Cases and Materials on Pro Se Litigation and Related Issues
Prepared for the ABA Lawyers’ Conference Annual Meeting
Tucson, Arizona
May 1 - 4, 1997
Jona Goldschmidt, Associate Professor Department of Criminal Justice Loyola University Chicago
Introduction
Historical roots of the tradition of self-representation
Anti-Lawyer Sentiment in American and English History
Origins and Evolution of unauthorized practice of law (UPL) restrictions
Extent of Pro Se Litigation
The Ripple Effect of Pro Se Litigation
The Growth of NonLawyer Practice
Continuing struggle to define the practive of law
The Legal Profession's Response to Pro Se Litigation
Court Manager's Response to Pro Se Litigation
The Judicial Response to Pro Se Litigation
Meeting the Challenge of Pro Se Litigation
I. Introduction
A. Historical roots of the tradition of
self-representation"The Sixth Amendment does
not provide merely that a defense shall be made for the
accused; it grants to the accused personally the right to
make his defense. It is the accused, not counsel, who
must be ‘informed of the nature and cause of the
accusation.’ who must be ‘confronted with the
witnesses against him,’ and who must be accorded
‘compulsory process for obtaining witnesses in his
favor.’ Although not stated in the Amendment in so
many words, the right to self-representation--to make
one’s own defense personally--is thus necessarily
implied by the structure of the Amendment. The right to
defend is given directly to the accused; for it is he who
suffers the consequences if the defense fails." Faretta
v. State of California, 95 S.Ct. 2525, 2532 (1975).
"The Founders believed that self-representation
was a basic right of free people. Underlying this belief
was not only the antilawyer sentiment of the populace,
but also the ‘natural law’ thinking that
characterized the Revolution’s spokesmen . . .
Thomas Paine, arguing in support of the 1776 Pennsylvania
Declaration of Rights, 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 of pleading by proxy, that is, by counsel, is an
appendage to the natural right of self-representation . .
." Faretta, supra, 95 S.Ct. at 2539, n. 39.
B. Anti-lawyer sentiment in American and
English history
Roscoe Pound, The Lawyer From Antiquity to Modern
Times (St. Paul, MN: West Publishing Co., 1953).
Michael Birks, Gentlemen of the Law (London: Stevens
& Sons, 1960).
C. Origins and evolution of unauthorized
practice of law (UPL) restrictions
Jona Goldschmidt, A Brief History of the
Unauthorized Practice of Law, in 1994 Survey and
Related Materials on the Unauthorized Practice of
Law/Nonlawyer Practice (Chicago: Am. Bar Assoc., 1996).
Barlow F. Christensen, The Unauthorized Practice of
Law: Do Good Fences Really Make Good Neighbors--Or Even
Good Sense?, 1980 Am. Bar Found. J. 159 (1980).
Deborah L. Rhode. Policing the Professional
Monopoly: A Constitutional and Empirical Analysis of
Unauthorized Practice Prohibitions, 334 Stan. L. Rev.
1 (1981).
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II. Extent of Pro Se Litigation
Bruce D. Sales, et al., Self-Representation in
Divorce Cases (Chicago: Am. Bar Assoc., 1993).Steven
K. Smith, et al., Tort Cases in Large
Counties--Special Report (Washington,
DC:Bureau of Justice Statistics, 1995).
Institute for Survey Research, Report on the
Legal Needs of the Low- and Moderate-Income
Public (Chicago: Am. Bar Assoc.,1994).
III. The Ripple Effect of Pro Se Litigation
A. Growth of nonlawyer practiceJames
Podgers, Legal Profession Faces Rising Tide of
Non-Lawyer Practice, 30 Ariz. Atty. 24 (March, 1994).
Daniel Jordan, Unauthorized Practice of Law in
Administrative Proceedings, 48 J. Mo. Bar Assoc. 539
(November, 1992).
Deborah L. Rhode, The Delivery of Legal Services by
Non-Lawyers, 4 Geo. J. Leg. Ethics 209 (1990).
