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IN-DEPTH: Leveling the Playing Field: Help for Self-Filers
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Last year, nearly 73,000 people filed civil cases in federal courts without a lawyer, a number that, for non-prisoner filers, has grown steadily in recent years. People file "pro se"—Latin for "on one's own behalf"—because of indigence or by choice. About two-thirds of all pro se cases are filed
"Who are pro se filers? The short answer is they often are litigants who can't afford an attorney," said Judge A. Howard Matz (C.D. Calif.), who supports assistance programs for pro se filers in the Central District of California. "Increasingly," he adds, "we also see pro se litigants who are defendants in cases, not just plaintiffs." These may be individuals sued by corporations in intellectual property rights cases, or by banks in foreclosure cases, for example.
"It is my duty as a judge to hear from both sides, to follow procedures, and to rule correctly and fairly on a level playing field," said Matz. "But pro se filers often are confused, frightened, and lacking the confidence to negotiate what is a complicated system."
Sixty percent of the courts responding to the survey provide training for clerk's office staff on how to deal with pro se litigants. Nearly all the district have trained staff in the kinds of assistance they may provide.
What is being done to help these litigants? What resources are available for pro se litigants—either at the courthouse or on-line? What different approaches are taken by courts to assist pro se filers? The Judicial Conference Committee on Court Administration and Case Management (CACM) asked the Federal Judicial Center (FJC) to survey chief district judges and clerks of court on the assistance their district courts provide to pro se litigants.
"As district courts face the challenges of managing and adjudicating cases filed by prisoner or non-prisoner pro se litigants, which encompass more than 25 percent of the civil cases, CACM thought that a survey of creative and best practices employed by a number of courts would well serve and inform all courts," said Judge Julie Robinson (D. Kan.), CACM chair.
A review of the FJC's survey of clerks of court suggests that assistance for non-prisoner pro se litigants in the courts is both highly visible and accessible–starting on-line and in the clerk's office.
The most common form of help by the clerk's office for pro se litigants is procedural assistance by office staff, who must remain mindful of the prohibition against giving legal advice. Most districts spread the responsibility for pro se cases across all clerk's office staff, although 27 percent of the courts surveyed have two to five staff members with substantial responsibility for pro se cases.
In the public areas of clerks' offices, pro se litigants will find a variety of resources and services, either on paper or on the district's website. They can learn about the jurisdiction of the federal courts, how to access the Judiciary's Case Management/Electronic Case Files (CM/ECF) system and how to protect private information in papers filed with the court. Some courts also provide sample or template pleadings, motions and discovery requests, and compile frequently asked questions for pro se filers.
"The Eastern District of Missouri also maintains a Self Help Resource Center in the clerk's office with access to the E Pro Se Computer program. It is a quiet place to compose documents and gather information about bar association lawyer referral services and a wide variety of community programs. Visitors also have access to publications and guide materials that explain court procedures and topics on substantive law."
The clerk's office often is the best place for a non-prisoner pro se litigant to find a handbook or information package developed to help pro se litigants. Eighty percent of the 90 district court clerks responding to the FJC survey reported that their districts make such materials available at the clerk's office. For prisoner pro se litigants, 70 percent of the responding districts will mail them a copy of such materials. Need to know about local rules and procedural forms? The information is readily available, usually on a court's website.
Eighty-four percent of the clerks reported that their districts provide free public access to computers in the clerk's office. On these computers, 67 percent of the districts provide access to CM/ECF. Half provide access to their own website and to PACER. While computer access is free, most courts charge a fee for printing from the computers.
In 41 percent of the district courts responding, non-prisoner pro se litigants may file electronically through CM/ECF, and in 39 percent of the courts they may access the docket and pleadings in an on-going case through CM/ECF. A small percentage of courts, 11 percent, also provide e-filing software on the public access computers to assist pro se filers in preparing pleadings or other submissions.
In the Eastern District of Missouri, pro se litigants have help from a user-friendly, interactive web application called E Pro Se. Through the user's responses to a series of questions, the essential information is pulled together into a document that tells the court about the type of claim. Typically, the software is used to create documents required for Social Security, employment, and civil rights complaints. It's available online, so pro se filers can use E Pro Se anywhere they have internet access, and only need to visit the court to file the document.
" . . . A disturbingly large number of litigants come to the Clinic with basic reading and comprehension problems; some cannot even read Court orders and the opposition's filings. Others can decipher the words in the documents but cannot comprehend even the simplest of Court orders."
