Pro se legal representation means advocating on one's own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases. Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf". This status is sometimes known as propria persona (abbreviated to "pro per"). In England and Wales the comparable status is that of "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] According to National Center on State Courts 2006 report, estimates of the pro se rate of family law overall averaged 67% in California, 73% in large Florida's counties, and 70% in some Wisconsin counties.[1] In San Diego, for example, the number of divorce filings involving at least one pro se litigant rose from 46% in 1992 to 77% in 2000, in Florida from 66% in 1999 to 73% in 2001.[1] California reports in 2001 that over 50% of family matters filings in custody and visitation are by pro se litigants.[2] In the U.S. Federal Court system for the year 2010 approximately 26% of actions filed, 93% of prisoner petitions and 10.5% of non-prisoner petitions were filed by pro se litigants.[3] Defendants in political trials tend to participate in the proceedings more than defendants in non-political cases, as they may have greater ability to depart from courtroom norms to speak to political and moral issues.[4]
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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.'"[5]
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court of the United States held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings.
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. 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,[6] 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 Council has addressed through published materials the need of the Judiciary to act in the interests of fairness to self-represented litigants.[7] The California rules express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Council 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."[8] 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".
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 against represented appeals. In 2000, 7% of writs in civil appeals 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, compared with 45% of writs submitted by counsel.[9] 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.”[10]
Since an independent evaluation of the cases is per se impossible, this study can by design not distinguish whether defendants whithout representation face a greater challenge or whether defendants are more likely to choose representation when in doubt of the merit of their case.
There is evidence that self-representation is common in Civil Cases:
According to 1996 report on pro se by University of Maryland Law School, 57% of pro se said they could not afford a lawyer, 18% said they did not wish to spend the money to hire a lawyer, 21% said they believed that their case was simple and therefore they did not need an attorney.[18][19] Also, ABA Legal Needs Study show that 45% of pro se believe that “Lawyers are more concerned with their own self promotion than their client’s best interest.”[18]
Defendants who choose to appear pro se may do so because they believe they may gain tactical advantages against the prosecutor, such as obtaining sympathy from the jury, the opportunity to personally address the jury and witnesses. Pro se appearances may also delay the trial proceedings and enhance the possibility of a mistrial and a subsequent appeal.[20]
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 British poet 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.[21] 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 advice 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".[22]
Narrow exceptions to this principle have also been suggested by other courts in the United States. For example, according to one district court a state-licensed attorney who is acting as pro se may collect attorney's fees when he represents a class (of which he is a member) in a class action lawsuit,[23] or according to another court represents a law firm of which he is a member.[24] 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.[25] Pro se who are not state-licensed attorneys cannot bring up a class action lawsuit.[26]
It is important for pro se plaintiffs to remember that Federal courts can impose liability for the prevailing party's attorney fees to the losing party, if the judge considers the case frivolous or for purpose of harassment, even when the case was voluntarily dismissed.[27][28] In the case of Fox v. Vice, U.S. Supreme Court held that reasonable attorneys' fees could be awarded to the defendant under 42 U.S.C. Sec. 1988, but only for costs that the defendant would not have incurred "but for the frivolous claims." [29][30] Unless there is an actual trial or judgment, if there is only pre-trial motion practice such as motions to dismiss, attorney fee shifting can only be awarded under FRCP Rule 11 and it requires a that the opposing party file a Motion for Sanctions and that the court issue an order identifying the sanctioned conduct and the basis for the sanction.[31] Pro se still has a right to appeal any order for sanctions in the higher court.[32] In the state courts, however, each party is generally responsible only for its own attorney fees, with certain exceptions.[28]
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.[33]
"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.”[34][35][36]
Similarly, a pro se litigant may not act as a class representative in a class action lawsuit.[26] Therefore a pro se litigant may not bring a class action.[26] Furthermore, a non-attorney parent may not appear pro se on behalf of a child, except to appeal the denial of social security benefits to such child.[26]
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.[37]
Some federal court of appeals allow unrepresented litigants to argue orally (even so nonargument disposition is still possible), and in all courts the percentage of cases in which argument occurs is higher for counseled cases.[38]
Some pro se litigants are federal prisoners and are subject to the Prison Litigation Reform Act. The ACLU asserted "“For over thirteen years, the Prison Litigation Reform Act has denied access to the courts to countless prisoners who have become victims of abuse, creating a system of injustice that denies redress for prisoners alleging serious abuses, barriers that don’t apply to anyone else. It is time for Congress to pass legislation to restore the courts as a needed check on prisoner abuse.” [39]
According to Utah Judicial Council report of 2006, 80 percent of self-represented people coming to the district court clerk’s office seek additional help before coming to the courthouse. About 60 percent used the court’s Web site, 19 percent sought help from a friend or relative, 11 percent from the court clerk, and 7 percent went to the library. In the justice courts, 59 percent sought no help.[11] Every U.S. state has some forms available on-line for most common filings; if pro se cannot find appropriate form in his state, he often can modify a form from another state to fit his request. Also there are some attorneys who provide per-hour rate consultations. Pro se applicants, however, unlike lawyers, must ask a court clerk to officially issue them subpoena forms when they need to call witnesses by phone or in person, or when they need to officially request documents to be sent to them and/or directly to court (any documents that have not been subpoenaed to court or verified by a witness can be dismissed by the opposite party as hearsay). There should be at least four copies of these documents during hearings with a judge, i.e. one copy for each: judge, opposite party, court clerk and pro se himself. These documents must be listed to court several days in advance, properly labeled with the same exhibit numbers as previously listed, and all pages should be numbered. Paralegals can help pro se to prepare forms for submissions to court and hearings.
Many pro se resources come from these sources: local courts, which may offer limited self-help assistance;[40] 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.[41] "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.[42]
The American Bar Association (ABA) has also been involved with issues related to self-representation.[43] In 2008, the Louis M. Brown Award for Legal Access was presented 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.[44]
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.[43]
States have organizations dedicated to delivering services to pro se litigants. For instance, the Minnesota Bar Association has a "pro se implementation committee".[45]
United States federal courts created Public Access to Court Electronic Records (PACER) system that obtain case and docket information from the United States district courts, United States courts of appeals, and United States bankruptcy courts.[46] The system, managed by the Administrative Office of the United States Courts, allows lawyers and self-represented clients to obtain documents entered in the case much faster than regular mail.[46] Several federal courts published general guidelines for pro se litigants and Civil Rights complaint forms.[47][48][49][50]
There are also freely accessible web search engines to assist pro se in finding court decisions that can be cited as an example or analogy to resolve similar questions of law.[51] Google Scholar is the biggest database of full text state and federal courts decisions that can be accessed without charge.[52] These web search engines often allow pro se to select specific state courts to search.[51]