Sperry v. Florida, 373 U.S. 379 (1963) (U.S.
Patent Office may allow nonlawyer practitioners despite
fact that it constitutes UPL under state law).
B. Professionalization by nonlawyer practitioners as a
response to UPL enforcement
Stephanie J. Johnson, Legal Technicians: Should
Non-lawyers Be Allowed to Practice Law?, 18 Bar
Leader 17 (1993).
Kathleen E. Justice, There Goes the Monopoly: The
California Proposal to Allow Nonlawyers to Practice,
44 Vand. L. Rev. 179 (1991).
Meredith A. Munro, Deregulation of the Practice of
Law: Panacea or Placebo?, 42 Hast. L. J. 203 (1990).
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C. Continuing struggle to define the practice of
law
There are eight definitions of the "practice of law"
reflected in state case law:
1. The requires the knowledge and application of legal
principles test
As the Oklahoma Supreme Court stated in using this
approach, "Our decisions definitely spell out the
concept of the practice of law: the rendition of services
requiring the knowledge and the application of legal
principles and techniques to serve the interests of
another with his consent. This is a concept applied over
and over again in other jurisdictions . . . [I]t was
unnecessary that we should otherwise have defined
'practice of law' to include specific acts as a
prerequisite to the exercise of the proper jurisdiction
of the judicial department." R.J. Edwards, Inc.
v. Hert, 504 P.2d 407, 416 (Okla. 1972). The court
went on to hold that "the preparation for money
consideration of legal instruments to be shaped from a
mass of facts and conditions involving the application of
intricate principles of law which can only be applied by
a mind trained in existing laws in order to ensure a
specific result and to guard against other undesirable
results comes within the term 'practice of law'." Id.The
Supreme Court of Utah accepted the rule in R.J.
Edwards adding "[the practice of law] not only
consists of performing services in the courts of justice
throughout the various stages of a matter, but in a
larger sense involves counseling, advising, and assisting
others in connection with their legal rights, duties, and
liabilities." Utah State Bar v. Summerhayes &
Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995).
In addition, the court in Summerhayes found that
the practice of law includes the preparation of contracts
and other legal instruments by which legal rights and
duties are fixed. Id.
An Illinois court approved a definition of the
practice of law that included the giving of advice, when
the rendition of such services requires the use of any
degree of legal knowledge or skill. This includes the
preparation of pleadings and other papers incident to
actions and special proceedings, the management of such
actions and proceedings on behalf of such clients before
the court, conveyancing, the preparation of legal
instruments of all kinds, all advice to clients, and all
actions taken for them in matters connected with the law.
People ex rel. Illinois State Bar Assoc. v. Peoples'
Stock Yards State Bank, 176 N.E. 901 (Ill. 1931).
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2. The activities lawyers have traditionally performed
test
Under this definition, the practice of law is defined as
activities that have always been traditionally performed
by an attorney. As an Arizona court held, "[I]t is
impossible to lay down an exhaustive definition of the
'practice of law' by attempting to enumerate every
conceivable act performed by lawyers in the normal course
of their work. We believe it sufficient to state that
those acts, whether performed in court or in the law
office, which lawyers have customarily have carried on
from day to day through the centuries must constitute the
'practice of law'." State Bar of Arizona v.
Arizona Land Title and Trust Co., 366 P.2d 1, 8-9
(Ariz. 1961). A court in Maryland held that the
practice of law to includes "utilizing legal
education, training, and experience [to apply] the
special analysis of the profession to a client's
problem." Attorney Grievance Comm’n v. James,
666 A.2d 1246 (Md. 1995). The court in James added
"depending on the circumstances, meeting prospective
clients may constitute the practice of law ... the very
acts of interview, analysis and explanation of legal
rights constitute practicing law." Id.
3. The service incidental to principal business
test
This definition of the practice of law considers
activities performed by nonlawyers that are not part of
their principal business as the practice of law. For
example, "It is said that while conveyancing may be
considered to be the practice of law, the real question
is whether, conceding that it is, it should be deemed
unlawful when solely incidental to a lawful business.' Ingham
County Bar Assoc. v. Walter Neller Co., 69 N.W.2d 713
(Mich. 1955).
