Pro se is a Latin adjective meaning "for self", that is applied to someone who represents himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. This status is sometimes known as "propria persona" or "pro per". In England and Wales the phrase "Litigant in Person" is used.

In California, in both state and federal courts including the 9th Circuit, the phrase "In Pro Per" is used instead of pro se. "In pro per" is short for in propria persona Latin for "in proper person".

A popular new term for pro se is self-represented litigant (SRL).^{citation needed} The reason for this is to make legal terms more accessible to the general public.^{citation needed}

Text of South African Bill of Rights

"Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -

anyone acting in their own interest; anyone acting on behalf of another person who cannot act in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest; and an association acting in the interest of its members." 38. Enforcement of rights Chapter 2 Bill of Rights South Africa Constitution 1996 ^[1]

History of self-representation in England

"In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and Judicial character, and characteristically departed from common law traditions. For those reasons, and because it specialized in trying "political" offenses, the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed. Stephen commented on this procedure:

"There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence."...

The common law rule, succinctly stated in R. v. Woodward, [1944] K.B. 118, 119, [1944] 1 All E.R. 159 160, has evidently always been that "no person charged with a criminal offence can have counsel forced upon him against his will." [Footnote 29] See 3 Halsbury's Laws of England ¦ 1141, pp. 624-625 (4th ed.1973); R. v. Maybury, 11 L.T.R. (n.s.) 566 (Q.B. 1865).Faretta v. California, 422 U.S. 806 (1975) ^[2]

In the United States

Criminal law

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In Adams v. United States ex rel. McCann (317 US 269) the United States Supreme Court upheld the individual's right to represent him or herself without being admitted to a bar (pro se).^[3] Subsequent cases confirmed that in the United States, in any criminal prosecution by a State or the Federal Government the Sixth Amendment and Fourteenth Amendment of the Constitution guarantee the right of the accused to refuse the aid of an attorney, though even in those circumstances the court may require that an attorney be present as an advisor should the accused desire help. ^[4] Once a person elects to be tried pro se, however, he or she has effectively waived the right to counsel for the remainder of the trial^{citation needed}.

Civil law

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Small claims courts in many jurisdictions do not allow lawyers to represent clients in front of the judge absent special circumstances. Even in states like Texas where lawyers are permitted to litigate in small claims court, the court proceedings are typically less technical and much more conducive to pro se litigants. In civil cases there is no right to appointed counsel, although some courts do offer court paid lawyers in certain situations.

Text of U.S. Code

"In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.28 USC Sec. 1654 TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART V - PROCEDURE CHAPTER 111 - GENERAL PROVISIONS Sec. 1654. Appearance personally or by counsel ^[5]

U.S. Supreme Court rulings

"The Sixth Amendment as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so, and, in this case, the state courts erred in forcing petitioner against his will to accept a state-appointed public defender and in denying his request to conduct his own defense......This Court's past recognition of the right of self-representation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored....In the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England....The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions...his prejudice gained strength in the Colonies where "distrust of lawyers became an institution."...Several Colonies prohibited pleading for hire in the 17th century.*fn32 The prejudice persisted into the 18th century as "the lower classes came to identify lawyers with the upper class."...the basic right of self-representation was never questioned. We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer. Indeed, even where counsel was permitted, the general practice continued to be self-representation....The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the "right to counsel" meant to the colonists a right to choose between pleading through a lawyer and representing oneself....And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally....In sum, there is no evidence that the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel. To the contrary, the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an "assistance" for the accused, to be used at his option, in defending himself." Faretta v. California, 422 U.S. 806 (1975) ^[6]

"Faretta does not, as §2254(d)(1) requires, "clearly establis[h]" the law library access right. In fact, Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant" ^[7]

"The Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves". Edwards was diagnosed with schizophrenia following attempted murder by shooting charges related to an attempt to steal a pair of shoes. ^[8]

"save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that "parties may plead and conduct their own cases personally or by counsel," does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney." ^[9]

"it is not necessary that this applicant be a member of this Bar to resolve the ruling against himself. He could file a petition for certiorari pro se" ^[10]

"the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, and, second, standby counsel's participation without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." ^[11]

""the structure of the Sixth Amendment, as well as . . . the English and colonial jurisprudence from which the Amendment emerged," 422 U.S., at 818, established the existence of an independent right of self-representation." ^[12]

“there is no question that a party may represent his or her own interests in federal court without the aid of counsel. See 28 U. S. C. §1654 ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel)” WINKELMAN V. PARMA CITY SCHOOL DISTRICT, 127 S. Ct. 1994 (U.S. 05/21/2007) ^[13]

History of self-representation in U.S.

