Client Update: February 2024

February 2024

Client Update

Table Of Contents 03

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Public Records

Benefits Corner

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Retirement

Did You Know?

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Meyers-MiliasBrown Act

Consortium Call Of The Month

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Governmental Claims

On The Blog

Contributors: Cynthia O’Neill Partner | San Francisco Ashley Sykora Associate | Los Angeles

Nathan Price Associate | Los Angeles Stephanie J. Lowe Senior Counsel | San Diego

Connect With Us! Copyright © 2024 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000.

Cover Photo: Attributed to pexels.com

Client Update is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Client Update should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Peace Officer Record Disclosure Law Supersedes Contrary Secrecy Laws.

February 2024

public Records interpret the new law otherwise would “nullify” its application to a significant swath of officer-related records.

The Court found support for its interpretation in Penal Code Section 832.7 was amended to promote Penal Code section 832.7(b)’s legislative history. That transparency and public access to certain peace officer history emphasized that the public has a right to know records. Under section 832.7(b), records relating to all about serious police misconduct, as well as about officers who commit specified types of harmful or officer-involved shootings and other serious uses of unlawful conduct are public records under the California force. Concealing officer violations of civilians’ rights, Public Records Act (CPRA). or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, The First Amendment Coalition and KQED Inc. (the makes it harder for hardworking peace officers to do Requestors) filed CPRA requests for records with the their jobs, and endangers public safety.

California Attorney General and the Department of First Amendment Coalition et al v. Superior Court, 98 Cal. Justice (Department) relating to: 1) a peace or custodial App5th 593 (2023). officer’s discharge of a firearm at a person; 2) a peace or custodial officer’s use of force that resulted in death or great bodily injury; and 3) a sustained finding of Some Law Enforcement Drone dishonesty or sexual assault against an officer. These Videos May Qualify For The categories of records are among those that Section CPRA’s Investigation Or Catchall 832.7(b) makes available for public inspection.

A portion of the CPRA (Gov. Code section 7927.705), however, states that public agencies generally do not have to disclose records that are exempted or prohibited from disclosure under “state law.” Relying on that part of the CPRA, the Department withheld some records that were either exempted or prohibited from disclosure by Government Code section 11183, Penal Code sections 6126 and 6126.3, and/or Unemployment Insurance Code section 1094. In response, the Requestors filed a motion to get the withheld records. The Requestors lost in the trial court and appealed.

The California Court of Appeal held that Penal Code section 832.7(b) supersedes conflicting state law disclosure exemptions. The Court reasoned that to

Exemptions.

The City of Chula Vista operated a pilot program using police drones to respond to 911 calls. The drones gave officers and commanders important preliminary information about what they would encounter on scene. Arturo Castañares, a journalist and private pilot, submitted a California Public Records Act (CPRA) request seeking information about the City’s drone program, including all drone video footage from all flights in a one-month period.

The CPRA gives every person a presumptive right to inspect any public record, except those that the law expressly exempts from disclosure. Most relevant here is that the CPRA exempts from disclosure certain records

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of police investigations. (Gov. Code section 7923.600(a).)

Also, the catchall CPRA exemption allows a government agency to withhold records if it can demonstrate that the public interest served by withholding specific records clearly outweighs the public interest served by disclosure.

The City provided all the information requested, but withheld the video footage as exempt under the investigations and catchall exemptions. The City argued that every response to a 911 call requires the police to investigate the circumstances that lead to a call.

Castañares sued to get the video footage.

The trial court agreed with the City that the videos were records of investigations. The court also found that any benefit of disclosure was outweighed by the “unreasonable burden” placed on the City to redact the videos. The City submitted a declaration that it would take 1833.3 hours, or 229.2 workdays, to redact the footage alone, not including the additional legal review, research, and quality control necessary to evaluate privacy, safety, and legal concerns.

Castañares appealed.

The Court of Appeal overruled the trial court on both counts. The Court found that the trial court improperly treated the videos as categorically exempt investigation records. The Court also found that there was not enough information in the record on appeal to determine if the catchall exemption applied. The Court sent the case back to the trial court to conduct further proceedings. The Court did not foreclose the possibility, however, that the records could all be exempt, if the City further developed the evidentiary record.

