Pro se legal representation in the United States

"pro per" redirects here. For the abbreviation indicating a document is signed on someone else's behalf, see procuration.

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 himself". This status is sometimes known as "propria persona" or "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.

History

The opportunity for a party to a legal action to represent his or her own cause has had a longstanding presence in the United States. In Faretta v. California, the United States Supreme Court relates 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'. This statute and the Bill of Rights were considered necessary in order to get support for the new Constitution. The Right of Self-Representation was one of the first laws passed after the War of Independence because it was of concern to the people.

In 1797 Thomas Paine, a celebrated American Statesman and advocate for civil rights, acknowledged the rights of access to court by every man. Paine said

"either party...has a natural right to plead his own case, this right is consistent with safety, therefore, it is retained, but the parties may not be able...therefore the civil right to pleading by proxy, that is, by counsel, is an appendage to the natural right of self-representation."

In 1816, Thomas Jefferson, the third president of the United States, acknowledged in writing both the right of self-representation and the corollary right to control an attorney representative:

“We of the United States think experience has proved that it is safer for the mass of individuals composing society to reserve to themselves personally the exercise of all rightful powers to which they are competent. Hence, with us, people being competent to judge of the facts occurring in ordinary life have retained the functions of judges of facts under the name of jurors. I believe that action by the citizens in person, in affairs within their reach and competence, and in all others by representatives chosen immediately and removable by themselves is the essence of a Republic.”

The United States Supreme Court again acknowledged the rights of access to courts in the written record that the "The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights and lies at the foundation of an orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution"

A few years later, the United States Supreme Court again unanimously included in the written record of a partial list of fundamental privileges 'the right of a citizen of one state ... to institute and maintain actions of any kind in the courts of' another. There is little disagreement that individuals have a right, rooted in the U.S. Constitution, to represent themselves in a court of law."

in Ward v. Maryland, 12 Wall. 418-430, 20 L. ed. 449-452, the court, after referring to Corfield v. Coryell, above cited, and speaking by Mr. Justice Clifford, stated that the right 'to maintain actions in the courts of the state' was fundamental,

In 1985, a court in the capital of the United States acknowledged in the written record the right of every man, including strangers, to appear and to file papers: "'One of the basic principles, one of the glories, of the American system of justice is that the courthouse door is open to everyone--the humblest citizen, the indigent, the convicted felon, the illegal alien...That principle of access to the courts consists not merely of the right to file a complaint but it includes the right to file other papers, including motions apprising the court of possible changes in the facts, the law, or the position of the litigant."

Status

The Federal Rules of Appellate Procedure specifically allow court mediation services to be provided to self-represented litigants: "Rule 33. Appeal Conferences The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement.”

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. In many instances, state constitutional provisions regarding the right to petition the government for redress of grievances have been so interpreted. For instance, the State of Massachusetts uses general references to remedy in its constitution, and a list of Frequently Asked Questions published by the Massachusetts Court System states unequivocally "You have a right to represent yourself in court in a civil case". See List of U.S. State constitutional provisions allowing self-representation in state courts.

Pro se representation presents unique but not insurmountable challenges for claimants and the legal system. The State of Massachusetts advises that some things to consider in deciding whether or not to represent oneself include ability to complete forms such as income tax, ability to meet deadlines, comfort in public speaking, availability of written documents and witnesses, availability of time for researching "law, procedures and rules", and whether the other side has a lawyer. 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. 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. ”

Private organizations involved with issues related to self-represented litigation

SelfHelpSupport.org is a an organization with a web site "dedicated to issues related to self-represented litigation". It provides no assistance with particular complaints. It reports having has over 2000 materials in its virtual library, several groups or listservs, a monthly newsletter, and "webinars".

The American Bar Association (ABA) has also been involved with issues related to self-representation. 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 unique 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 lead down a virtual pathway to the courthouse. As they answer simply 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.

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.

Constitutional and statutory citations to self-represented litigants

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."

Section 452 of title 28 provides: "All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders."

The Code of Conduct for United States Judges provides:

This Code applies to United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the "Compliance" section. In addition, the Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code...Canon III A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY A. Adjudicative Responsibilities....(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings. (3) A judge should be patient, dignified, respectful, and courteous to litigants...(4) A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law...(5) A judge should dispose promptly of the business of the court.... B. Administrative Responsibilities....(2) A judge should require court officials, staff, and others subject to the judge's direction and control, to observe the same standards of fidelity and diligence applicable to the judge....Canon 3A(5). In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay..."

Self-representation by attorneys

In 1945, the 3rd circuit ruled on the appeal of a pro se attorney representing her spouse. She wrote a complaint containing one hundred and fifty-four paragraphs that was "difficult to follow and understand". The 3rd Circuit ruled that it "is inexpedient to determine grave constitutional questions upon a demurrer to a complaint, or upon an equivalent motion, if there is a reasonable likelihood that the production of evidence will make the answer to the questions clearer" and that "The court below should have applied the rule of Ghadiali v. Delaware State Medical Society, D.C.Del., 48 F.Supp. 789, 790, and Allen v. Corsano, D.C.Del., 56 F.Supp. 169, 170, that where a plaintiff pleads pro se in a suit for the protection of civil rights the court should endeavor to construe the plaintiff's pleading without regard for technicalities."

Limits on self-representation for parties in representative capacities in a business situation

There are some situations in which self-represented appearances are not allowed. These situations generally include those when the party would be appearing in a representative capacity. 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 fundamental right. Representation of a business or organization, such as a corporation or an unincorporated business, has varied in time and place. A widely practiced rule in the last 100 years or so prohibits corporations and similar business entities from being represented by non-attorneys, on the theory that corporation is legally distinct from the person representing it. A person can represent their own sole owner business (proprietorship). There is extensive written records about who types of organizations in which situations can be represented by an employee or owner who is not a lawyer.

"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.”

Self-representation in family matters

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.

Notable pro se litigants

William Penn represented himself successfully following his 1670 arrest with William Meade. Penn was accused of preaching before a gathering in the street, which Penn had deliberately provoked in order to test the validity of the new law against assembly. Penn pleaded for his right to see a copy of the charges laid against him and the laws he had supposedly broken, but the judge (the Lord Mayor of London) refused — even though this right was guaranteed by the law. The judge directed the jury to come to a verdict without hearing the defense. When invited by the judge to reconsider their verdict and to select a new foreman, the members of the jury refused, and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, "You shall go together and bring in another verdict, or you shall starve". The judge had Penn sent to Newgate prison (on a charge of contempt of court). The full jury followed him, and the jury members were fined the equivalent of a year's wages each. The members of the jury, fighting their case from prison, managed to win the right for all English juries to be free from the control of judges. This case was one of the more important trials that shaped the future concept of American freedom (see Jury nullification) and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained.

William Marbury was appointed as a judge before there were any U.S. law schools or licensing of lawyers. His appointment was cancelled so he successfully sued President Madison. Marbury v. Madison solidified the United States' system of checks and balances and gave the judicial branch equal power with the executive and legislative branches.

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.

Edward C. Lawson is an African American civil rights activist, who was the pro se defendant in the case of Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.

Jim Traficant, a former Congressman from Ohio, represented himself in a RICO case in 1983, and was acquitted of all charges, becoming the only person to ever win a RICO case while representing himself. 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.

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."

Christina McCullock-Finney won Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 against the Quebec Bar Association before the Supreme Court of Canada.

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 posession. 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."