An Arkansas court held that "Many activities fall
within the ambit of the practice of law, for instance, a
merchant collecting his own bills is not practicing law.
. . . [T]he filling in of the simple standardized forms
here involved is a necessary incident of his business
just as the collection of the merchant's bills is a
necessary incident of his business. . . . [A] real estate
broker . . . may be permitted to fill in the blanks in
simple printed standardized real estate forms . . ."
Creekmore v. Izard, 367 S.W.2d 419, 422-23 (1963).
4. The knowledge beyond the average citizen test
As the New Mexico Supreme Court held, "[W]henever,
as incidental to another transaction or calling, a
layman, as part of his regular course of conduct resolves
legal questions for another at his request and for
consideration by giving him advice or taking action for
and in his behalf, the layman is ‘practicing
law,’ but only if difficult or doubtful legal
questions are involved, which, to safeguard the public,
reasonably demand the application of a trained legal
mind. . . What is a difficult or doubtful question of law
demanding the application of a trained legal mind is not
to be measured by the comprehension of a trained legal
mind but by the understanding thereof which is possessed
by a reasonably intelligent layman who is reasonably
familiar with similar transactions. The test must be
applied in a common-sense way which will protect
primarily the interest of the public and not hamper or
burden such interests with impractical and technical
restrictions which have no reasonable
justification." State Bar of New Mexico v.
Guardian Abstract and Title Co., 575 P.2d 943, 948
(NM 1978)"When an accountant or other layman who
is employed to prepare an income tax return is faced with
difficult or doubtful questions of the interpretation or
application of statutes . . . or general law . . . it is
his duty to leave the determination of such questions to
a lawyer." Gardner v. Conway, 48 N.W.2d 788
(Minn. 1951). "What is a difficult or doubtful
question of law is not to be measured by the
comprehension of a trained legal mind, but by the
understanding thereof which is possessed by a reasonably
intelligent layman who is reasonably familiar with
similar transactions." Agran v. Shapiro, 273
P.2d 619 (Calif. 1954).
A court in Florida sets forth criterion for
determining what constitutes the practice of law as
follows: "We think that in determining whether the
giving of advice and counsel and the performance of
services in legal matters for compensation constitute the
practice of law it is safe to follow the rule that if the
giving of such advice and performance of such services
affect[s] important right of person under the law, and if
the reasonable protection of the rights and property of
those advised and served requires that the persons giving
such advice possess legal skill and knowledge of the law
greater than that possessed by the average citizen, then
giving of such advice and the performance of such
services by one for another as course of conduct
constitute the practice of law. State v. Foster,
674 So.2d 747 (Fla. 1996).
5. The balancing of interests test
Under this approach, courts weigh the relative
interests of the public against those of the individual
accused of UPL. In one case involved realtors, it was
held that "Reason, public convenience and welfare
appear to be on the side of the defendants. We feel that
to grant the injunctive relief requested, thereby denying
to the public the right to conduct real estate
transactions in the manner in which they have been
transacted for over half a century, with apparent
satisfaction, and requiring all such transactions to be
conducted through lawyers, would not be in the public
interest; that the advantages, if any, to be derived by
such limitation are outweighed by the convenience now
enjoyed by the public in being permitted to choose
whether their broker or their lawyer shall do the acts or
render the services which plaintiffs seek to
enjoin." Conway-Bogue Realty Investment Co. v.
Denver Bar Assoc., 312 P.2d 998, 1007 (Colo. 1957).
6. The activities which are incidental to
appearance in court test
The Supreme Court of Ohio found that the practice of
law includes the conduct of litigation and those
activities which are incidental to appearance in court. Akron
Bar Assn v. Greene, 673 N.E.2d 1307(Ohio 1997). The
court in Greene held that "The practice of
law . . . embraces the preparation of pleadings and other
papers incident to actions and special proceedings and
the management of such actions and proceedings on behalf
of clients before judges and courts . . ." Id.
