Just the Facts: Trends in Pro Se Civil Litigation from 2000 to 2019
Just the Facts is a feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to JDAO.
Most federal pro se cases are civil actions filed by people serving time in prison. Pro se prisoner petitions spiked in 2016 after a pair of Supreme Court rulings made it possible for certain prisoners to petition to have their sentences vacated or remanded. Non-prisoners who file pro se actions most often raise civil rights claims.
The legal term pro se, which refers to self-representation in a court of law, is directly translated from Latin as “for oneself” or “on one’s own behalf.” Each time a party to litigation appears in court without the assistance of counsel, the court proceeding is called pro se. A party to a lawsuit may hire an attorney and terminate pro se status at any time.
All state courts have some form of written or precedent-based rules that allow pro se representation. In federal courts, the rights of self-represented litigants are addressed in 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, the Federal Rules of Appellate Procedure, and the Federal Rules of Bankruptcy Procedure. Bankruptcy petitioners, parties in appeals cases, and criminal defendants may also represent themselves1. This article focuses on civil pro se filings in the U.S. district courts2.
Facts and Figures
- Figure 1 displays the total number of civil cases filed in U.S. district courts from 2000 to 2019 by pro se litigants, relative to the overall civil caseload. During that period, civil pro se filings generally were relatively stable, except for a 20 percent increase in 2016.
- Figure 2 shows that the rise in 2016 stemmed from prisoner petition filings brought in federal court by inmates in federal or state prisons under certain conditions. As noted above, prisoner petition filings increased in 2016 after the Supreme Court decided in Welch v. United States, that Johnson v. United States applied retroactively, which made prisoners serving sentences that were enhanced under an unconstitutional clause of the Armed Career Criminal Act eligible to have their sentences vacated or remanded3. After 2016, nationwide filings of pro se prisoner petitions dropped to levels seen prior to the Welch decision.
- The Federal Rules of Civil Procedure permit both sides—the plaintiff and the defendant—to proceed pro se in federal court. In federal civil litigation, the self-represented party predominantly is the plaintiff. Figure 3 shows the percentage of civil cases filed from 2000 to 2019 by type of representation. During that period, 27 percent of all civil cases had at least one pro se plaintiff or defendant4.
- A civil case can be categorized by the type of lawsuit5. Figure 4 presents totals for types of civil pro se cases filed from 2000 to 2019. The types of lawsuits most frequently filed were pro se prisoner petitions and civil rights cases. Prisoner petitions constituted 69 percent of the civil pro se caseload. Civil rights actions accounted for 14 percent of the civil pro se caseload.
- The majority of prisoner petitions are filed pro se. Figure 5 shows that from 2000 to 2019, in 91 percent of prisoner petition filings, the plaintiffs were self-represented. In contrast, only 11 percent of non-prisoner civil case filings involved plaintiffs and/or defendants who were self-represented.
- For pro se civil cases filed by non-prisoners, the proportions of plaintiffs and defendants representing themselves varied according to the type of lawsuit. For most categories, pro se plaintiffs outnumbered pro se defendants. Figure 6 presents data on pro se civil cases filed by non-prisoners by the type of lawsuit from 2000 to 2019. During that period, the category with the highest number of filings involving pro se defendants was contract actions, followed by real property, and other statutes. The category with the highest number of filings involving both pro se plaintiffs and pro se defendants was civil rights.
- Figure 7 shows the total percentage of pro se filings by type of lawsuit, relative to the overall pro se caseload. For most of the categories of these pro se civil cases, more than 50 percent of cases filed involved only pro se plaintiffs. In only three categories did more than 50 percent of cases involve only pro se defendants. Seventy-six percent of pro se forfeiture/penalty cases had self-represented defendants, as did 58 percent of pro se contract action cases and 66 percent of pro se intellectual property cases.
- From 2009 to 2012, filings of pro se civil cases by non-prisoners increased every year. Figure 8 displays data on such filings for each year, 2000 – 2019, by type of lawsuit. The majority of the growth during this period was caused by increased filings of civil rights cases and real property cases. Filings dropped in 2013, the same year that pro se real property case filings started to decline for the first time in five years.
- Pro se cases require extra court resources for processing6. Courts are allocated pro se law clerk positions to screen and process pro se cases and courts generally provide resources and instructions designed specifically to assist pro se filers7. Map 1 is an interactive map showing the pro se case filings by prisoners and non-prisoners by year and district across the country.
Note: Click on the tabs below to view the figures and map.
1 For more information about filing bankruptcy without an attorney, please see https://uscourts.gov/services-forms/bankruptcy/filing-without-attorney.
2 For a more in-depth analysis on this topic, please see: Gough, M., & Taylor Poppe, E. (2020). (Un)Changing Rates of Pro Se Litigation in Federal Court. Law & Social Inquiry, 45(3), 567-589.
https://www.cambridge.org/core/journals/law-and-social-inquiry/article/unchanging-rates-of-pro-se-litigation-in-federal-court/21434F32D9DB2AC89C42433F926CBFAC. The article covers pro se filings from 1999 to 2018, examining patterns across circuits, case types, and procedural progress outcomes.
3 For more information about these Supreme Court decisions, see:
Johnson v. United States, 576 U. S. ____ (2015)
Welch v. United States, 578 U. S. ____ (2016)
Office of the General Counsel. Selected Supreme Court Cases on Sentencing Issues. November 2019. https://www.ussc.gov/sites/default/files/pdf/training/case-law-documents/2019-supreme-court-cases.pdf. Retrieved August 13, 2020.
4 Filing counts from the Federal Judicial Center’s Integrated Database (IDB) collects termination and pending case data. As a result, filing counts form the IDB may not match filing counts in the published tables of the Administrative Office of U.S. Federal Courts.
The Federal Judicial Center’s Integrated Database: https://www.fjc.gov/research/idb
Statistical Tables for the Federal Judiciary: https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables
6 Wood, Jefri. 2016. Pro Se Case Management for Nonprisoner Civil Litigation. Washington, D.C.: Federal Judicial Center. https://www.fjc.gov/sites/default/files/2017/Pro_Se_Case_Management_for_Nonprisoner_Civil_Litigation.pdf. Retrieved August 13, 2020.
7 Stienstra, Donna, Jared Bataillon, and Jason A. Cantone. Assistance to Pro Se Litigants in U.S. District Courts: A Report on Surveys of Clerks of Court and Chief Judges. 2011. Federal Judicial Center. https://www.fjc.gov/sites/default/files/2012/ProSeUSDC.pdf. Retrieved August 13, 2020.