, law or equitable consideration for that matter. They just believe they were wronged and that the arbitrator needs to lean over backwards to right that wrong as a responsibility of the arbitrator primarily and forgetting that they have the burden of proof. I have also had proceed litigants file massive amount of materials with the AAA, which undoubtedly they find on the Internet. I tried to remind them during the preliminary hearing that in order to keep the cost under control they should not engage in a pattern of filing anything and everything that they come upon on an ongoing basis. Some adhere to that, and in fact file too little; others seem to ignore that warning, which just affects cost and, potentially, prevailing party, attorneys fees. Of course, I remind them that they will be subject to process examination by the other party at the final hearing and that I will likely ask some clarifying questions which I do not want them to take as any type of prejudgment. I just want to understand their claims and the base for those claims.Enough said for now.
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  • Tuesday, May 12, 2026 10:13 AM | Anonymous
    I would say that one of the important motivations in this scenario is to allow the pro se party, as much as possible, the feeling that their "case" has been heard. So, I would recommend allowing a monologue, perhaps guided a bit more aggressively than normal with my own questioning or prompts to keep it on topic.

    There used to be a judge in Brooklyn who would go around to all parties and ask them their arguments then he would repeat them to the party, allowing the party to correct him until he got it right. I often think that was a great system for at least allowing each party the opportunity that their argument was heard and understood, even if finally rejected.
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  • Tuesday, May 12, 2026 10:15 AM | David J. Hoffman
    I would say that one of the important motivations in this scenario is to allow the pro se party, as much as possible, the feeling that their "case" has been heard. So, I would recommend allowing a monologue, perhaps guided a bit more aggressively than normal with my own questioning or prompts to keep it on topic.

    There used to be a judge in Brooklyn who would go around to all parties and ask them their arguments then he would repeat them to the party, allowing the party to correct him until he got it right. I often think that was a great system for at least allowing each party the opportunity that their argument was heard and understood, even if finally rejected.
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  • Tuesday, May 12, 2026 10:52 AM | David Kotzian
    I agree that it is important that the pro se party feels like they had an opportunity to be heard, and if they ultimately lose the case they have some understanding of why. Therefore, I make an introductory statement before their testimony listing the legal claims that have been presented in the arbitration, describing what my role is as an arbitrator in deciding those claims, and telling them that this is their opportunity to provide me the evidence they believe they have to support those claims. I do not question them as if it's direct examination, but I will redirect them if they go off track. For example, I might say "I appreciate the fact that you believe your termination was unfair, but the claim you made in this arbitration is that your termination was because of your age. What evidence do you have that your age was a factor?"
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  • Tuesday, May 12, 2026 11:33 AM | Anonymous
    I have had this situation recently and wish I had the benefit of this blog beforehand. That said, going forward in this situation I would always require a written declaration by the pro de party and require it to be filed a day or two before the scheduled cross examination. Allowing a narrative is frankly a disaster which tends to become e more argumentative than testimony should be, with the added complication of opposing counsel anxious to repeatedly object; it is not efficient and gets cumbersome. The alternative to have questions both asked and answered by the individual pro se party is a possibility, but awkward and I think far less efficient than filing a declaration to be cross examined. The declaration is work for the pro se but it does require them to clarify their thoughts and best communicate the evidence they want to submit. The narrative method is active consuming disaster in my view.
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  • Tuesday, May 12, 2026 11:55 AM | Jenny Lloyd
    I try to explain the difference between evidence and argument at the start (either in the preliminary conference or the start of a final hearing). I explain that evidence is fact-based, relevant, and reliable, and argument is not evidence and I cannot rely on it in making my final decision. When a pro se wanders off during his narrative testimony, I try to remind him of this distinction and ask him to focus on evidence not argument.
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  • Tuesday, May 12, 2026 2:13 PM | Thomas Hanrahan
    be patient and practical. I had this situation very recently (although I sniffed a lawyer lurking in the background). I let the unrepresented party tell their story in a monologue, followed by C-X . It was fine, and I nudged the party/witness back into the lane once in a while when things got tangential. The more interesting part was post-hearing, which featured a series of emails from the pro se party making some points overlooked in the initial post-hearing "brief." I accepted those up to a point and then said "no more, please."
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