The court in Greene concluded that the practice of
law also "includes legal advice and counsel, and
preparation of legal instruments and contracts by which
legal rights are secured...." Id.
A court in Connecticut pronounced the practice of law
to "consist in no small part of the work performed
outside of any court and having no immediate relation to
proceedings in court. Statewide Grievance Comm
v. Patton, 683 A.2d 1359 (Conn. 1996). The court in Patton
held the practice of law embraces the giving of legal
advice on a variety of subjects and the preparation of
legal instruments covering an extensive field . . .
although such transactions have no direct connection with
court proceedings, they are always subject to subsequent
involvement in litigation . . . [t]hey require in many
aspects a high degree of legal skill and great capacity
for adaptation to difficult and complex situations."
Id.; see also State v. Despain, 460 S.E.2d
576 (S.C. 1995)(finding preparation of legal documents
for court constitutes practice of law when such
preparation involves giving advice, consultation,
explanation, recommendations on matters of law).
7. The professional judgment of a lawyer test
Under this test, an Ohio court recently suggested that
the practice of law includes any act that requires
"the professional judgment of a lawyer." In
re Burson, 909 S.W.2d 768 (Tenn. 1995). The court in Burson
further noted that "the essence of the professional
judgment is the lawyer's educated ability to relate
general body and philosophy of law to specific legal
problem of a client." Id. ; see also Old
Hickory Engineering & Machine Co., Inc., v. Henry,
937 S.W.2d 782 (Tenn. 1996)(holding preparation and
filing of a compliant require the professional judgment
of a lawyer and is, therefore, the "practice of
law").
8. The fair intendment of the term ["practice
of law"] test
A court in Maryland held: "[t]his court has
always found it difficult to craft an all encompassing
definition of the 'practice of law.' Attorney
Grievance Commn v. Hallmon, 681 A.2d 510 (Md. 1996).
"To determine what is the practice of law we must
look at the facts of each case and determine whether [the
acts] fall within the fair intendment of the term." Id.
The court in Hallmon concluded "where trial
work is not involved but the interpretation, the giving
of legal advice, or the application of legal principles
to problems of any complexity, is involved, these
activities are still the practice of law." Id.
9. See also, Am. Bar Assoc., Annotated Code of
Professional Responsibility, Ethical Consideration 3-5
(1983): AIt is neither necessary nor desirable to attempt
the formulation of a single, specific definition of what
constitutes the practice of law. Functionally, the
practice of law relates to the rendition of services for
others that call for the professional judgment of the
lawyer. The essence of the professional judgment of the
lawyer is his educated ability to relate the general body
and philosophy of law to a specific legal problem of a
client; and thus, the public interest will be better
served if only lawyers are permitted to act in matters
involving professional judgment."
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IV. The Legal Profession's Response to
Pro Se Litigation
A. Use of multiple approaches Report of the
Commission on the Delivery of Legal Services of
the State Bar of Wisconsin (Madison, WI:
State Bar of Wisconsin, 1996).
David Long, et al., The Pro Per Crisis in
Family Law (Memorandum to the State Bar of
California Board Committee on Courts and
Legislation. August 15, 1995).
Standing Committee on the Delivery of Legal
Services, Responding to the Needs of the
Self-Represented Divorce Litigant (Chicago:
Am. Bar Assoc., 1994).
Steven R. Cox, et al., A Report on
Self-Help Law: Its Many Perspectives
(Chicago: Am. Bar Assoc. Special Comm. On the
Delivery of Legal Services, undated)
B. Unbundled legal services and the
ghostwriting issue
Forrest S. Mosten, Unbundling of Legal
Services and the Family Lawyer, 28 Fam. L. Q.
421 (1994).
