Pro Se Litigation: A View from the Bench

The Bencher—July/August 2017

By Judge Kristen L. Mix

For the past five years, approximately 20 percent (roughly 650 cases) of the civil docket of the U.S. District Court for the District of Colorado has consisted of pro se litigation. Representative subjects include prisoner and non-prisoner civil rights, employment, personal injury, contract and property disputes. The overwhelming majority of non-prisoner pro se litigants have no previous litigation experience, and few, whether incarcerated or not, appear to have post-secondary educational training. Many struggle with mental health issues, the ability to articulate thoughts and feelings, and the ability to communicate in writing. Virtually all lack the financial resources necessary to obtain counsel; many request (and receive) permission to appear in forma pauperis, so that payment of the filing fee may be waived.

Federal civil litigation is a complex process; pro se litigants often struggle mightily with a system they do not understand. Concepts like subject matter jurisdiction, stating a cognizable claim, appropriate discovery, and proof of damages can be challenging for lawyers, thus it comes as no surprise that those without legal training stumble when faced with the ordinary requirements of federal court litigation. Many pro se litigants appear to throw themselves on the mercy of the court, clinging to their plea for justice like a life preserver in a sea of uncertainty.

The court very often shows mercy, but at the end of the day, it cannot do so at the expense of the procedural and substantive requirements applicable in every case. Nevertheless, the time and energy spent by the court on making sure that every pro se litigant has every reasonable opportunity and tool to stay afloat in the variable seas of federal court litigation is truly staggering. Employees who work in the clerk’s office attempt to provide procedural guidance without crossing the line into giving legal advice. They routinely answer questions about what happens after a case is filed: When will the judge review my filings? How long does the judge have to do that? Will the judge schedule a hearing? When will the defendant be served? What does this Order mean? What do I need to do next? How can I talk to the judge? What should I do if the judge isn’t fair? Providing answers to those questions without dispensing legal advice is no easy task.

The court’s efforts to help keep pro se litigation afloat do not stop there. A team of six attorneys, led by Magistrate Judge Gordon P. Gallagher, reviews all in forma pauperis and prisoner complaints and makes efforts to handle problems before the cases are assigned to judges in the regular civil draw. These dedicated attorneys also balance the obligation to construe pro se filings liberally against the prohibition on providing legal advice. Gallagher routinely issues corrective orders designed to assist pro se litigants in meeting legal requirements, but neither he nor the pro se attorneys are able to help fill out a form or provide detailed instructions about how to file a motion to proceed without payment of fees.

They have no expertise in diagnosing and dealing with mental health issues, and they are often called on to address pro se litigants’ perception of bias in the system, whether founded or unfounded. They cannot provide free computer use, other technology like scanners or photocopiers, or unravel difficulties in sending and receiving pleadings through the U. S. Postal Service. Although they can and do suggest that the court lacks jurisdiction over certain claims, they are unable to explain that the litigant has filed her claim in the wrong court or what she needs to do to exhaust administrative remedies before bringing suit. Among their most frustrating experiences is handling situations where a pro se litigant appears to have a valid claim, but fails to comply with court orders, rules, or instructions about the requirements of proceeding pro se.

District and especially magistrate judges spend countless hours on pro se litigation as well. Not a day has passed in my nine years on the bench when I have not addressed a pro se issue of one sort or another and anecdotal evidence indicates that magistrate judges have the same experience. To demystify the litigation process, I send a letter to all pro se litigants attempting to explain their most basic responsibilities, which I also review during the scheduling conference. Like my colleagues, I try to write orders in plain English to assist pro se litigants in understanding my directions and conclusions. I liberally construe their pleadings, explain the four basic discovery tools (depositions, interrogatories, requests for production and requests for admission) in scheduling conferences, explain what to do about discovery disputes, and generously permit extensions of time and requests to amend when warranted under the rules. Every time a pro se litigant misses a claim or defense, a deadline or an important argument, the mission of the court to serve justice suffers a blow.

