Pro se legal representation (/ˌproʊ ˈsiː/ or /ˌproʊ ˈseɪ/) 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".
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.
In Faretta v. California, 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.
That said, the right to represent oneself is not absolute.
It is the Court's right and duty to determine if a particular individual is capable of representing himself, and can inquire into the individual's lucidity and mental status to make that determination
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.
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."
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.
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."
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".The committee notes to the Federal Rules of Civil Procedure rule 56 on summary judgements notes that
"Many courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed.
And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant."
Starting November 1, 2011, the Federal Court for the Central District of California permits pro se litigants to receive documents electronically by an Electronic Filing Account (ECF). As of May 16, 2013, they are still prohibited from filing their documents electronically unlike litigants represented by counsel.
The November 1, 2011 policy of the Central District of California is a cost-saving measure for the court. All they have to do is send in the form, have a PACER account, and provide a valid email address.
According to a June 2012 report from U.S. Courts, 18 of 94 federal district courts authorize use of ADR (Alternative Dispute Resolution) for pro ses and 11 authorize use of ADR by prisoner pro ses. Thirty seven of the ninety four federal districts allow pro se litigants to use ECF.
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 shareholders, officers and employees.
The Wisconsin Supreme Court has stated: "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.”
Similarly, a pro se litigant may not act as a class representative in a class action lawsuit 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 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.
The Connecticut Supreme Court narrowed criminal defendant's right to self representation, stating that "we are free to adopt for mentally ill
or mentally incapacitated defendants who wish to represent themselves at trial a competency standard that differs from the standard for determining whether such a defendant is competent to stand trial".
A Senior Assistant State’s Attorney explained that the new standard essentially allows judges to consider whether the defendants are competent enough to perform the skills needed to defend themselves, including composing questions for voir dire and witnesses.
Some courts issue orders against self representation in civil cases. A court enjoined a former attorney from suing the new lover of her former attorney.
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 in federal court.
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'.
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.
Some pro se litigants who are federal prisoners are subject to the Prison Litigation Reform Act. The American Civil Liberties Union (ACLU) has 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.”
54% of judges responding to a Federal Judicial Conference survey use videoconferences for prisoner pro se hearings.
In criminal court
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.
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.”
Since an independent evaluation of the cases is difficult, this study can by design not distinguish whether defendants without representation face a greater challenge or whether defendants are more likely to choose representation when in doubt of the merit of their case.
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