Non-prisoner pro se litigants in a number of courts will encounter warnings that their case may be dismissed if they fail to file all the necessary documents, fail to file on time, or fail to pay any required fees.
For that reason, a little over half of the district courts appoint counsel to represent a pro se litigant for the full case, with 56 percent of the districts also appointing counsel in limited circumstances, such as in a mediation or trial. Fifty-five percent of the districts do both. A quarter of the districts have a provision in their local rules for payment of costs. Forty-nine percent of the courts conduct a review to determine the need for counsel. A third of the courts also provide pro se litigants with handouts or a web notice about obtaining free or low-cost legal services or information about retaining an attorney. Local rules or general orders in 14 percent of the districts require pro bono service from members of the bar; 21 percent maintain pro bono panels or lists of attorneys willing to serve on a pro bono basis. A small number of courts maintain an automatic e-mailing list to alert the bar to a case needing representation. Altogether, 90 percent of the ninety clerks responding to the survey report that their districts have taken one of these steps to help pro se litigants find pro bono counsel.
Help Desks & Guides for
Pro Se Litigants
In FY 2010, the Central District of California had the highest number of pro se filers of all federal district courts. The district's website welcomes these filers to the court with information organized by topic, with links to court forms, and with a helpful brochure.
The website also directs individuals representing themselves to the Pro Se Clinic located in the U.S. Courthouse in downtown Los Angeles. The Clinic is staffed by a nonprofit public interest law office, Public Counsel. The Clinic's attorneys, who are not court employees or officials, provide information about the procedures, filing requirements, and deadlines involved in a federal civil lawsuit; general guidance on how to draft complaints, responses, motions and other pleadings; answers to jurisdiction and venue questions; information about discovery procedures; and alternatives to litigating in federal court. According to the Clinic's first annual report, covering the period from February 2009 to February 2010, most of the substantive issues raised by Clinic visitors arise from foreclosures and civil rights, employment discrimination, and intellectual property claims.
Pro se litigants in the U.S. District Court for the Northern District of Illinois may make an appointment at the clerk's intake desk to see an attorney in the court's Pro Se Assistance Program. With special funding from the Chicago Bar Foundation, attorneys from the Legal Assistance Foundation of Metropolitan Chicago provide pro se litigants with information about federal court procedure; assistance preparing certain pleadings, motions, or other court documents; and help in accessing other sources of information about legal issues.
About a fifth of the districts responding to the survey have established mediation procedures for non-prisoner pro se litigants; a smaller number also provide mediation for prisoner pro se litigants.
The Northern District of Illinois' program was the model for a program initiated by Federal Court Bar Association of the Northern District of New York where the bar maintains an office and employs a program manger to oversee volunteer attorneys who assist civil pro se litigants. "We've found that, of those who filed claims with the court, the pleadings were more properly constructed, saving time for both chambers and the clerk's office," said Clerk of Court Larry Baerman in the Northern District of New York.
To help un-represented individuals filing for bankruptcy in the District of New Jersey, the bankruptcy court there has developed and is piloting a web application, Pro Se Pathfinder.
"After BAPCPA, filing for bankruptcy became more expensive for individuals," said Bankruptcy Clerk of Court Jim Waldron, "while fewer bankruptcy lawyers were available to take a case. Our pro se initiative was our way of making filers aware of what it takes to file a petition while improving the accuracy of the data they submit in their petitions. It is as comprehensive as we could make it with references to every resource we could find. We were careful not to cross the 'legal advice' threshold that all clerks' offices must avoid."
In the pilot, unrepresented filers entering the court's web page find information and forms they'll need to file. By responding to a series of questions, they may electronically complete and submit a bankruptcy petition. "It's a fine balance," Waldron admits. "Bankruptcy is so very complicated, we don't encourage individuals to file without an attorney. But so many pro se filers come in with petitions that are all wrong. At least this gives structure to their filing."
In the District of Arizona, approximately 20 percent of all bankruptcy litigants file pro se.
The U.S. Bankruptcy Court for the District of Arizona sponsors a "self-help center" in the Tucson and Phoenix courthouses staffed by volunteer lawyers from the local bar.
"Due to the complexity of the bankruptcy means test and how complicated the process of filing for bankruptcy is, most people get some kind of help filing—sometimes on the Internet or through individuals who specialize in filling out bankruptcy forms," said Bankruptcy Judge Eileen Hollowell (D. Ariz.). "But 'help' may not mean competent help. The question is, how do we get people information they can and will use to help them make good choices."