Ghostwriting (1) "causes the court to
apply the wrong tests in its decisional process
and can very well produce unjust results";
(2) it is "deliberate evasion of the
responsibilities imposed on counsel by Rule 11,
F.R.Civ.P."; and (3) a "undisclosed
counsel who renders extensive assistance to a pro
se litigant is involved in the litigants'
misrepresentations contrary to the Model Code of
Professional Responsibility." Johnson v.
Bd. of Comm'rs for the County of Fremont, 868
F.Supp. 1226 (D. Colo. 1994), aff'd on other
grounds 85 F.3d 489 (10th Cir. 1996); Somerset
Pharmaceuticals v. Kimball, 168 F.R.D. 69
(M.D. Fla. 1996) (ghostwriting an act that
"taint[s] the legal process and create[s]
disparity between the parties").
C. Litigators' scrutiny of judicial assistance
to pro se litigants.
Robert M. Daniszewski, Coping with the Pro
Se Litigant, N.H. Bar J. (March, 1995, p.
46).
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V. Court Managers' Response to Pro Se
Litigation
A. The Trial Court Performance Standards Standard
1 : "Trial courts should be open and
accessible . . . Accessibility is required not
only for those who are guided by an attorney but
also for all litigants . . . (Commentary);
Standard 1.3: "All who appear before the
court are given the opportunity to participate
effectively without undue hardship or
inconvenience"; Standard 1.4: Judges and
other trial court personnel are courteous and
responsive to the public and accord respect to
all with whom they come into contact." This
is particularly important "in the
understanding shown and assistance offered by
court personnel to . . . those unfamiliar with
the trial court and its procedures"
(Commentary); Standard 5.1: "The trial court
and the justice it delivers are perceived by the
public as accessible" and "A trial
court not only should be accessible to those who
need its services, but it also should be so
perceived by those who may need its services in
the future" (Commentary).
B. The specter of UPL and limits on assistance
to the public
"Clerks of the court who are involved in
assisting the public with forms and pleadings
must be careful not to advise the public as to
its legal rights and responsibilities. Careful
attention must be given to avoid the unauthorized
practice of law. However, this does not mean that
clerks of the court may not assist the public in
the routine filling out of forms. . . [A] judge
should promote public confidence in the integrity
and impartiality of the judiciary. . . If clerks
of the court were prohibited from lending
assistance to the public, the result would be a
judiciary that is only accessible to those
individuals able to afford counsel. Clearly, such
an effort would not be desirable nor
constitutional. Furthermore, assistance in
filling out forms is desirable by allowing for an
efficient flow of an individual's case through
the system." Opinions of the Arizona
Judical Ethics Advisory Committee, No. 88-5
(May 11, 1988)
"Providing sample pleadings to
individuals upon request also appears to violate
the prohibition against practicing law [by clerks
of the court]. Establishing a master file of
sample pleadings and papers copied from ones
filed in the clerk's office requires the exercise
of judgment as to which pleadings and papers are
good and sufficient. Making copies of such
pleadings and papers available, on request, to
pro se individuals requires the exercise of
further judgment in order to determine which
sample best suits the legal needs of the
individual. . . Providing the sample is
tantamount to helping in the preparation of
papers that are to be filed in court." Opinions
of the Maryland Attorney General (October 22,
1991)
"[A] clerk [who] . . . identifies and
describes options and provides the appropriate
forms and assistance in completing them" is
not engaged in the practice of law.
"[P]roviding assistance with filling out
forms and offering procedural advice clearly do
not run afoul of the prohibition on the practice
of law." Opinions of the Massachusetts
Advisory Committee on Ethical Opinions for Clerks
of the Courts, No. 95-6 (November 8, 1995).
"Furnishing forms to a person would not
constitute the practice of law. However, filling
out or helping the person fill out the forms or
assisting in the execution of the forms would
constitute the practice of law." Opinions
of the Legal Ethics Committee of the Indiana
State Bar Assoc., No. 4 (1992).
