Pro se legal representation in the United States
Pro se legal representation means to argue on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, or a defendant in criminal cases, rather than have representation from counsel or an attorney.
The term pro se comes from Latin pro se, meaning "for oneself" or "on behalf of themselves". This status is sometimes known as in propria persona. In England and Wales the comparable status is that of "litigant in person". In Australia and Canada, the term is self-represented litigant.
Prevalence
According to the National Center for State Courts in the United States, as of 2006 pro se litigants had become more common in both state courts and federal courts. This increase is due to a number of factors, including a fall in funding for federal legal aid, an increase in provision of limited legal assistance, and increase in divorce rates. Estimates of the pro se rate in family law cases overall averaged 67% in California, 73% in Florida's large counties, and 70% in some Wisconsin counties. 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. California reports in 2001 that over 50% of family matters filings in custody and visitation are by pro se litigants. In the U.S. Federal Court system for the year 2013 approximately 27% of civil actions, 92% of prisoner petitions and 11% of non-prisoner petitions were filed by pro se litigants. 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.History
In Faretta v. California, the Supreme Court of the United States stated:In 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."The Court's opinion went on to hold that criminal defendants, in state courts, have a constitutional right to refuse counsel and represent themselves.
However, the right to represent oneself is not absolute. Courts have the authority and duty to determine whether a particular individual is capable of representing himself or herself. In Godinez v. Moran, the Supreme Court found being competent to stand trial is equivalent to being competent to plead guilty, which further meant being competent to waive legal representation. The later Indiana v. Edwards decision allows a court to inquire into the individual's lucidity and mental capacity, and sets competency to represent oneself as distinct from one's competency to stand trial.
Martinez v. Court of Appeal of California determined that an appellant who is the defendant in a criminal case cannot refuse the assistance of counsel on direct appeal whereas Faretta v. California allows criminal defendants to proceed pro se for their own defense.
Rules
The U.S. Judiciary Act, the Code of Conduct for United States Judges, addresses the rights of the self-represented litigant in several places.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 affect pro se litigants. For example, the Judicial Council of California officially advocates treating self-represented litigants fairly. The California rules allow for accommodating mistakes by a pro se litigant that would otherwise result in a dismissal, if the case is otherwise merited. According to a June 2012 report from U.S. Courts, 18 of 94 federal district courts authorize use of alternative dispute resolution for pro ses and 11 authorize use of ADR by prisoner pro ses.
Electronic filings
Some districts of the United States federal courts permit pro se litigants to receive documents electronically by an Electronic Filing Account, but only members of the bar are allowed to file documents electronically. Other districts permit pro se litigants to file and receive their documents electronically by following the same local requirements as licensed attorneys for PACER NEXT GEN qualifications and approval for electronic use in particular cases; an order of the assigned judge on a pro se motion showing pro se's qualifications may be required. A 2011 report from the Federal Judicial Center found 37 of the 94 district courts allow pro se litigants to use ECF.Limits
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 shareholders, officers and employees. The Wisconsin Supreme Court has ruled that 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 within the term "any suitor."Similarly, a pro se litigant may not act as a class representative in a class action and therefore a pro se litigant may not bring a class action. Furthermore, a non-attorney parent may not appear on behalf of his or her child, except to appeal the denial of social security benefits to such child.
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.
Some federal courts of appeals allow unrepresented litigants to argue orally, and in all courts the percentage of cases in which argument occurs is higher for counseled cases. In 2013, the U.S. Supreme Court adopted a rule, Rule 28.8, that all persons arguing orally must be attorneys, although the Supreme Court claims it was simply codifying a "long-standing practice of the court." The last non-attorney to argue orally before the Supreme Court was Sam Sloan in 1978. Some lawyers, such as University of Chicago Law School professor Will Baude, have argued that the rule might not be legally valid, and could be challenged by a litigant who might want to appear pro se.
Some courts issue orders against self representation in civil cases. A court enjoined a former attorney from suing the new lover of her former boyfriend and colleague. The Superior Court of Bergen New Jersey also issued an order against pro se litigation based on a number of lawsuits that were dismissed and a failure to provide income tax returns in case sanctions might issue. The Superior Court of New Jersey issued an order prohibiting a litigant from filing new lawsuits. The Third Circuit however ruled that a restriction on pro se litigation went too far and that it could not be enforced if a litigant certified that he has new claims that were never before disposed of on the merits. The 10th Circuit ruled that before imposing filing restrictions, a district court must set forth examples of abusive filings and that if the district court did not do so, the filing restrictions must be vacated. The District of Columbia Court of Appeals wrote that "private individuals have 'a constitutional right of access to the courts', that is, the 'right to sue and defend in the courts'."
Effectiveness
In 2011, the Federal Judicial Conference surveyed federal court clerks offices regarding pro se issues. They found that only 17 of 62 responding judges report that discovery is taken in most non prisoner pro se cases and only 13 reported that discovery is taken in most prisoner pro se cases. In the same survey, 37% of judges found that most pro ses had problems examining witnesses, while 30% found that pro ses had no or few problems examining witnesses. 53% found that represented parties sometimes or frequently take advantage of pro se parties. Only 5% reported problems of pro ses behaving inappropriately at hearings. Respondents to the FJC study did not report any orders against non prisoner pro se litigation.Pro se litigants may have a lower chance of success. 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. According to Erica J. Hashimoto, then an assistant professor at the University of 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.