Cecily Zamora
Pro se legal representation is when an individual argues on their own behalf in a legal proceeding, rather than being represented by an attorney or counsel. The term comes from the Latin pro se, meaning for oneself or on behalf of themselves. Pro se representation is becoming more common in US courts, due to factors such as reduced funding for legal aid and increased divorce rates. While some courts have issued orders against self-representation, particularly in civil cases, pro se litigation is permitted in many jurisdictions, provided litigants comply with the relevant rules and procedures. This includes the requirement to file motions and briefs, serve copies of documents on opposing parties, and, in some cases, file and receive documents electronically. The success rate of pro se appeals varies, with lower success rates than represented appeals in civil cases, but comparable success rates in criminal cases.
| Characteristics | Values |
|---|---|
| Pro se legal representation | Arguing on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, or a defendant in criminal cases |
| Pro se litigants | More common in state and federal courts due to a fall in funding for federal legal aid, an increase in provision of limited legal assistance, and an increase in divorce rates |
| Filing and receiving documents | Some districts allow pro se litigants to file and receive documents electronically, following the same local requirements as licensed attorneys |
| Oral arguments | Some federal courts of appeals allow unrepresented litigants to argue orally, but the U.S. Supreme Court adopted a rule in 2013 that only attorneys can argue orally |
| Case outcomes | In Louisiana, the grant rate for civil appeals submitted pro se was 7% compared to 46% for counseled appeals; in criminal cases, 34% of pro se writs were granted vs. 45% for counseled writs |
| Court orders | Some courts have issued orders against pro se litigation, but other circuits have ruled that such restrictions are too extreme |
| Florida requirements | Litigants representing themselves in Florida must follow the Florida Rules of Appellate Procedure and may find the Pro Se Handbook helpful |
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What You'll Learn
- Pro se litigants may file and receive documents electronically in some districts
- Some federal courts allow oral arguments from unrepresented litigants
- The Supreme Court ruled that only attorneys can argue orally
- Some courts restrict self-representation in civil cases
- Pro se litigants may have access to ghostwriting, which can be an unfair advantage
Pro se litigants may file and receive documents electronically in some districts
Pro se litigants, or those who argue on their own behalf in a legal proceeding, have become more common in state and federal courts in the United States. While some districts allow pro se litigants to file and receive documents electronically, others are hesitant to do so. For example, the Northern District of California permits pro se litigants to e-file, offering free training on its website. The Northern District of Florida also permits pro se litigants to file and receive documents electronically, provided they follow the same local requirements as licensed attorneys for PACER NEXT GEN qualifications and approval for electronic use in particular cases. A 2011 report from the Federal Judicial Center found that 37 out of 94 district courts allow pro se litigants to use the Electronic Case Filing system (ECF).
However, many courts are reluctant to allow pro se filing in ECF. Prisoners, for instance, do not have access to the internet, so electronic filing is not feasible for them. Additionally, some courts have issued orders against self-representation in civil cases, such as the Superior Court of Bergen, New Jersey, which prohibited a litigant from filing new lawsuits.
The benefits of electronic filing for pro se litigants include having more time to respond to motions filed by the opposing side, as they can receive and review the motion immediately upon filing. However, there may be initial costs associated with acquiring the necessary hardware and software, and pro se litigants must be diligent in checking their email to ensure they stay up-to-date with filings and court orders.
Overall, while some districts allow pro se litigants to file and receive documents electronically, the approach varies across courts, with some expressing concerns about the feasibility and potential drawbacks of electronic filing for self-represented individuals.
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Some federal courts allow oral arguments from unrepresented litigants
Pro se legal representation means to argue on one's own behalf in a legal proceeding, rather than being represented by counsel or an attorney. The term comes from the Latin "pro se", meaning "for oneself" or "on behalf of themselves".
In the United States, some federal courts of appeals allow unrepresented litigants to argue orally. However, in 2013, the U.S. Supreme Court adopted Rule 28.8, which states that all persons arguing orally before the Court must be attorneys. This has been the longstanding practice of the Court, but some lawyers argue that the rule might not be legally valid and could be challenged.
The right to self-representation in court is not absolute and may be restricted in certain circumstances. For example, the Superior Court of New Jersey issued an order prohibiting a litigant from filing new lawsuits due to multiple dismissed lawsuits and a failure to provide income tax returns. The Third Circuit ruled that this restriction went too far and could not be enforced if the litigant had new claims.