The Court “suggested” that the trial court require the City to separate the videos into three categories. The first category would be video footage that is part of an investigatory file. This footage would be exempt under

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Consortium

the investigations exemption. The second category would be videos that were not included in an investigation file but were instead used to investigate whether a law was violated. The Court noted that these records may still be exempt, as long as law enforcement was reasonably contemplated. The last category would consist of videos that did not fall into the other two categories. This footage would likely consist of instances where a drone was used to make a factual inquiry to determine what kind of assistance may be required, as opposed to investigating a suspected violation of law. According to the Court, video footage used for a factual inquiry, without a suspected violation of law, would not qualify under the investigation exemption, but might qualify under the catchall exemption.

Castañares v. Superior Court (City of Chula Vista), 98 Cal. App.5th 295 (2023).

NOTE: Law enforcement agencies should use Castañares as a prompt to prepare for similarly sweeping requests for videos and other types of audio/video records. If a video is not attached to an investigation file, but law enforcement is possible, then agencies should mark the video accordingly. Based on the decision, law enforcement agencies should expect courts to be more exacting in analyzing whether records qualify under the investigation exemption.

LCW attorneys, including our Public Safety Practice Group, regularly advise and represent public agencies in connection with matters involving the California Public Records Act, including reviewing/updating policies and procedures, responding to requests, reviewing/redacting records, and defending CPRA litigation.

For a more detailed discussion how law enforcement agencies can apply this case, please see J. Scott Tiedemann’s Special Bulletin here.

Seminars

Webinars

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

February 2024

Congratulations to

Brett Overby

retirement

for her promotion to Senior Counsel!

County Retirement Association Properly Excluded Particular Compensation From Benefit Calculation.

The Ventura County Employees’ Retirement Association (VCERA) is a public retirement system that provides retirement benefits to County employees. VCERA is governed by the County Employees Retirement Law of 1937 (CERL) (Gov. Code Section 31450 et seq.), and the California Public Employees’ Pension Reform Act of 2013 (PEPRA) (Gov. Code Section 7522 et seq.).

A VCERA member may receive compensation for leave cash outs—accrued, but unused, hours of annual leave. A member’s terms of employment (e.g., a Memorandum of Agreement or the County Management Resolution) limit the number of hours a member may cash out in a calendar year. The VCERA adopted a resolution excluding compensation for accrued but unused annual leave hours exceeding a calendar year allowance from the calculation of retirement benefits, following a California Supreme Court decision in a similar case (Alameda County Deputy Sheriff ’s Assn. v. Alameda County Employees’ Retirement Assn, 9 Cal.5th 1032 (2020), hereafter Alameda).

The California Superior Court granted VCERA’s request for a judicial declaration that its resolution was legal. Two County employee associations appealed this decision, arguing that the resolution was not mandated by Alameda or the relevant statutes. The California Court of Appeal affirmed the lower court's decision. The Court concluded that VCERA was required to comply with Alameda and the relevant statutes, which were designed to prevent pension spiking.

The Court focused on Government Code Section 31461(b) and PEPRA’s goal of eliminating pension spiking. Thus, the Court interpreted these to limit compensation earnable to reflect pay for work ordinarily performed during the course of a year. Thus, VCERA was required to comply with Section 31461(b) and Alameda and exclude compensation for unused leave that exceeded an employee’s calendar year allowances.

Ventura County Employees Retirement Ass’n v. Criminal Justice Attorneys Ass’n of Ventura County, 2024 Cal. App. Lexis 26.

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meyers-milias -brown act Union Missed Deadline To Request Factfinding.

Operating Engineers Local Union No. 3 (OE3) and the City of Stockton were bargaining over a successor MOU. On July 7, the City and OE3 jointly asked the Public Employment Relations Board’s (PERB) State Mediation and Conciliation Service (SMCS) to assign a mediator, but neither party declared an impasse at that time.

On July 31, the City sent OE3 a written declaration of impasse pursuant to the City’s local rules.

On September 14—exactly 45 days after the City’s July 31 written declaration of impasse—OE3 initiated a factfinding request. On September 19, the City opposed the request, claiming that OE3 failed to file it in a timely manner. On September 20, PERB’s Office of the General Counsel issued an administrative determination approving OE3’s request. The City appealed.

