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Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning "for oneself". This status is sometimes known as propria persona (abbreviated to "pro per"). In England and Wales the comparable status is "litigant in person". In the United States, many state court systems and the federal courts are experiencing an increasing proportion of pro se litigants.[1] In the United States federal court system for the year 2007 approximately 27% of actions filed, 92% of prisoner petitions and 10% of non-prisoner petitions were filed by pro se litigants.[2]

Contents

History

The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution.

The Supreme Court noted that "[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'" Faretta v. California, 422 U.S. 806, 813 (1975).

Rules

Most U.S. states have a constitutional provision that either expressly or by interpretation allows individuals to represent their own causes in the courts of that state.[citation needed] In many instances, state constitutional provisions regarding the right to petition the government for redress of grievances have been so interpreted. See List of U.S. State constitutional provisions allowing self-representation in state courts.

The U.S. Judiciary Act, the Code of Conduct for United States Judges, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence and the Federal Rules of Appellate Procedure address the rights of the self-represented litigant in several places.

Section 1654 of title 28 of the United States Code provides: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

Laws and organizations charged with regulating judicial conduct may also impact pro se litigants. For example, The State of California Judicial Counsel has addressed through published materials the need of the Judiciary to act in the interests of fairness to self-represented litigants.[3] The California rules express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertance by a pro se litigant that would otherwise result in a dismissal. The Judicial Counsel justifies this position based on the idea that "Judges are charged with ascertaining the truth, not just playing referee... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits."[4] It suggests "the court should take whatever measures may be reasonable and necessary to insure a fair trial" and says "There is only one reported case in the U.S. finding a judge's specific accommodations have gone too far".

Public concerns

Pro se representation presents unique but not insurmountable challenges for claimants and the legal system. In Louisiana, for instance, the Louisiana Court of Appeals tracks the results of pro se appeals versus represented appeals. In 2000, 7% of writs in civil litigation submitted to the court pro se were granted, compared to 46% of writs submitted by counsel. In criminal cases the ratio is closer - 34% of pro se writs were granted versus 45% of writs submitted by counsel.[5] According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law,:

“After conducting an empirical study of pro se felony defendants, I conclude that these defendants are not necessarily either ill-served by the decision to represent themselves or mentally ill….In state court, pro se defendants charged with felonies fared as well as, and arguably significantly better than, their represented counterparts…of the 234 pro se defendants for whom an outcome was provided, just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge…. Only 26 percent of the pro se defendants ended up with felony convictions, while 63 percent of their represented counterparts were convicted of felonies…in federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants. ” [6]

Self-representation by attorneys

An attorney who represents himself or herself in a matter is still considered a pro se litigant. Self-representation by attorneys has frequently been the subject of criticism, disapproval, or satire, with the most famous pronouncement on the issue being Samuel Johnson's aphorism that "the attorney who represents himself in court has a fool for a client."

The Supreme Court has held that where a statute permits attorney's fees to be awarded to the prevailing party, the attorney who prevails in a case brought under a federal statute as a pro se litigant is not entitled to an award of attorney's fees.[7] This ruling was based on the Court's determination that such statutes contemplate an attorney-client relationship between the party and the attorney prosecuting or defending the case, and that Congress intends to encourage litigants to seek the advise of a competent and detached third party. As the Court noted, the various Circuit Courts had previously agreed in various rulings "that a pro se litigant who is not a lawyer is not entitled to attorney's fees".[8]

Narrow exceptions to this principle have also been suggested by other courts in the United States. For example, according to one district court a pro se attorney may collect attorney's fees when he represents a class (of which he is a member) in a class action lawsuit,[9] or according to another court represents a law firm of which he is a member.[10] In each of those instances, a non-attorney would be barred from conducting the representation altogether. One district court found that this policy does not prevent a pro se attorney from recovering fees paid for consultations with outside counsel.[11]

