"He who represents himself has a fool for a client," said Abraham Lincoln.
Despite the wisdom of the 16th president, representing oneself – "pro se" – is growing in popularity in American courtrooms.
Pro se legal apportionment derives from Latin, meaning "acting on behalf of themselves." A person with pro se legal participation is someone advocating for themselves in a court as opposed to being served by an attorney. Pro se may happen in court regardless of whether the person is the offender or plaintiff in a civil case, or if they are the accused in a criminal case.
There are pros and cons behind the legal doctrine, which has been used in America for centuries. Each case presents unique opportunities and challenges, and these should be weighed thoroughly before deciding that "going pro se" is the solution.
The National Center for State Courts' report, "Self-Representation: Pro Se Statistics," points out that many state jurisdictions, as well as courts at the federal level, are seeing a growth in the number of pro se litigants. The report estimates the rate in California to be 67%, 73% in Florida and over 65% in Wisconsin.
In federal courts, roughly 25% of civil actions lodged, 90% of prisoner requests and 10% of non-prisoner pleadings were submitted by claimants choosing to go the pro se route.
Long History in America
The right of a person to represent their cause precedes the adoption of the Constitution in America.
In Faretta v. California, America's Supreme Court ruled that defendants have the constitutional liberty to refuse counsel in state proceedings. However, the right to self-represent is not complete: The court always maintains the moral duty to decide if a person is competent for self-representation.
The majority of states have a provision in the state constitution, which either expressly permits self-representation or outlines instances in which the procedure is not appropriate.
Pro Se Representation in Criminal Cases
Pro se representation offers unique but not insurmountable challenges for the legal system. In 2000, 7% of writs in civil cases that were submitted to courts in Louisiana were granted, compared to 47% when presented by counsel. In criminal cases, the ratio was narrower: 35% of pro se writs were allowed as compared to 44% of those submitted by counsel.
Erica J. Hashimoto, a professor at the Georgia School of Law, conducted a study in which she found that pro se defendants fared better than their represented counterparts. Hashimoto reviewed 235 cases. Of those, 50% were convicted; of an almost equal number of cases in which the defendants represented themselves, 26% of the pro se defendants would end up with felony convictions.
Pro Se Representation in Civil Cases
Self-representation is common in civil cases. For example:
- In New Hampshire, one party is pro se in 85% of all civil cases at the district level, and in almost 50% of all cases at the superior court level.
- A California study found that two-thirds of all domestic relations cases and 40% of all child custody hearings had at least one pro se party.
Notable Pro Se Cases
There are some cases that stand out for pro se plaintiffs:
- Robert Kearns, the creator of the intermittent windshield wiper, won over $10 million from Ford for patent infringement.
- Dr. Julio Perez won over $5 million in a federal trial against Progenics Pharmaceuticals over wrongful termination.
- George M. Cofield, a janitor, was awarded $30,000 in a case against the City of Atlanta.
Limitations of Pro Se Representation
The ability of an individual to appear in court without a lawyer when litigating or advocating a civil action is decided by state law. Even then it varies, subject to the court's ruling.
- A broadly followed law keeps corporations from being served by non-attorneys. For example, Wisconsin's supreme court ruled that a "non-lawyer" may not endorse and register an appeal in support of a company. The supreme court in Washington ruled that requiring a lawyer to represent a corporation does not violate the guarantee that any individual may prosecute or defend themselves.
- A pro se litigator cannot act as a group councilor and cannot bring a group-wide action. A non-attorney parent may not go to court on behalf of their child, unless the action is to contest the rejection of a child's social security interests.
- Another situation in which counsel is required involves the executor of a probate inheritance. Unless the agent is an attorney, they are not permitted to represent themselves in interests other than probate.
- Formerly, federal courts of appeal often permitted unrepresented claimants to debate orally. That changed and in 2013, the American Supreme Court approved a rule requiring that all persons arguing orally must be lawyers.
- Some courts have issued directions opposing self-representation in non-criminal cases. For example, New Jersey's superior court announced an order banning pro se litigation because of the volume of lawsuits eventually dismissed.