The success rate of pro se litigants can vary depending on the court and type of case. For example, in 2000, the Louisiana Court of Appeals found that 7% of writs in civil appeals submitted pro se were granted, compared to 46% of writs submitted by counsel. In criminal cases, the gap was narrower: 34% of pro se writs were granted, compared to 45% of those submitted by counsel. In some cases, pro se defendants in state court have fared as well as, or even better than, their represented counterparts.
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The Supreme Court ruled that only attorneys can argue orally
Pro se legal representation means arguing on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, or a defendant in criminal cases, instead of being represented by counsel or an attorney. The term comes from the Latin "pro se", which means "for oneself" or "on behalf of themselves".
In 2013, the U.S. Supreme Court adopted Rule 28.8, which states that only attorneys can argue orally. The Supreme Court claims that this rule merely codifies a long-standing practice. The last non-attorney to argue orally before the Supreme Court was Sam Sloan in 1978. Some lawyers have argued that the rule might not be legally valid and could be challenged by a litigant who wishes to appear pro se.
While some federal courts of appeals allow unrepresented litigants to argue orally, the percentage of cases in which this occurs is higher for counseled cases. Additionally, some courts issue orders against self-representation in civil cases. For example, the Superior Court of New Jersey issued an order prohibiting a litigant from filing new lawsuits. In contrast, the Third Circuit ruled that a restriction on pro se litigation could not be enforced if a litigant certified that they had new claims that had never been previously disposed of.
The outcomes of pro se appeals vary. In 2000, 7% of writs in civil appeals submitted to the Louisiana Court of Appeals pro se were granted, compared to 46% of writs submitted by counsel. However, an empirical study of pro se felony defendants in state court found that these defendants fared as well as, and in some cases better than, their represented counterparts.
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Some courts restrict self-representation in civil cases
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 as a defendant in criminal cases, rather than being represented by counsel or an attorney. The term "pro se" comes from the Latin "pro se", meaning "for oneself" or "on behalf of themselves".
While pro se litigants have become more common in both state and federal courts, some courts restrict self-representation in civil cases. For example, the Superior Court of Bergen, New Jersey, issued an order against pro se litigation based on several lawsuits that were dismissed and a failure to provide income tax returns. The Superior Court of New Jersey prohibited a litigant from filing new lawsuits. However, the Third Circuit ruled that a restriction on pro se litigation could not be enforced if a litigant had new claims that were never previously addressed.
The 10th Circuit ruled that before imposing filing restrictions, a district court must provide examples of abusive filings, and if this is not done, the 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".
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, with 34% of pro se writs granted compared to 45% of writs submitted by counsel.
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Pro se litigants may have access to ghostwriting, which can be an unfair advantage
Pro se litigants are those who argue on their own behalf in a legal proceeding, rather than having representation from an attorney. The term comes from the Latin "pro se", meaning "for oneself" or "on behalf of oneself". In England and Wales, the comparable status is "litigant in person", while in Australia and Canada, the term is "self-represented litigant" (SRL).
Pro se litigants may have access to ghostwriting services, where an attorney writes legal documents for them without appearing on the record. This practice is permitted by the American Bar Association (ABA), which has issued opinions stating that ghostwriting does not give pro se litigants an unfair advantage. The ABA's Formal Opinion 07-446 (2007) and Formal Opinion 471 (2015) both conclude that nondisclosure of legal assistance is not dishonest or unethical and does not provide an unfair benefit to the litigant.
However, some courts and legal professionals disagree with this assessment. The Montana Bar, for example, expressed a hostile view of ghostwriting in its Opinion 101216 (2010), equating unbundled legal services with incompetence. Federal courts have also issued opinions finding ghostwriting unacceptable on ethical grounds, citing Rule 11 violations and concerns about giving pro se litigants an undue advantage over their represented adversaries.
The debate surrounding ghostwriting for pro se litigants centres on issues of fairness, ethics, and access to justice. Some argue that ghostwriting helps pro se litigants by providing them with legal expertise and improving their access to the justice system. Others contend that it gives ghostwritten pleadings an unfair advantage over those prepared by represented litigants, potentially prejudicing other parties in the proceeding.
While the practice of ghostwriting for pro se litigants is controversial, it is important to note that pro se litigants often manage to obtain good results even without this type of assistance. Furthermore, the availability of ghostwriting services may help address issues of access to justice, particularly in light of decreased funding for federal legal aid and increased divorce rates, which have contributed to the rise in pro se litigants.
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