"In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that,

"in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel. . . ." ^[14]

State court rulings

“The chief judge's directive at issue here clearly discriminates against pro se litigants solely on the basis of their pro se status and, in that respect, lacks any rational basis in fact and thus violates equal protection of the laws” Tassian v. People, 731 P.2d 672 (Colo. 01/20/1987) ^[15]

Text of state constitutions

"Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay." Article II Section 6. Equality of justice. Colorado Constitution ^[16]

"The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Article 1 Declaration of Rights SECTION 21. Access to courts Florida Constitution ^[17]

"A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney." ARTICLE I § 13 Conduct of suits in person or by counsel. Michigan Constitution ^[18]

"Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws." Sec. 8. REDRESS OF INJURIES OR WRONGS. Minnesota Bill of Rights ^[19]

"In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor’s choice. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] Every person has an absolute right to appear pro se. Hlavinka v. Blunt, Ellis & Loewi, Inc. 174 Wis. 2d 381, N.W.2d (Ct. App. 1993). A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term “any suitor.” Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (1997) Rights of suitors. § 21(2) [As amended April 1977] ^[20]

Why people proceed Pro Se

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"It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law." U.S. Supreme Court ^[21]

Some individuals choose to act pro se because they themselves are lawyers or have other legal experience, or simply because they are confident in their ability to convey their claim or defense without professional aid. Some pro ses may simply not want to pay the attorney's fees and expenses associated with hiring counsel. Others may want a lawyer, but find themselves unintentionally unrepresented due to their inability to find or afford a lawyer willing to take their case. In civil court matters, this might occur where the outcome would be uncertain, such as in cases of alleged defamation where the plaintiff may be burdened by costly SLAPP litigation. Such people will often continue the case pro se rather than give up their quest for damages.

Other people proceed pro se in order to get damages for the unlawful death of a child. Many states limit the awards for the unlawful death of a child to $50,000. Even if the parents are willing to pay the continency fee for a lawyer, there may not be enough earning potential in the case for the lawyer to spend the time.

The NAACP and the Mine Workers hired lawyers on staff to sue to benefit their members because their members could not get lawyers on their own.^[22]

The U.S. Supreme Court has stated: "We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice”.^[23]

The Supreme Court decision in Winkelman v. Parma City School District ended a series of cases in which parents who couldn't afford a lawyer were told they couldn't file written documents and follow the rules of civil procedure for the purpose of getting public education funds for their disabled children. In those cases, there was no damages claim to divide with a lawyer. The point of the actions was simply to get the children a publicly funded education. ^[24]

In most serious criminal prosecutions in the United States, an indigent defendant has a right to a lawyer appointed by the court, so the decision to proceed pro se is rarely based on financial considerations. However, even indigent criminal defendants in jurisdictions that guarantee legal representation may still have to represent themselves in the later stages of the case, as free representation is often only provided by the state during the initial trial and the direct appeal. This is especially true in collateral proceedings such as habeas corpus or postconviction petitions that fall outside the normal appeals process.

Resources for the Pro Se

Their fees are negotiable, but if on an hourly rate, expect to pay average lawyer fees in the U.S. of around $200-300 per hour. ^[25]

For those individuals who do elect to proceed on their own, there are many resources both in print and other formats, and many on the Internet, that offer ideas, definitions, instructions, legal topic overviews and do it yourself legal forms for many matters. Cases, decisions, and statutes can be found in law libraries. There are monthly on-line subscription services offering decisions of state and federal courts. Cornell University Legal Institute is an on-line free database and includes some Supreme Court decisions and congressional notes to the rules of civil and criminal procedure. Most of the U.S. code is available at Cornell and all of it is available on line thru the U.S. House of Representatives. State statutes and rules of criminal and civil procedure are usually available for free on-line thru links from the state attorney general and the state house of representatives. West Law and Moore's are legal publishers offering a variety of publications in various levels of detail. In 1975, West Law published a multi-volume legal encyclopedia called American Jurisprudence, which is available in many public libraries and some jail libraries. West Law also publishes its paperback "Nutshell" series including a summary of civil procedure. These sell for less than $20 and are available in many public law libraries and may be purchased from Amazon.com. Amazon.com and other vendors sell used law school textbooks including its "Hornbook" text by Dan Dobbs "The Law of Torts", a standard law school text book used in law schools endorsed by the ABA. WestLaw also publishes Federal Procedure Lawyer's Edition, which may also be quoted by self-represented litigants. The federal government subsidizes certain law libraries and many offer free library cards to the public. Almost all federal court filings including motions and objections are available on the U.S. Judiciary Pacer system. Pacer is available for free in certain places but in others anyone can set up an account and pay by credit card. The current fee is 8 cents per page or a maximum of $2.40 per document. There are also many blogs about law. The ABA offers a free email subscription and allows most people to post but deletes postings and bars posters at will. The Wall Street Journal also has a law blog with articles about subjects of interest. It allows anonymous postings but deletes some of them. The WSJ law blog includes links to free copies of various decisions and complaints. Legal document assistants, and in certain states where permitted by law, Paralegals, may also assist with brief preparation, for a fee. Pro se litigants, in some courts, can obtain filing assistance from a pro se clerk at the courthouse, or in very limited circumstances, the judge, underway in the case, may give advice from the bench on how to navigate the law. ^[26]