The Meyers-Milias-Brown Act (MMBA) provides two alternate deadlines for a union to request factfinding.

The employee organization may request a factfinding panel not sooner than 30 days, but not more than 45

days, following the selection of a mediator pursuant to the parties’ mediation process. If not submitted to mediation, an employee organization may request a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of impasse.

OE3 argued that it timely filed its request between 30- and 45-days following appointment or selection of a mediator.

OE3 argued that: a) appointment of a pre-impasse mediator does not trigger a right to request factfinding; b) the PERB therefore must disregard the July 7 appointment date, which predated the parties’ impasse; and c) the PERB should find that the mediator was constructively reappointed or reselected when the City declared impasse on July 31.

PERB held that there was not a sufficient basis for finding that July 31 qualified as a constructive reappointment date and rejected OE3’s interpretation. PERB adopted a more straightforward interpretation: the City’s July 31 impasse declaration created a 30-day filing window lasting through August 30. Because OE3 did not file its factfinding request within that window, OE3 waived its right to do so.

City of Stockton v. OE, PERB Order Ad-507-M (2023).

LCW Partner Melanie L. Chaney Named 2024 Leaders of Influence: Minority Attorneys.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

February 2024

Daily Journal awards Partner Brian Walter as 2024 "Leading National Litigators"

governmental Claims Court Blocks CDCR’s Early Exit From Personal Injury Case Against Peace Officer.

A public entity can be held liable for the conduct of its public employees if the public employee’s acts or omissions within the scope of employment proximately caused an injury to another. This principle is called respondeat superior and it is codified at Government Code Section 815.2 (a). The question of whether a public employee was acting within the scope of employment is ordinarily one of fact for the jury to determine. This case applies this principle to a peace officer.

Michael Becker was a Peace Officer for the California Department of Corrections and Rehabilitation (CDCR).

On his way to work very early one morning, Becker thought two individuals at a gas station were “looking suspicious”. Becker said some words were exchanged before the individuals drove away. Becker pursued the individuals on to the freeway, drove recklessly, and brandished a firearm at the two. Becker was driving his private car at the time.

An accident occurred at a freeway interchange. The car Becker was pursing caught on fire. One of the occupants of the car was able to self-extricate, however the other was incapacitated by catastrophic injuries and burns, and finally died over a year later. The survivor and the family of the deceased brought civil tort claims against Becker, and the CDCR. The trial court granted CDCR’s motion summary judgment, finding that Becker’s conduct did not occur within the scope of employment.

The California Court of Appeal reversed. The Court found that the conflicts and inferences in the evidence prevented the CDCR’s summary judgment motion.

For example, Becker’s primary duties at CDCR did not include typical law enforcement functions; he supervised prisoners who used knives for culinary duties. As another example, although Becker believed that his clothing made him recognizable as a CDCR Officer, the facts were disputed as to whether the two individuals knew Becker was wearing a uniform before the accident.

The Court denied CDCR’s motion for summary judgment because of these and other conflicting facts.

Adams v. Department of Corrections and Rehabilitation, 2024 Cal.App.Lexis 11.

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benefits

By: Stephanie J. Lowe

Employees Terminated For Data Theft Still Entitled To COBRA Coverage.

Deborah Johnson and Rodney Johnson were spouses and long-time employees of the City of Kewanee, Illinois.

Deborah was the Account and Finance Director and Rodney was the Public Works Operations Manager. In September 2020, the Johnsons provide notice of their intent to retire from the City in January 2021. Shortly after the retirement notice, the City accused Deborah of stealing data files that belonged to the City by taking or copying information from a City computer. When the City asked Deborah to collect her belongings and sent her home, Deborah removed a flash drive from her computer and took it with her. Thereafter, the City was unable to locate certain files on Deborah’s computer and retained an outside information technology specialist to investigate. The Johnsons eventually brought several flash drives to the police station. The flash drives contained approximately 55,000 files and included personally identifiable information of City residents and employees, such as social security numbers and bank account numbers. The Johnsons denied improperly taking any City files.

The City terminated both Johnsons in December 2020 and did not provide them with a notice of Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage. In March 2021, the Johnsons filed a complaint against the City alleging that it had failed to provide them with the COBRA notice.