Limits

In some situations, self-represented appearances are not allowed. Generally, an owner can represent a solely owned business or partnership, but only a licensed attorney can represent a corporation. The ability of a party to proceed without an attorney in prosecuting or defending a civil action is largely a matter of state law, and may vary depending on the court and the positions of the parties. A longstanding and widely practiced rule prohibits corporations from being represented by non-attorneys, consistent with the existence of a corporation as a "person" separate and distinct from its officers and employees.[12]

"A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term “any suitor.”[13][14][15]

Another situation in which appearance through counsel is often required is in a case involving the executor or personal administrator of a probate estate. Unless the executor or administrator is himself an attorney, he is not allowed to represent himself in matters other than the probate.[16]

Few federal court of appeals allow unrepresented litigants to argue, and in all courts the percentage of cases in which argument occurs is higher for counseled cases.[17]

Notable pro se litigants

  • Edward C. Lawson, an African American civil rights activist, was the pro se defendant in Kolender v. Lawson (461 U.S. 352, 1983), in which the U.S. Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.[18][19][20][21]
  • Robert Kearns was the inventor of the intermittent windshield wipers. He acted as his own lawyer in parts of his long legal battles for patent infringement against Ford and Chrysler.[22] His legal battles are the subject of the 2008 film Flash of Genius.
  • Clarence Earl Gideon was too poor to afford an attorney and thus proceeded pro se in his criminal trial in Florida in 1961. He was found guilty and subsequently appealed. He was appointed counsel when the case reached the U.S. Supreme Court; the Court ruled in Gideon v. Wainwright that the right to counsel means that states are required to provide counsel free of charge to indigent criminal defendants and that Florida's failure to appoint such counsel in Gideon's case constituted a violation of that right. On remand, Gideon was represented in the new trial, and was acquitted.
  • Brandon Moon spent 17 years in jail for a rape that he did not commit. He was convicted after being picked from a lineup 18 months after the rape in which he was the only blue eyed white man. He was a sophomore in college and a veteran of four years in the air force when he was accused. He was released due to DNA evidence after help from the Innocence Project. He spent his prison years learning about blood tests, eye witness identification and law. Before the Innocence Project became involved, Moon represented himself and repeatedly applied for relief but, according to his lawyer he was "bounced around the courts like a Ping-Pong ball" because "The courts are so hostile to pro se litigants. The instinct is to deny, deny, deny."[23]
  • Thomas Van Orden, a lawyer with a suspended license to practice law who was living homeless in Austin, Texas, managed to challenge a religious display on the state capitol grounds, and successfully navigated his case all the way to the Supreme Court. While he was ultimately unsuccessful at getting the display removed, he was extremely successful at litigating the case. See Van Orden v. Perry.[24][25][26]
  • Anthony Pellicano, a Los Angeles-based private investigator known for working with high-profile entertainment industry attorneys, represented himself in federal district court after being indicted on numerous counts of criminal conspiracy and wiretapping charges. He fired his attorneys prior to trial. He was convicted on all but one count. He also faced a second trial along with co-defendant Terry Christiansen. He again represented himself and again was convicted on numerous counts.
  • Michael Ray "a former paralegal who is nearing the end of a six-year sentence for real-estate fraud, has no college or law school education. Yet he drafted an appeal for pro-se litigant Keith Lavon Burgess, who is in prison for crack possession. Ray argued that a 20-year mandatory minimum sentence was inappropriate for Burgess because his prior drug conviction was a misdemeanor, not a felony. Against all odds, the U.S. Supreme Court agreed to hear the case, which will be argued by Stanford Law School Professor Jeff Fisher. A successful appeal could reportedly cut Burgess's sentence in half...Ray... conducts his own CLE by reading legal journals and joining legal associations, including the ABA."[27]
  • Barbara Schwarz, of Salt Lake City, Utah, has filed a large number of Freedom of Information Act (FOIA) requests. When the responses failed to verify her claims, she responded with litigation, which she has done pro se. According to the Salt Lake Tribune, "at least one of Schwarz's lawsuits has been considered by a U.S. District or U.S. Circuit Court of Appeals somewhere in the nation every year since 1993."[28]
  • Jim Traficant, a former U.S. Representative from Ohio, represented himself in a Racketeer Influenced and Corrupt Organizations Act case in 1983, and was acquitted of all charges. Traficant would represent himself again in 2002, this time unsuccessfully, and was sentenced to prison for 8 years for taking bribes, filing false tax returns, and racketeering.[29][30][31]
  • Joe Gamsky, also known as Joe Hunt, successfully represented himself in a kidnapping-murder trial. He had been accused of murdering a businessman in order to use his fortunes to pay off debts Gamsky had accumulated in a Ponzi scheme. The jury hung 8-4 in favor of acquittal. Although he wasn't convicted of that murder, he was previously convicted in the murder of a con artist and is serving life imprisonment without parole.
  • Lenny Bruce represented himself in a number of his obscenity trials, including the Chicago Gate of Horn case, People v. Bruce.
  • Notorious serial murderer and former law student Ted Bundy represented himself during his 1979 murder trial. Bundy was convicted, and ultimately executed, as a result of that case.

