Posted on January 14, 2024

Pro Se Litigants And Sanctions In An Illinois Divorce

Divorce lawyers are expensive. Divorce lawyers are expensive because the stakes are so high that expertise in the substantive law and those laws’ procedures are necessary in order to get a favorable outcome. The alternative is to receive orders from a judge who only considers the other side’s evidence and arguments.

Still, some people proceed in divorce court without a lawyer. This legal self-representation is referred to as being “pro se.”

Pro se means “for oneself; on one’s own behalf; without a lawyer” Black’s Law Dictionary (11th ed. 2019)

Abraham Lincoln is quoted as saying “The man who represents himself in court has a fool for a client.”

I think Abe was being unfair. The vast majority of pro se litigants I have encountered have forgone an attorney’s representation due to financial reasons. Still, an Illinois divorce court imposes extreme burdens that can be described as “foolish” to confront without a lawyer.

Pro se litigants must follow all of the same rules that lawyers follow.

“A pro se litigant such as plaintiff here is not entitled to more lenient treatment than attorneys. In Illinois, parties choosing to represent themselves without a lawyer must comply with the same rules and are held to the same standards as licensed attorneys” Holzrichter v. Yorath, 987 NE 2d 1 – Ill: Appellate Court, 1st Dist., 1st Div. 2013

Pro se litigants are expected to know all the rules that lawyers know (I can’t stress what a herculean task this is. I have written 600+ articles about the rules…and I’m still not done).

“Further, we note that pro se litigants are presumed to have full knowledge of applicable court rules and procedures and must comply with the same rules and procedures as would be required of litigants represented by attorneys.” In re Estate of Pellico, 916 NE 2d 45 – Ill: Appellate Court, 2nd Dist. 2009

“The fact that a party appears pro se does not relieve that party from complying as nearly as possible to the Illinois Supreme Court Rules for practice before this court” Voris v. Voris, 961 NE 2d 475 – Ill: Appellate Court, 1st Dist., 2nd Div. 2011

Pro se litigants must even follow the same code of conduct that lawyers swear an oath to follow.

“[A] party who chooses to represent himself, is therefore subject to [The Rules of Professional Conduct]” Zemater v. Village of Waterman, 157 NE 3d 1069 – Ill: Appellate Court, 2nd Dist. 2020

If a pro se litigant makes an error, the pro se litigant may be subject to sanctions.

“A pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.” Gillard v. Northwestern Memorial Hosp., 143 NE 3d 213 – Ill: Appellate Court, 1st Dist., 6th Div. 2019

Most sanctionable behavior stems from pleadings and motions that are inaccurate.

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137(a)

Pro se litigants must sign their own motions and pleadings verifying the accuracy of the documents contents.

“A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address.”  Ill. Sup. Ct. R. 137(a)

If the document is found to be inaccurate and signed, the pro se signer will face sanctions. These sanctions are almost always in the form of reimbursing the other side’s attorney’s fees…when the whole point of being pro se is to avoid attorney’s fees.

“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137

There could be additional fines beyond attorney’s fees when a court imposes a Rule 137 sanction.

“The plain language of Rule 137 demonstrates that attorney fees are just one type of monetary sanction a circuit court, in its discretion, can impose.” Eisterhold v. Gizewski, 2022 IL App (1st) 210490

Rule 137 only applies to the actual written motions and pleadings. Pro se litigants usually get into trouble for other issues that can be sanctioned via 750 ILCS 5/508(b)(to be discussed later)

For a 137 sanction, an Illinois court should “tak[e] into consideration only those matters for which a sanction might be imposed under the rule, namely, pleadings, motions, or other documents not
well grounded in fact and warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law or that have been interposed for an improper purpose”.
In re Parentage of A.H., 2023 IL App (1st) 190572

Pro se litigants must not think that having an attorney “review their pleadings” will save them from sanctions.

“An attorney may assist a self-represented person in drafting or reviewing a pleading, motion, or other document without making a general or limited scope appearance. Such assistance does not constitute either a general or limited scope appearance by the attorney. The self-represented person shall sign the pleading, motion, or other paper. An attorney providing drafting or reviewing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false.” Ill. Sup. Ct. R. 137

Perfect accuracy regarding the law is not required, however, when drafting a pleading or a motion. Courts look to the substance of the motion when interpreting what a pro se party is requesting of the court.