Under the federal Public Health Services Act, governmental group health plans are required to provide qualified employees with the option to continue their health coverage when the employee experiences a qualifying event, such as termination of employment.

However, there is an exception for termination of employment for an employee’s gross misconduct. The City denied that it had any obligation to provide a COBRA notice in this situation because the Johnsons were terminated for gross misconduct for stealing City property. The City filed a motion for summary judgment.

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The Court found that the City did not provide sufficient evidence to prove the Johnson’s committed theft of the City’s data files, which would constitute “gross misconduct” under the COBRA standard. The Court assessed that none of the City’s witnesses had personal knowledge of what files were missing from Deborah’s computer or the City server.

The Court also wrote that even assuming arguendo that the Johnsons had taken the data files from the City and deleted them, the Court was not convinced that these actions would constitute gross misconduct as a matter of law. COBRA does not define “gross misconduct.”

Courts look to the ordinary meaning of the phrase, which is defined as outrageous, extreme, or unconscionable misconduct. The Johnsons denied committing criminal theft. Deborah claimed she was an authorized user of the data and had no intent to permanently depriving the City of any files. The Court stated that whether Deborah was authorized to access and use the files in the way she was alleged to have used them was a factual question.

The Court denied the City’s motion for summary judgment and found the City was not exempt from providing COBRA continuation coverage notice in this situation. The Court also found that the City presented no admissible evidence that would allow the City to impute any misconduct by Deborah to her husband Rodney.

Johnson v. City of Kewanee (2023) 2023 U.S.Dist. LEXIS 208408; 2023 WL 8091963.

Note: The decision to not provide a COBRA notice to a terminated employee should not be made lightly. The Court in Johnson cited cases that found gross misconduct where an intoxicated employee crashed an employer vehicle, another where an employee called a coworker a racial slur and also threw an apple toward her, and finally, where a supervisor beat his employee to the point that she required five days of hospitalization. While there is an exception where an employer does not need to provide a COBRA notice to an employee who has been terminated for gross misconduct, there is a very high standard for what actually constitutes gross misconduct. It is a higher standard than termination for cause.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

The Department Of Labor Proposes Rescinding The Association Health Plans Rule.

The U.S. Department of Labor (DOL) has proposed rescinding the Association Health Plans rule (AHP Rule) it created in 2018. The AHP Rule relates to multiple employer group health plans. The AHP Rule established criteria for determining when a group or association of employers is acting “indirectly in the interest of an employer” to constitute an a bona fide group or association for purposes of sponsoring a single, multiple employer group health plan covered by Employee Retirement Income Security Act (ERISA). The intent of the AHP Rule was to expand access for affordable health coverage for employees of small employers and certain self-employed individuals by lessening the restrictions to create an association health plan, which would be subject to the less regulated large group market.

Prior to the DOL’s proposal to rescind the AHP Rule, the AHP Rule had previously been set aside due to the lawsuit New York v. United States Department of Labor filed in the U.S. District Court for the District of Columbia. The District Court found the AHP Rule to be inconsistent with the ERISA’s intent to have employee benefits arise out of employment relationships since the AHP Rule extended the definition of “employer” to include non-employment relationships. For example, the definition included business owners who had no common-law employees but were members of an employer association.

February 2024

corner

2024 Standard Mileage Rate.

The updated standard mileage rate for the use of a car for business purposes is 67 cents per mile. This amount is 1.5 cents higher than the 2023 rate. The 67 cents per mile rate applies to all types of vehicles, including gasoline, diesel-powered, electric, and hybrid vehicles.

For more information, please see IRS Notice 2024-08.

ACA Compliance Question: Question: For the ACA reporting Form 1095-C, what is the difference between Code 1A and Code 1E on Line 14?

Answer: Codes 1A and 1E are similar and often get confused with each other. Code 1A reports that the applicable large employer has offered affordable minimum essential to the employee and their dependents using the federal poverty line safe harbor. Code 1E, while similar to Code 1A, is for applicable large employers to report an offer of minimum essential coverage to an employee and their dependents that can be affordable under any one of the three types of safe harbors. The three types of safe harbors are: (1) the federal poverty line safe harbor; (2) the rate of pay safe harbor, and (3) the Form W-2 safe harbor. While Code 1A specifically indicates the use of the federal poverty line safe harbor, any of the safe harbors may be used with Code 1E. Employers who use vendors to assist them with reporting should make sure that the vendor is reporting the correct code based on the affordability safe harbor the employer has selected.