Resources

Self-represented litigants may turn to "self-help" assistance. These tend to come from three sources: local courts, which may offer limited self-help assistance [32]; public interest groups, such as the American Bar Association, which sponsors reform and promotes resources for self-help, and commercial services, which sell pre-made forms allowing self-represented parties to have formally correct documents. For example, SelfHelpSupport.org is an organization with a web site "dedicated to issues related to self-represented litigation". The organization provides no assistance with particular complaints.[33]. "Self-help" legal service providers must take care not to cross the line into giving advice, in order to avoid "unauthorized practice of law," which in the U.S. is the unlawful act of a non lawyer practicing law. See [34].

The American Bar Association (ABA) has also been involved with issues related to self-representation.[35] The ABA has awarded a grant in 2008 to the Chicago-Kent College of Law Center for Access to Justice & Technology for making justice more accessible to the public through the use of the Internet in teaching, legal practice and public access to the law. Their A2J Author Project is a software tool that empowers those from the courts, legal services programs and educational institutions to create guided interviews resulting in document assembly, electronic filing and data collection. Viewers using A2J to go through a guided interview are led down a virtual pathway to the courthouse. As they answer simple questions about their legal issue, the technology then “translates” the answers to create, or assemble, the documents that are needed for filing with the court.[36]

An ABA publication lists "organizations involved in pro se issues" as including (in addition to the ABA itself) the American Judicature Society, the National Center for State Courts, and the State Justice Institute.[35]

States have organizations dedicated to delivering services to pro se litigants. For instance, the Minnesota Bar Association has a "pro se implementation committee".[37]