“[A] trial court does have the authority to construe a [party’s] pro se petition as a [whatever]  petition [they were trying to write]… it is a motion’s substance, not its title, that controls its identity.” People v. Johnson, 816 NE 2d 636 – Ill: Appellate Court, 1st Dist., 1st Div. 2004

Despite Rule 137’s strict language and all the case law that says there is no distinction between a pro se litigant and a licensed lawyer’s duties, Illinois divorce courts should grant leeway regarding a pro se litigant’s written work.

“[A] pro se litigant should be granted more leeway in misstatements or inaccuracies of pleading, proof, or legal interpretation than in other cases.” Mentzer v. Dudley, 602 NE 2d 934 – Ill: Appellate Court, 4th Dist. 1992

But, “when sufficiently egregious circumstances exist, sanctions can properly be imposed upon a pro se…litigant.” Wittekind v. Rusk, 625 NE 2d 427 – Ill: Appellate Court, 3rd Dist. 1993

The distinction between a pro se litigant’s forgivable incompetence and their sanctionable conduct can be found in the purpose of the pro se litigant’s filing.

“We can give a pro se small claims litigant some leeway in presenting a claim which appears unreasonable, but when such a claimant engages in the harassment involved here, he must suffer the consequences.” Mentzer v. Dudley, 602 NE 2d 934 – Ill: Appellate Court, 4th Dist. 1992

Despite all of these sanctions against pro se litigants filing motions they don’t understand, the threat of a sanction can create additional leeway for the pro se litigant’s procedural errors.

The Illinois Supreme Court stated that “although pro se litigants are presumed to know the procedural rules, when, as here, a trial court threatens sanctions for the filing of motions, such a litigant must be given considerable leeway in meeting procedural requirements.” Steinbrecher v. Steinbrecher, 759 NE 2d 509 – Ill: Supreme Court 2001

In addition to a pro se litigant’s duty to verify their pleadings, pro se litigants must also follow the the myriad discovery rules or face penalties.

Discovery sanctions can include financial penalties (always attorney’s fees)

“If the court finds that the refusal or failure [to properly answer discovery] was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219

Discovery sanctions can also include, effectively, throwing out your entire case.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any…of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(i) That further proceedings be stayed until the order or rule is complied with;
(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) That a witness be barred from testifying concerning that issue;
(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party’s action be dismissed with or without prejudice;
(vi) That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue” Ill. Sup. Ct. R. 219

Beyond signing inaccurate motions and pleadings, and failing to properly participate in discovery, court conduct can also be sanctionable if the court action is “improper.”

“If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(b)

If you are not a lawyer, it is difficult to distinguish what is “proper” and “improper” court conduct.

Proper court conduct is a delicate balance. Pro se litigants should be expected to be passionate. This is their life after all. Still, courts have only so much patience for passion (which we call zealotry).

“We constantly remind attorneys that they should maintain civility even though they must act as zealous advocates. Zealous advocacy, however, must not deteriorate into zealotry, regardless of whether the advocate is a lawyer or a self-represented litigant.” Parkway Bank and Trust Co. v. Korzen, 2 NE 3d 1052 – Ill: Appellate Court, 1st Dist., 1st Div. 2013

Sanctions Against Pro Se Litigants Who File Appeals

After having a terrible time in a circuit court as a pro se litigant, some pro se litigants double down and file their own appeal.

Appellate courts have a whole additional layer of laws and rules that must be observed.

“Pro se litigants are not excused from following rules that dictate the form and content of appellate briefs.” Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303

The appellate court is going to want to see real legal research

“[A] court of review is entitled to have the issues on appeal clearly defined with pertinent authority cited and reasoned, cohesive legal argument.” Cwik v. Giannoulias, 237 Ill. 2d 409, 423 (2010)

“[A] reviewing court is not simply a depository into which a party may dump the burden of argument and research.” People ex rel. Department of Labor v. E.R.H. Enterprises, 2013 IL 115106

Failure to obserbe the appellate court’s rules will, again, result in sanctions.