The DOL is rescinding the AHP Rule because it is now of LCW BENEFITS BEST PRACTICES the view that the AHP Rule does not align with ERISA. Prior to a final decision about rescinding the AHP Rule, TIMELINE the DOL is taking public comments from interested parties until February 20, 2024.

Each month, LCW presents a monthly benefits timeline of best practices. This timeline is intended to apply Any small public agency employers who are providing to agencies that are applicable large employers for employees with health coverage through an associate Affordable Care Act purposes. health plan are advised to review the proposal to rescind the AHP Rule and assess any potential impact on its February health benefits.

• Prepare for the March 1, 2024 deadline to furnish Form 1095-C to employees.

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• Prepare for the April 1, 2024 deadline to e-file Forms 1094-C and 1095-C.

Did You Know?

• If agency would like an automatic 30-day extension to file Forms 1094-C and 1095-C, agency must submit Form 8809 on or before the due date of the returns.

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• A CalPERS contracting city that employs a CalPERs retired annuitants is prohibited from awarding the annuitant any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate, including paid sick leave and benefits such as life insurance.

• An employer who provides California Paid Sick Leave to an employee at a rate of one hour of sick leave for every 30 hours worked, does not also have to comply with alternative accrual method under that law that requires the employee receive three days or 24 hours of leave by the employee’s 120th day and five days or 40 hours by the employee’s 200th day.

• Employers may use a rolling 12-month method to calculate how much FMLA/ CFRA leave an employee is entitled to use. When calculating the rolling 12-month period, leave balances replenish as the one-year marker passes over previously used leave.

new to the Firm!

Lucy Goodnough is an Associate in the San Francisco office where she practices in labor and employment law matters.

Whitney Lauren Tolar is an Associate in the San Francisco office, specializing in labor and employment law matters.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions.

Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Question:

Our city has a question about pay dates. If our policy states that we will pay employees on specific dates, is it our legal obligation that they be paid on that day and no later?

Answer: Yes. The Fair Labor Standards Act (FLSA) obligates the city to pay employees at least their minimum wages in compliance with the regular pay day that the agency has established in policies and/or collective bargaining agreements. If overtime wages cannot be determined until sometime after the regular pay period, the employer can pay the overtime as soon as practicable, but generally no later than the next payday. (29 CFR section 778.106.)

Note that when the State of California failed to pay minimum wages on the established pay day, the Ninth Circuit found that the State violated the FLSA and owed liquidated damages. (Biggs v. Wilson, 1 F3d 1537 (9th Cir. 1993). State law regarding the time to pay employees does not apply to public employees. (See Labor Code section 220.)

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February 2024

Consortium Call Of The Month

On The Blog Navigating the Nuances of Self-Represented Plaintiffs By: Jackie Lee In the intricate landscape of legal disputes, pro se/pro per plaintiffs—individuals representing themselves without legal counsel—pose unique challenges for defendants. As a preliminary note, self-represented plaintiffs are referred to as “pro se” plaintiffs in federal court and “pro per” plaintiffs in state court. During the course of this post, the term “pro se plaintiffs” will be used to reference self-represented plaintiffs. Reports have shown that in California state courts, there has been a rise in the number of pro se litigants. In 2004, over 4.3 million users of the California court system were self-represented. While many of those cases were family law or unlawful detainer cases, 16% of general civil cases were filed by pro se plaintiffs. In federal courts, data shows that between 1999 and 2018, over 1,517,000 federal district court cases, or 28 percent of all cases filed, involved at least one pro se party. Amongst these cases, 91.2 percent of all pro se litigation involve pro se plaintiffs which amounts to 25.4 percent of total filings between 1999 and 2018. Moreover, 20 percent of employment civil rights cases involved at least one pro se party.

Generally, the federal courts have seen a consistent rate of pro se cases, between 1999 and 2019. As seen from the statistics, pro se plaintiffs, while not as prevalent in the employment space, are still more prevalent than one would expect. Accordingly, understanding the unique dynamics of such cases and being equipped with strategic approaches are vital.