The U.S. Bankruptcy Court for the District of Arizona sponsors a "self-help center" in the Tucson and Phoenix courthouses staffed by volunteer lawyers from the local bar.
"We make a lot of information and help available at the clerk's desk for pro se filers," said Hollowell, whose district also has a law clerk help coordinate pro se services. "Before they see an attorney at the help center, we ask pro se filers to watch an online video on bankruptcy. Frankly, it is in the court's self interest to provide pro se filers with as much information about the process as possible. Sometimes, though, as a bankruptcy judge I can only continue the matter for 30 days, give them the number of the self-help center and hope they make the contact."
The Administrative Office Bankruptcy Judges Advisory Group (BJAG) has developed a Judiciary website just for pro se bankruptcy filers at www.uscourts.gov/bankruptcycourts/prose.html. The website is straightforward about the complexities of a bankruptcy case, and the desirability of proceeding with an attorney. For example, under current bankruptcy law, prepetition credit counseling generally is required. Failure to get counseling before filing the petition commencing the case may result in dismissal of the case. As the website warns, "While individuals can file a bankruptcy case without an attorney or 'pro se,' it is extremely difficult to do it successfully."
Although the courts of appeals were not surveyed, last year 27,209 appeals involved pro se litigants. The largest source of pro se appeals are prisoner petitions.
BJAG also has written a guide, "Assisting Pro Se Parties in Bankruptcy Cases," just for bankruptcy courts. The guide highlights some of the things bankruptcy courts can do to educate pro se filers, the filing information and services filers may need, and where best to make the guidance available to reach the pro se audience.
Prisoner Pro Se
Generally fewer online resources are available to prisoner pro se litigants, who file one fourth of all civil cases annually. Prisoners filing pro se who do not have internet access must rely on the courts to mail such materials as the rules of federal procedure or forms. Seventy of the 90 districts surveyed did not know if prisoners had access to a computer. Twenty districts reported that prisoners' access is limited to preparing pleadings and conducting legal research. None of the districts reported that prisoners had access to the court's website, PACER or CM/ECF.
Some districts follow the example of the Eastern District of Pennsylvania which sends forms and information on the federal judicial system to the federal and state correctional institutions, where they are made available to inmates in the prison library. The district, where 16.5 percent of all non-asbestos civil cases are filed by prisoners, also has a local rule that assigns all pro se civil rights cases filed by an individual to the same judge. "This gives a judge a familiarity with the plaintiff and his or her case," said Clerk of Court Michael E. Kunz. It also helps identify frequent or frivolous filers.
In the mid-1970s, as the number of prisoner pro se petitions began to increase substantially, the Judicial Conference began a pro se law clerk pilot program to assist the courts with this litigation. Today, nearly all districts have permanent pro se law clerks to help prisoner pro se litigants and 28 percent of the districts limit their work to those cases. Unlike attorneys who represent their clients, pro se law clerks assist the court by helping pro se filers understand the rules, the process of filing and how to move a complaint through the court system.
Over the years, pro se law clerks
have become experts at helping to expedite cases, save judges time, and assist their courts in fully and fairly addressing each petition.
According to the survey, 30 of the 90 respondents reported that their districts are currently developing other measures to assist with pro se litigation. Many will revise, expand, or create information items or systems—for example, update handbooks, and create a pro se website. Others will expand or create various forms of personal assistance—for example, create a pro se help desk staffed by pro bono attorneys, develop a more formal pro bono panel, and create a more formal mediation process. Nine of the respondents indicated their districts are exploring use of e-filing. One district is setting up a Pro Se Committee to deal with issues raised by the public and the bar. The CACM Committee hopes that the FJC survey findings, with examples of programs and services provided by district courts, will prove useful to courts looking for more ways to help their pro se litigants.
Pro Se E-Filing for Prisoners
To help with the mountain of paper generated in a prisoner petition—sometimes as many as 50 copies of a document to serve each named defendant—the U.S. District Court for the Central District of Illinois began a project with the Illinois Department of Corrections (IDOC) to receive prisoner filings electronically.
The prison library staff scan the inmate's document into a digital sender, which converts to PDF format and emails the document to the court. Case managers then e-file in CM/ECF. The Central and Southern Districts of Illinois have partnered on this project and expanded to nine IDOC facilities. Originally, the project was intended to handle prison petitions challenging an inmate's conditions of confinement or other alleged civil rights violation, but now includes other types of action, such as habeas corpus petitions.