At the same time, perhaps the greatest tragedy of pro se litigation is the perception that often results from the inability of the court to provide legal advice to pro se litigants. When their need for legal advice is unfilled, many pro se litigants come to believe that the court is hostile and uncooperative towards parties who represent themselves. Ultimately they lose trust in the system, and believe that justice is only for those who can afford to pay a lawyer. In a country with our founding principles and history, this is simply not acceptable.

Federal courts across the country are experiencing very high volumes of pro se litigation. The Administrative Office of the United States Courts recently issued a report on workable approaches to pro se litigation, and the Judicial Conference of the United States adopted a pilot project for electronic filing by pro se prisoners in federal prisons. Here in Colorado, the court’s Pro Bono Panel program is one attempt to link lawyers to litigants to ensure that justice is served. Another is the “Guide to Civil Lawsuits,” recently produced by the court’s Standing Committee on Pro Bono Litigation and now also available on the court’s website www.cod.uscourts.gov. The court’s Local Attorney Rule 2(b)(1) was amended effective December 1, 2014, to allow limited representation of unrepresented prisoners in civil actions; information about how to do so is also available on the court’s website. The court has formed a Pro Se Working Group to discuss ideas for managing pro se litigation. One idea involves opening a pro se clinic, where litigants could receive advice from a staff lawyer or paralegal about the kinds of routine questions frequently asked of our clerk’s office staff, as well as assistance with pleadings and discovery to avoid the pitfalls regularly addressed by the pro se attorneys. Court staff and judges could refer litigants to the clinic, and in appropriate situations the clinic could refer clients to other resources better suited for addressing their needs, like housing authorities, mental health and substance abuse treatment, job banks, and similar services available to the public.

Abraham Lincoln said, “Law is nothing else but the best reason of wise men applied for ages to the transactions and business of mankind.” [Recollected Words of Abraham Lincoln compiled and edited by Don E. Fehrenbacher and Virginia Fehrenbacher (Stanford, Stanford University Press, 1996), p. 243.] I believe Lincoln’s point was that the law has developed to regulate our interactions in a wise and just way; justice is the faithful application of the law. In America in 2017, meaningful access to “the best reason” of wise people should not depend on wealth, but it often does. In a blog post for the ABA Journal, Juan Carlo Botero, director of the Rule of Law Index Project, is quoted as saying, “The U.S. legal system is similar to its medical system; in many aspects it is the best in the world, but many people don’t get any services at all.” [“Unequal Justice: U.S. Trails High-Income Nations in Serving Civil Legal Needs,” by Stephen Seidenberg, ABA Journal, June 1, 2012, www.abajournal.com.] A system of justice that is, for practical purposes, available only to elite individuals and corporations undermines the rule of law. And when the rule of law is undermined, anarchy results.

For lawyers and the litigants they represent, pro se litigation has another important consequence: delays in adjudicating fully-lawyered cases. There is no shortage of sayings to bring the reality of this situation home, so I will mention just two that should resonate: “Time is money” and “Justice delayed is justice denied.” As the number of pro se cases continues to rise, delays in adjudicating all cases on the docket will necessarily increase, absent the provision of additional judicial resources to handle increased filings. Thus, if you would like to help move your case through the court most efficiently and effectively, think about these options: (1) Join a pro bono panel and accept assignment of a pro bono case; (2) Mentor another lawyer in your firm who is handling a pro bono case; (3) Get involved with efforts to improve service to pro se litigants through the Faculty of Federal Advocates, Colorado Bar Association, or Colorado Lawyers Committee; and (4) Volunteer to help at one of the many bar-sponsored events relating to providing pro se assistance, such as the Colorado Women’s Bar Association’s or Colorado Lawyers Committee’s Legal Night. Doing so will not only improve your legal skills, but will provide an opportunity to see that justice is served for those most in need.

[Author Note: I would like to express my gratitude to the following for their assistance with this article: Jeffrey P. Colwell, Esq., Andrea Garcia Gallegos, and Nicole Salamander-Irby, Esq.]

Judge Kristen L. Mix is a magistrate judge on the U.S. District Court for the District of Colorado and member of the Colorado Intellectual Property American Inn of Court in Denver, Colorado.

© 2017 Judge Kristen L. Mix. This article was originally published in the July/August 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.