It Is a Mistake to Discount the Pro Se Plaintiff It may be easy to treat cases with pro se plaintiffs dismissively because the common assumption is they lack legal skills and are easier to litigate against. This is a misguided assumption. Pro se plaintiffs provide an interesting dynamic in that what they lack in legal knowledge is juxtaposed by increased leniency from judges in both federal and state courts. Despite the general duty of California courts to treat a person representing himself the same as though he were represented by counsel (Monastero v. Los Angeles Transit Company (1955) 131 Cal.App.2d 156, 160-61), judicial preference in pro se cases can be to resolve matters based on merit rather than dismiss due to procedural defaults. This typically manifests in California courts, among other acts of leniency, liberally construing documents filed by pro se plaintiffs, liberally allowing amendments to pleadings, and explaining different procedures to them during the course of litigation. Federal courts take a similar approach in how they treat pro se plaintiffs. (See Haines v. Kerner (1972) 404 U.S. 519, 521 (per curium) (pro se complaints are held to “less stringent” standards than those drafted by attorneys).) Therefore, while filing motions to dismiss in federal court and demurrers in state court is a great way to attack the pleadings of pro se plaintiffs, courts may be inclined to deny such motions much more readily than if the pleadings had been prepared and filed by experienced counsel.

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February 2024

Moreover, many pro se litigants may be much more knowledgeable than anticipated. Pro se plaintiffs may have legal backgrounds or even have assistance behind the scenes from family and friends who have legal backgrounds.

Additionally, cases with pro se plaintiffs often require more time and money than cases in which plaintiffs are represented by counsel because a large part of the battle is deciphering the various pleadings and motions that a pro se plaintiff may file. Pro se plaintiffs’ lack of knowledge regarding procedural elements may also cause hiccups along the road, which leads to more time and money spent to figure out how to address these hiccups.

Thus, it is important to treat pro se plaintiffs very much as seriously as plaintiffs represented by counsel.

Provide Help to the Court via Briefing As difficult as it may be for defendants to ascertain pro se plaintiffs’ arguments, it is equally as difficult for the courts. Therefore, defendants should seek to provide courts with motions and briefing that clearly outline the facts, provide robust analysis of the legal issues, and even anticipate or interpret plaintiffs’ arguments. By providing the courts with briefing of this type, defendants provide courts with a good outline of the law that relieves courts from having to do their own research. Moreover, briefing that is complete, clear, and concise has the added benefit of providing courts with more incentive to use that briefing as the basis for their orders. In the context of litigating against pro se plaintiffs, briefing is more important than ever.

Approach Informal Settlement Talks Cautiously Early resolution is appealing, especially if it means getting rid of a case with a pro se plaintiff that may take much more time and money than a case in which counsel represents the plaintiff. While some pro se plaintiffs may be open to early resolution, it is important to understand the risks that come with informally negotiating settlement with a pro se plaintiff before jumping in headfirst.

Pro se plaintiffs are not bound by the professional code of conduct that binds attorneys. Therefore, for example, while attorneys are bound by the professional codes of conduct that prohibit misrepresentations, pro se plaintiffs may make misrepresentations during the course of settlement talks to your detriment. Pro se plaintiffs may also agree to settlement terms and then back track afterwards to get better terms.

If a settlement is reached, it is important to take care to craft a thorough settlement agreement to avoid any attempts of pro se plaintiffs reneging as to agreed terms. It may be worthwhile to consider having a witness for the execution of the settlement agreement and any other precautions to document the events surrounding the execution of the settlement agreement.

Use Mediation and Other Alternative Dispute Resolution Solutions While defendants should cautiously approach informal settlement talks, mediation, settlement conferences, and other alternative dispute resolution solutions may lead to a positive result. When a neutral party is involved in facilitating settlement discussions, defendants may be able to achieve much more than if they were themselves to approach pro se plaintiffs informally. Moreover, the neutral party may help provide more perspective to pro se plaintiffs and manage those plaintiffs’ expectations.

In conclusion, the landscape of pro se litigation requires a serious and strategic mindset. Defendants must acknowledge the challenges posed by pro se plaintiffs and adopt tailored strategies to navigate these legal complexities effectively. By doing so, defendants not only safeguard their interests but also contribute to the efficient and equitable resolution of legal disputes.

View the full blog here.

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