"[T]he practice of law includes the
drafting or selection of documents and the giving
of advice in regard thereto any time an informed
or trained discretion must be exercised in the
selection or drafting of a document to meet the
needs of the persons being served. The knowledge
of the customer's needs obviously cannot be had
by one who has no knowledge of the relevant
law." Ore. State Bar v. Security Escrows,
Inc., 377 P.2d 334, 338 (1962).
C. The Greacen Guidelines for clerks’
assistance
John M. Graecen, "No Legal Advice From
Court Personnel." What Does That Mean?,
Judges’ Journal (Winter, 1995, p. 10)
D. Development of pro se assistance programs
Eleanor Landstreet, et al., Developing
Effective Procedures for Pro Se Modification of
Child Support Awards (Washington, DC: U.S.
Dep’t of Health and Human Services, 1991).
Michigan State Court Administrative Office, Pro
Se Forms and Instruction Packets: Providing
Improved Access to Michigan Courts: Final Report
(Lansing, MI: Michigan Supreme Court, 1994).
Alexandra B. Stremler, et al., Florida Pro
Se Clinics: Representation for the Poor
(Gainseville, FL: University of Florida College
of Law, 1994).
James G. Apple, et al., Manual for
Cooperation Between State and Federal Courts
(Washington, DC: Federal Judicial Center, 1997).
Resource Guide for Managing Prisoner Civil
Rights Litigation--with Special Emphasis on the
Prisoner Litigation Reform Act (Washington,
DC: Federal Judicial Center, 1996).
How to Process an Appeal in the New Mexico
Court of Appeals (Albuquerque, NM: State Bar
of New Mexico, 1995).
First Circuit’s [Florida] Pro
Se Litigant System Delivers Results, Full
Court Press (July-August, 1994, p.2).
E. Nonlawyer practice
Commission on Nonlawyer Practice, Nonlawyer
Activity in Law-Related Situations: A Report with
Recommendations (Chicago: Am. Bar Assoc.,
1995).
Jane C. Murphy, Access to Legal Remedies:
The Crisis in Family Law, 8 BYU J. Pub. L.
123 (1993).
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VI. The Judicial Response to Pro Se
Litigation
A. The right of access to the court and the
"meaningful hearing" requirement of due
processPrisoners, "and indeed every
person has a right of access to the courts which
is protected by the United State
Constitution." White v. Lewis, 804
P.2d 805, 815 (AZ 1991), citing Ex Parte Hull,
61 S.Ct. 640 (1941); Johnson v. Avery, 89
S.Ct. 747 (1969), and Wolff v. McDonnell,
94 S.Ct. 2963 (1974).
"Due process" requires a meaningful
opportunity to be heard, granted at a meaningful
time, and in a meaningful manner: Logan v.
Zimmerman Brush Co., 455 U.S. 422 (1982); Little
v. Streator, 452 U.S. 1 (1981); Armstrong
v. Manzo, 380 U.S. 545 (1965).
Howard M. Rubin, The Civil Pro Se Litigant
v. The Legal System, 20 Loy. U. Chi. L. J.
999 (1989).
Julie M. Bradlow, Procedural Due Process
Rights of Pro Se Litigants, 55 U. Chi. L.
Rev. 659 (1988).
Helen B. Kim, Legal Education for the Pro
Se Litigant: A Step Towards a Meaningful Right to
Be Heard, 96 Yale L. J. 1641 (1987).
B. The traditional role of the judge
Judges also have a duty under Canon 3 of the
Code to "be patient, dignified and courteous
to litigants . . ." (Sec. B4) However,
"The duty to hear all proceedings fairly and
with patience is not inconsistent with the duty
to dispose promptly of the business of the court.
Judges can be efficient and businesslike while
being patient and deliberate." (Commentary,
Sec. B4) Further, judges "shall accord to
every person who has a legal interest in a
proceeding . . . the right to be heard according
to law." (Sec. B7) "Law" includes
court rules, statutes, constitutional provisions
and decisional law. (Code, Terminology) In
addition, judges also "must demonstrate due
regard for the rights of the parties to be heard
and to have issues resolved without unnecessary
cost or delay." (Commentary, Sec. 8)
Finally, judges have a duty to assure that court
officials "refrain from manifesting bias or
prejudice in the performance of their official
duties." (Canon 3, Sec. C2) The latter
provision suggests a duty upon judges generally,
and especially administrative judges, to assure
their court staff provide assistance in an
impartial manner.
