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Pro Se Law Clerks: A Valuable Resource
Marnie Jensen has a perception problem to overcome when she describes her job in the federal Judiciary. “People outside of the court think a pro se law clerk represents people who don’t have attorneys,” she said. “That’s not what we do. We work for the court on cases with people who don’t have lawyers, and who often don’t understand the rules or the process. That’s a big distinction.” For Jensen, a pro se law clerk in the District of Nebraska, that means she is the first to see prisoner civil rights cases, prisoner habeas corpus cases, section 2255 motions, and certain non-prisoner pro se cases such as employment or age discrimination cases filed in Nebraska’s federal court.
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“We treat every complaint exactly the same, assisting our judges to ensure that every single claim is addressed fairly and fully,” Jensen said. “One of our pro se cases might end up being the next Miranda case. You just never know.”
Last year, 72,900 pro se cases were filed in district courts; 48,581 of which were pro se prisoner petitions. Starting in the 1960s, district courts began to see an enormous increase in prisoner petitions, which went from 2,000 in 1960 to over 19,000 in 15 years. To help, a 1975 pilot program established pro se law clerk positions in a few of the courts inundated with prisoner complaints.
In 1981, the Judicial Conference approved an expanded pro se law clerk program, after a study showed, “cases were expedited, the time of judicial officers was conserved, a consistency in decision was obtained, and the program was cost-effective.” A 1987 Conference resolution recognized that, “The pro se law clerk program has been a valuable and cost-effective legal resource which works in a centralized manner for a district court as a whole. . . . Pro se law clerks provide services which do not duplicate, but rather complement, the assistance provided by personal law clerks or legal assistants.”
Although pro se law clerks began by handling pro se prisoner petitions, over the years in some courts they also have included other types of pro se cases in the workload mix in their service to the courts.
“So many of the skills pro se law clerks develop handling prisoner petitions come in handy in other types of pro se cases,” said Judge Catherine Blake in the District of Maryland. “Our pro se law clerks have developed forms and the instructions to go with them for pro se filers. They help pro se litigants navigate the system. They save chambers time with initial screening and help judges identify the cases that have merit. They also do a great job of keeping up with changes in case law. For instance, they’re familiar with the legal issues involved in habeas cases. They absolutely save us time and promote efficiency. ” In fact, in the District of Maryland, pro se law clerks are called staff attorneys to better reflect their status and level of experience.
Starting in the 1960s, district courts began to see an enormous increase in prisoner petitions, which went from 2,000 in 1960 to over 19,000 in 15 years.
“Pro se law clerks are of enormous value in our district,” said Magistrate Judge Boyd N. Boland in the District of Colorado. Last year, one-third of the 3,168 civil actions filed in the district were pro se cases, and the overwhelming majority of those were pro se prisoner petitions.
“Pro se litigation is very specialized and the level of review required is enormous,” Boland said. “The pro se law clerks review for in forma pauperis status, to see if some or all of the fees could be paid; they review the filing for sufficiency of pleading; for timeliness; if it’s a habeas corpus case, for exhaustion of administrative remedies; and they help us determine if it is frivolous.”
“Pro se cases make up 40 percent of our civil caseload and our pro se law clerks review and prepare draft orders on each one,” said Chief Judge Lynn Winmill of the District of Idaho. “We’re a very busy district and I don’t know how we’d function without them.”
The District of Idaho’s prisoner litigation unit handles prisoner pro se work from initial review, all the discovery work, and all dispositive motions. The court also frequently turns to alternative dispute resolution (ADR). “We’ve had lots of success with ADR in prisoner pro se petitions,” said Winmill. “The pro se law clerks identify cases amenable to settlement early in the case-screening process. When a neutral facilitator sits down with a deputy attorney general and a pro se litigant to find a solution, many cases resolve quickly.”
Janis Dotson-Thieme has been a pro se law clerk in the District of Idaho for 11 years. “I think the biggest eye-opener for me in this job was that there is a huge segment of society needing access to the courts,” Dotson-Thieme said. “These are people who can’t afford a lawyer and they may not be able to articulate their claim very well, but we will take the time to carefully review each of their petitions to see if there is a claim. We ensure everyone receives the same protection under the Constitution.”