References

  1. ^ Madelynn Herman (September 25, 2006). "Self-Representation: Pro Se Statistics". National Center for State Courts. http://www.ncsconline.org/wc/publications/memos/prosestatsmemo.htm. 
  2. ^ Table S-23. Civil Pro Se And Non-Pro Se Filings, by District, During the 12-Month Period Ending September 30, 2007 /http://www.uscourts.gov/judbus2007/tables/S23Sep07.pdf
  3. ^ John Greacen, Greacen Associates LLC "Ethical Issues for Judges in Handling Cases with Self-Represented Litigants" http://www.courtinfo.ca.gov/programs/equalaccess/documents/selfrep07/Ethical/May_07_Ethical_Issues.ppt.
  4. ^ Ibid (quoting Gamet v. Blanchard).
  5. ^ Statistical Overview P. 5. http://www.lasc.org/press_room/annual_reports/reports/2000stats.pdf
  6. ^ “Defending the Right to Self-Representation: An Empirical Look at the Pro Se Felony Defendant by Erica J. Hashimoto, University of Georgia School of Law 2006 http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1000&context=fac_artchop”
  7. ^ Kay v. Ehrler, 499 U.S. 432 (1991).
  8. ^ Kay v. Ehrler, 499 U.S. 432, 435 (1991), citing Gonzalez v. Kangas, 814 F. 2d 1411 (9th Cir. 1987); Smith v. DeBartoli, 769 F. 2d 451, 453 (7th Cir. 1985), cert. denied, 475 U.S. 1067 (1986); Turman v. Tuttle, 711 F. 2d 148 (10th Cir. 1983) (per curiam); Owens-El v. Robinson, 694 F. 2d 941 (3d Cir. 1982); Wright v. Crowell, 674 F. 2d 521 (6th Cir. 1982) (per curiam); Cofield v. Atlanta, 648 F. 2d 986, 987-988 (5th Cir. 1981); Lovell v. Snow, 637 F. 2d 170 (1st Cir. 1981); Davis v. Parratt, 608 F. 2d 717 (8th Cir. 1979) (per curiam).
  9. ^ Krislov v. Rednour, 97 F. Supp. 2d 862, 867 (N.D. Ill. 2000)
  10. ^ Bond v. Blum, 317 F.3d 385, (4th Cir. 2003).
  11. ^ Blazy v. Tenet, 338 U.S. App. D.C. 300 (D.C. Cir. 1999).
  12. ^ Jonathan R. Macey, Macey on Corporation Laws (2000 supplement), §4.02[D] (b), "Appearance pro se.
  13. ^ Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (Wis. 1997)
  14. ^ Rights of suitors. § 21(2) [As amended April 1977]
  15. ^ Wisconsin Annotated Constitution
  16. ^ 2 Weil & Brown s. 130 (California law)
  17. ^ Case Management Procedures in the Federal Court of Appeals, p. 10, http://www.fjc.gov/public/pdf.nsf/lookup/caseman1.pdf/$file/caseman1.pdf'
  18. ^ Edward C. Lawson -- official website
  19. ^ Kolender v. Lawson, 461 U.S. 352 (1983)
  20. ^ 1921 Tulsa Race Riot -- CNN
  21. ^ 1921 Tulsa Race Riot -- OSU Library
  22. ^ Robert Kearns, 77, Inventor of Intermittent Wipers, Dies, Associated Press, New York Times, 2/26/05 http://www.nytimes.com/2005/02/26/obituaries/26kearns.html
  23. ^ Barbara Novovitch, free after 17 years for a rape that he did not commit, New York Times, 12/22/2004
  24. ^ Supreme Court on a Shoestring, The Washington Post, February 21, 2005
  25. ^ From the streets to the Supreme Court, The Houston Chronicle Oct. 17, 2004 (article mirrored at www.godlesshouston.com)
  26. ^ U.S. Supreme Court docket for 03-1500 Van Orden v. Perry
  27. ^ Law Blog Jailhouse Lawyer of the Day: Michael Ray Wall Street Journal article 2/2/2008
  28. ^ Smith, Christopher. S.L. Woman's Quest Strains Public Records System, The Salt Lake Tribune, May 11, 2003.
  29. ^ Traficant guilty of bribery, racketeering, CNN, April 12, 2002.
  30. ^ http://www.tnr.com/blog/theplank?pid=5782
  31. ^ The Smoking Gun: Archive
  32. ^ See, e.g. Superior Court of California - County of Los Angeles [1] with various self-help links.
  33. ^ http://www.selfhelpsupport.org/
  34. ^ [2]
  35. ^ a b Patricia A. Garcia, "Litigants without Lawyers" "Organizations Involved in pro se issues" Resources, American Bar Association, 2002, ISBN 1-59031-061-6, p. 26
  36. ^ http://www.abanet.org/legalservices/delivery/brown.html#kent
  37. ^ http://www2.mnbar.org/committees/pro-se/minutes.htm
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