C. Judges’ attitudes toward pro se
litigants
Some judges’ comments reflect a distinct
anti-pro se litigant sentiment. They are
described as "an increasing problem,"
they are "very time consuming," and
they "get the ear of the media who then
report inaccurate information that makes the
judiciary look bad." These judges
emphatically state that they are "opposed to
socialized legal services," that "no
one likes pro se litigants," and that,
because there is the possibility of their
"clogging our judicial system," there
is a "need to limit their access if that
does happen." Some anti-pro se judges
suggest that pro se litigation not be encouraged,
that "rules are not useful for pro se
litigants," and that there is a need for a
rule "outlawing pro se representation."
(AJS/JMI Pro Se Project Survey, 1996)
D. The acrobatic judge
Several judicial ethics requirements are
relevant to judges’ treatment of pro se
litigants. Canon 2 of the ABA Model Code of
Judicial Conduct (1990) requires that judges
"avoid impropriety and the appearance of
impropriety" in all judicial activities;
this includes acting "in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary." ( Sec. A).
"The test for appearance of impropriety is
whether the conduct would create in reasonable
minds a perception that the judge’s ability
to carry out judicial responsibilities with
integrity, impartiality and competence is
impaired." (Commentary, Sec. A)
E. Managing the pro se litigant
1. Case Law
Pro se litigant’s complaint must be held
to "less stringent standards than formal
pleadings drafted by lawyers. Haines v. Kerner,
92 S.Ct. 594 595 (1972). "Pleadings" is
defined by Black’s Law Dictionary
(5th ed. 1979) as: "The formal allegations
by the parties of their respective claims and
defenses." It is not clear whether
"pleadings" includes letters, motions,
or other written submissions to the court.
Moreover, it is not clear whether the Haines
rule applies to pleadings in state courts, or
whether the ruling was merely an interpretation
of the federal pleadings rule.
"A defendant does not have a
constitutional right to receive personal
instruction from the trial judge on courtroom
procedure. Nor does the Constitution require
judges to take over chores for a pro se defendant
that would normally be attended to by trained
counsel as a matter of course." McKaskle
v. Wiggins, 465 U.S. 168, 183-84 (1984).
"The trial court is under no obligation
to become an ‘advocate’ for or to
assist and guide the pro se layman through the
trial thicket." U.S. v. Pinkey, 548
F.2d 305, 311 (10th Cir. 1977). The judge who
"unduly" aids the pro se litigant in
his defense is, it is argued, wrongfully acting
as an advocate for one side of the dispute.
Courts must accord "special
attention" to pro se litigants faced with
summary judgment motions. Ham v. Smith,
653 F.2d 628 (D.C.Cir. 1981). At the very least,
a litigant is entitled to be warned that when he
is confronted by a summary judgment motion, he
must obtain counter-affidavits or other
evidentiary material to avoid the entry of
judgment against him. Timms v. Frank, 953
F.2d 281 (7th Cir. 1992); Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975); Hudson v. Hardy,
412 F.2d 1091 (D.C.Cir. 1968). Some circuits have
limited this rule to prisoners. Brock v.
Hendershott, 840 F.2d 339 (6th Cir. 1988);
Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986)
("[a] litigant who chooses himself as legal
representative should be treated no
differently" than one with counsel, and
requiring notice to non-prisoners of Rule 56
requirements "implicates the court’s
impartiality and discriminates against opposing
parties who do have counsel.") However, Timms,
953 F.2d at 285, held that "the attempted
distinction between prisoners and other pro se
litigants with regard to this issue is
unconvincing. . . [T]he idea that non-prisoners
do not deserve notice because they have chosen to
proceed pro se ignores the fact that most
litigants who sue without a lawyer do so because
they cannot afford one."
