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The New Hampshire Bill of Rights, passed in 1784, Article 1 Section included "XIV. Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws. XV. No subject shall be held to answer for any crime, or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, and counsel." <ref>http://www.lonang.com/exlibris/organic/1784-nhr.htm</ref>
The New Hampshire Bill of Rights, passed in 1784, Article 1 Section included "XIV. Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws. XV. No subject shall be held to answer for any crime, or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, and counsel." <ref>http://www.lonang.com/exlibris/organic/1784-nhr.htm</ref>

==History of written and stated opinions related to self-representation and remedy==

In 1816, [[Thomas Jefferson]], 3rd President of the U.S., wrote a letter saying: "“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.” <ref>Thomas Jefferson, Letters to Pierre S. Dupont April 4, 1816</ref>


The Indiana Constitution of 1951 Article 7 Section 21. included "Every person of good moral character, being a voter,shall be entitled to admission to practice law in all Courts of justice." <ref>http://www.in.gov/history/5916.htm</ref>
The Indiana Constitution of 1951 Article 7 Section 21. included "Every person of good moral character, being a voter,shall be entitled to admission to practice law in all Courts of justice." <ref>http://www.in.gov/history/5916.htm</ref>

Revision as of 13:29, 1 October 2008

"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.[1]

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,[2] 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'.[3] This statute and the Bill of Rights were considered necessary in order to get support for the new Constitution.[citation needed] 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.[4]

The American Judicature Society, a private organization, assembled a list of current state references to self-representation. See List of U.S. State constitutional provisions allowing self-representation in state courts.

The Massachusetts Bill of Rights, passed in 1780, included " Article 1 XI.--Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. XII.--No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his council, at his election." [5]

The New Hampshire Bill of Rights, passed in 1784, Article 1 Section included "XIV. Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws. XV. No subject shall be held to answer for any crime, or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, and counsel." [6]

In 1816, Thomas Jefferson, 3rd President of the U.S., wrote a letter saying: "“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.” [7]

The Indiana Constitution of 1951 Article 7 Section 21. included "Every person of good moral character, being a voter,shall be entitled to admission to practice law in all Courts of justice." [8]

Mediation and Arbitration

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.” [9]

Statistics

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. [10]

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. ” [11]

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. It reports having over 2000 materials in its virtual library, several groups or listservs, a monthly newsletter, and "webinars".[12]

The American Bar Association (ABA) has also been involved with issues related to self-representation.[13] 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 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. [14]

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. [13]

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..."[15]

Self-representation by attorneys

The United States Supreme Court has taken the position that it is bad practice for attorneys to represent themselves.[citation needed] An attorney who represents himself or herself in a matter is still considered a pro se litigant.

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 attorneys fees.[16] 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".[17]

The Supreme Court of Canada in contrast allowed $25,000 in fees to a self-represented party who successfully sued the Bar Association of Quebec for delayed and inadequate supervision of a lawyer who had harassed her. [18]

Narrow exceptions to this principle have also been suggested by other courts in the United States. For example, one district court ruled that 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,[19] and another district court ruled that he may when he represents a law firm of which he is a member.[20] In each of those instances, a non-attorney would be barred from conducting the representation altogether. Courts have also found that this policy does not prevent a pro se attorney from recovering fees paid for consultations with outside counsel.[21]

Limits on self-representation

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 and similar business entities from being represented by non-attorneys, on the theory that a business entity is legally distinct from the person representing it.[22]

"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.”[23][24][25]

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.[26]

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.[27] 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. [28][29]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. [30]

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. [31] [32] [33]

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.[34] [35] [36] [37]

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.[38] [39] [40]

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."[41]

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. [42]

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." [43][unreliable source?][verification needed]

References

  1. ^ Madelynn Herman (September 25, 2006). "Self-Representation: Pro Se Statistics". National Center for State Courts.
  2. ^ Faretta v. California, 422 U.S. 806 (1975).
  3. ^ Faretta v. California, 422 U.S. 806, 813 (1975).
  4. ^ The Documentary History of the Supreme Court of the United States, 1789-1800, By Maeva Marcus & James R. Perry, United States Supreme Court; Columbia University Press, 1985.
  5. ^ http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss6.html
  6. ^ http://www.lonang.com/exlibris/organic/1784-nhr.htm
  7. ^ Thomas Jefferson, Letters to Pierre S. Dupont April 4, 1816
  8. ^ http://www.in.gov/history/5916.htm
  9. ^ Rule 33, Federal Rules of Appellate Procedure.
  10. ^ Statistical Overview P. 5. http://www.lasc.org/press_room/annual_reports/reports/2000stats.pdf
  11. ^ “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”
  12. ^ http://www.selfhelpsupport.org/
  13. ^ 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
  14. ^ http://www.abanet.org/legalservices/delivery/brown.html#kent
  15. ^ http://www.uscourts.gov/guide/vol2/ch1.html
  16. ^ Kay v. Ehrler, 499 U.S. 432 (1991).
  17. ^ 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).
  18. ^ Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 http://csc.lexum.umontreal.ca/en/2004/2004scc36/2004scc36.html
  19. ^ Krislov v. Rednour, 97 F. Supp. 2d 862, 867 (N.D. Ill. 2000)
  20. ^ Bond v. Blum, 317 F.3d 385, (4th Cir. 2003).
  21. ^ Blazy v. Tenet, 338 U.S. App. D.C. 300 (D.C. Cir. 1999).
  22. ^ Jonathan R. Macey, Macey on Corporation Laws (2000 supplement), §4.02[D] (b), "Appearance pro se.
  23. ^ Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (Wis. 1997)
  24. ^ Rights of suitors. § 21(2) [As amended April 1977]
  25. ^ Wisconsin Annotated Constitution
  26. ^ 2 Weil & Brown s. 130 (California law)
  27. ^ Hans Fantel, "William Penn: Apostle of Dissent," William Morrow & Co., New York, 1974, p.6, ISBN 0-688-00310-9 pp. 117-120.
  28. ^ Fantel, p. 124
  29. ^ Bonamy Dobrée, "William Penn: Quaker and Pioneer," Houghton Mifflin Co., 1932, New York, p. 71.
  30. ^ "The Thomas Jefferson Administrations". Presidential Administration Profiles for Students. Online Edition. Gale Group, 2002. Page 3.
  31. ^ Supreme Court on a Shoestring, The Washington Post, February 21, 2005
  32. ^ From the streets to the Supreme Court, The Houston Chronicle Oct. 17, 2004 (article mirrored at www.godlesshouston.com)
  33. ^ U.S. Supreme Court docket for 03-1500 Van Orden v. Perry
  34. ^ Edward C. Lawson -- official website
  35. ^ Kolender v. Lawson, 461 U.S. 352 (1983)
  36. ^ 1921 Tulsa Race Riot -- CNN
  37. ^ 1921 Tulsa Race Riot -- OSU Library
  38. ^ Traficant guilty of bribery, racketeering, CNN, April 12, 2002.
  39. ^ http://www.tnr.com/blog/theplank?pid=5782
  40. ^ The Smoking Gun: Archive
  41. ^ Smith, Christopher. S.L. Woman's Quest Strains Public Records System, The Salt Lake Tribune, May 11, 2003.
  42. ^ Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36
  43. ^ Law Blog Jailhouse Lawyer of the Day: Michael Ray Wall Street Journal article 2/2/2008
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