“If after reasonable notice and an opportunity to respond, a party or an attorney for a party or parties is determined to have wilfully failed to comply with the appeal rules, appropriate sanctions may be imposed upon such a party or attorney for the failure to comply with these rules. Appropriate sanctions for violations of this section may include an order that a party be barred from presenting a claim or defense relating to any issue to which refusal or failure to comply with the rules relates, or that judgment be entered on that issue as to the other party, or that a dismissal of a party’s appeal as to that issue be entered, or that any portion of a party’s brief relating to that issue be stricken. Additionally, sanctions involving an order to pay a fine, where appropriate, may also be ordered against any party or attorney for a party or parties.” Ill. Sup. Ct. R. 375(a)

Even if the rules are followed, if the appeal is made in bad faith, sanctions will follow.

“If, after consideration of an appeal or other action pursued in a reviewing court, it is determined that the appeal or other action itself is frivolous, or that an appeal or other action was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting or defending the appeal or other action is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties.” Ill. Sup. Ct. R. 375(b)

Bad faith appeals are those appeals that have no basis in law and whose purpose is to “delay, harass or cause needless expense

“An appeal or other action will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. An appeal or other action will be deemed to have been taken or prosecuted for an improper purpose where the primary purpose of the appeal or other action is to delay, harass, or cause needless expense.” Ill. Sup. Ct. R. 375(b)

Illinois appellate courts can impose sanctions at the request of the other party or on the court’s own motion.

“A reviewing court may impose a sanction upon a party or an attorney for a party upon the motion of another party or parties, or on the reviewing court’s own initiative where the court deems it appropriate. If the reviewing court initiates the sanction, it shall require the party or attorney, or both, to show cause why such a sanction should not be imposed before imposing the sanction. Where a sanction is imposed, the reviewing court will set forth the reasons and basis for the sanction in its opinion or in a separate written order.” Ill. Sup. Ct. R. 375(b)

Sanctions will be in the form of paying the other side’s attorney’s fees. If the pro se litigant was trying to avoid attorney’s fees, their sanctionable behavior will cause them to do exactly that!

“Appropriate sanctions for violation of this section may include an order to pay to the other party or parties damages, the reasonable costs of the appeal or other action, and any other expenses necessarily incurred by the filing of the appeal or other action, including reasonable attorney fees.”  Ill. Sup. Ct. R. 375

Appellate judges are always former trial judges. Appellate courts, typically, do not hand out punishments like trial courts do. Sanctioning litigants is the appellate judge’s one chance to punish again.

“The purpose of Rule 375(b) is to condemn and punish the abusive conduct of litigants and their attorneys who appear before us.” Sterling Homes, Ltd. v. Rasberry, 759 NE 2d 163 – Ill: Appellate Court, 2nd Dist. 2001

Illinois courts acknowledge that pro se litigants are at a disadvantage when charged with following their multitude of rules, but an Illinois appellate court can still punish a pro se litigant for not following those rules.

“Although this court is especially solicitous of self-represented parties who do not display punctilious compliance with our rules, we will order sanctions against pro se litigants under sufficiently egregious circumstances.” Gillard v. Northwestern Memorial Hosp., 143 NE 3d 213 – Ill: Appellate Court, 1st Dist., 6th Div. 2019

Despite these threats of punishment, appellate courts will generally give pro se litigants the benefit of the doubt so long as the pro se litigant’s intentions are relatively noble.

An appellate court’s “jurisdiction to entertain the appeal of a pro se plaintiff is unaffected by the insufficiency of his brief, so long as [the appellate court] understand the issue plaintiff intends to raise and especially where the court has the benefit of a cogent brief of the other party.” Twardowski v. Holiday Hospitality Franchising, Inc., 748 NE 2d 222 – Ill: Appellate Court, 1st Dist., 1st Div. 2001

Accidents happen! Especially to pro se litigants filing their first appeal. Appellate courts can look past errors (but they don’t have to). Harrassment is to be distinguished from clerical errors which pro se litigants are expected to make. For example, an appeals court will “treat the incorrect numerical designation on the notice of appeal as a clerical error and proceed as if the defendant had stated the correct cause number.” People v. Bennett, 494 NE 2d 847 – Ill: Appellate Court, 4th Dist. 1986

I rarely file appeals so I cannot imagine the confidence or, more likely, desperation of a pro se litigant filing an appeal.

Again, pro se litigants almost invariably represent themselves because they cannot afford to hire a lawyer. Pro se litigants almost inevitably engage in sanctionable behavior which results in the pro se litigant paying the other side’s attorney. This becomes a farce that amuses no one…especially the judge.

If you are facing a pro se litigant or you are a pro se litigant who is ready to be properly represented, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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