Notable Pro Se Litigants

Thomas Van Orden, a lawyer with a suspended license to practice law who was living homelessly in Austin, Texas, managed to challenge a religious display on the state capitol grounds, and successfully navigated his case all the way to the Supreme Court. While he was ultimately unsuccessful at getting the display removed, he was extremely successful at litigating the case. See Van Orden v. Perry. ^{[27] [28] [29]}

Edward C. Lawson is an African American civil rights activist, who was the pro se defendant in the case of Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.^{[30] [31] [32] [33]}

Jim Traficant, a former Congressman from Ohio, represented himself in a RICO case in 1983, and was acquitted of all charges, becoming the only person to ever win a RICO case while representing himself. Traficant would represent himself again in 2002, this time unsuccessfully, and was sentenced to prison for 8 years for taking bribes, filing false tax returns, and racketeering.^{[34] [35] [36]}

Barbara Schwarz, of Salt Lake City, Utah, has filed a large number of Freedom of Information Act (FOIA) requests. When the responses failed to verify her claims, she responded with litigation, which she has done pro se. According to the Salt Lake Tribune, "at least one of Schwarz's lawsuits has been considered by a U.S. District or U.S. Circuit Court of Appeals somewhere in the nation every year since 1993."^[37]

William Penn represented himself successfully following his 1670 arrest with William Meade. Penn was accused of preaching before a gathering in the street, which Penn had deliberately provoked in order to test the validity of the new law against assembly. Penn pleaded for his right to see a copy of the charges laid against him and the laws he had supposedly broken, but the judge (the Lord Mayor of London) refused — even though this right was guaranteed by the law. The judge directed the jury to come to a verdict without hearing the defense.^[38] When invited by the judge to reconsider their verdict and to select a new foreman, the members of the jury refused, and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, "You shall go together and bring in another verdict, or you shall starve”. The judge had Penn sent to Newgate prison (on a charge of contempt of court). The full jury followed him, and the jury members were fined the equivalent of a year’s wages each. ^[39][40]The members of the jury, fighting their case from prison, managed to win the right for all English juries to be free from the control of judges. This case was one of the more important trials that shaped the future concept of American freedom (see Jury nullification) and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained.

William Marbury was appointed as a judge before there were any U.S. law schools or licensing of lawyers. His appointment was cancelled so he successfully sued President Madison. Marbury v. Madison solidified the United States’ system of checks and balances and gave the judicial branch equal power with the executive and legislative branches.” ^[41]

Christina McCullock-Finney won Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 against the Quebec Bar Association before the Supreme Court of Canada. ^[42]

Michael Ray "a former paralegal who is nearing the end of a six-year sentence for real-estate fraud, has no college or law school education. Yet he drafted an appeal for pro-se litigant Keith Lavon Burgess, who is in prison for crack posession. Ray argued that a 20-year mandatory minimum sentence was inappropriate for Burgess because his prior drug conviction was a misdemeanor, not a felony. Against all odds, the U.S. Supreme Court agreed to hear the case, which will be argued by Stanford Law School Professor Jeff Fisher. A successful appeal could reportedly cut Burgess’s sentence in half...Ray... conducts his own CLE by reading legal journals and joining legal associations, including the ABA." ^[43]

Sean Harrington is a self-represented party who, while in law school, sued the Colorado Attorney Regulation Office in federal court. His claims were dismissed by federal Judge Edward Nottingham. Following, Harrington published a very elaborate web site, KnowYourCourts.com including criticisms of Judge Nottingham and he filed a pending judicial misconduct complaint against Judge Nottingham related to his use of prostitutes, attendance at strip clubs, and keeping pornography on his government computer in his judicial chambers. </ref> http://www.knowyourcourts.com/Nottingham/Nottingham.htm/</ref>

References

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