In regards to compliance with evidentiary
rules, per se, one supreme court has commended a
trial judge for his conduct in "relax[ing]
the rules of evidence and mak[ing] a special
effort to facilitate the [pro se]
plaintiff’s presentation of his case." Austin
v. Ellis, 119 N.H. 741, 743 (1979). The court
in Austin followed a recommendation of an
ABA committee in declining to set any firm
parameters regarding how far a judge should go to
assist a pro se litigant:
The court is confronted by an especially
difficult task when one of the litigants chooses
to represent himself. The court’s essential
function to serve as an impartial referee comes
into direct conflict with the concomitant
necessity that the pro se litigant’s case be
fully and completely presented.
The proper scope of the court’s
responsibility [to a pro se litigant] is
necessarily an expression of careful exercise of
judicial discretion and cannot be fully described
by a specific formula [citing ABA Standards,
Comm. On Standards of Judicial Administration,
Sec. 2.23, at 45-47 (1976)]
2. Judicial Practices
Many judges said they briefly explain trial
procedures to self-represented litigants before a
hearing, including the manner of presentation of
evidence, the hearsay rule, marking exhibits, and
other procedural matters. Some will do this a
week or more before trial. They also relax the
rules of evidence "so long as it
doesn’t get too farfetched." Some
indicated that the evidence will comes in unless
there are objections to it. In some cases, the
judges themselves will raise such objections. The
judges indicated that they often ask questions of
witnesses themselves. One judge swears in both
pro se parties, and asks questions of each
"sometimes at the same time." Judges
also "guide" the pro se at time by
"nudging them along by asking them if they
want X to be marked and they want X to be
admitted." One judge describes his procedure
as: "If the pro se litigant testifies, I
have him/her make a statement and dispense with
questions and answers." Still others take a
firmer approach: "I expect the rules of
evidence will be enforced. I point out to the
litigant that the rules must be the same for each
side. Retain counsel or suffer the
consequences." (AJS/JMI Pro Se Project
Survey, 1996)
FJC Directions: Special Issue on Pro Se
Litigation--New Legislation, New Challenges
(Wasington, DC: Federal Judicial Center, June,
1996)
Report of the Minnesota Conference of Chief
Judges Comm. On the Treatment of Litigants and
Pro Se Litigation (1996)
Report on Pro Se Litigation (Chicago:
Pro Se Advisory Committee of the First Municipal
District, Circuit Court of Cook County, 1995).
F. Segregating pro se litigants
Judge Robert Gottsfield, Let’s Talk
About It--A Superior Court Pro Se Division,
Ariz. Atty. (May, 1992, p. 49).
G. Managing the untraditional pro se litigant
A fair number of judges have had experience
with "constitutionalists." These
litigants, often with a militia-like political
agenda that includes non-recognition of the
court’s jurisdiction over them, often delay
the proceedings with non-meritorious claims and
contentions or "irrelevant and
incomprehensible positions." Worse still,
some of these litigants have been known to file
suit or liens against judges. The judges’
suggestions for handling these types of litigants
include: (1) have the sheriff present, "who
is ready to place the obstructionist in
jail," (2) and "clear explanations as
to when that power will be utilized," (3)
use of "extreme patience," (4)
"give them enough time to ‘vent’
and then politely, but firmly, shut them
off," (5) "keep them focused on the
issues in the case and away from political
issues," (6) rule promptly on the
"barrage of motions" brought, (7)
provide extra time for their trials, (8) address
each issue raised, no matter how
farfetched," (9) "Get the guns before
they get into the courtroom," and (10)
always take the matters under advisement, and
them promptly rule by written order. (AJS/JMI Pro
Se Project Survey, 1996)
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VII. Meeting the Challenge of Pro Se
Litigation
A. Is fundamental, institutional change possible in
the legal profession and the courts?
B. Will the "problem" go away?
C. Will the judiciary stand with the legal profession
or the pro se litigant?
D. Future trends in management of pro se litigation.
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