Pro Se Litigation

". . . the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." (Elmore v. McCammon (1986) 640 F.Supp. 905,911).

The general public who are not wealthy, cannot afford spiraling attorney fees. The number of people who are proceeding pro se is increasing dramatically:

"With attorney fees spiraling above $200 an hour, more people who can't afford the tab--or choose not to pay it--are representing themselves, . . .'The number of people proceeding pro se is dramatically greater than in the early 1980s,' says Sara-Ann Determan, chair of an American Bar Assn. committee . . ." ("Do You Really Need that Lawyer?" Business Week (August 22,1994) p.76).

Because an overwhelming number of pro se litigants know little or nothing about legal procedures, case law, statutory interpretation, or phrasing pleadings and motions, courts are required to construe pro se petitions liberally. Haines v. Kerner (1972) 404 U.S. 519,520 (per curiam); accord Hughes v. Rowe (1980) 449 U.S. 5,15 (per curiam).

For example, the court may substitute the appropriate statute for an omitted or incorrect statute if the facts arguably support a claim under the law. Foster v. Murphy 686 F.Supp.471,474 (1988); O'Connor v. United States (1987) 669 F. Supp. 317,324.

Pro se litigants breathe fresh air into the stuffy private club atmosphere of the courts. Unlike lawyers, they have less natural reluctance to expose judicial corruption.

"The difficulty in inducing a member of the bar to attack a corrupt judge lies in his natural fear of reprisals in case, through influence, political or otherwise, the lawyer's efforts prove unsuccessful." (BORKIN, The Corrupt Judge, (NY Clarkson N. Potter, 1962), p.189).

Pro se litigants bring honesty instead of falseness into the courts:

". . . Another fact little known to those who don't live in the court system every day is that there is rarely any earthly punishment for lying in court.

There is, of course, the crime of perjury. . . . But anyone who has been around the court system for awhile knows that perjury is almost never prosecuted. District Attorneys justify this by saying they have learned juries won't convict anyone of perjury no matter how strong the evidence. Whether this conclusion is based on actual experience or myths passed down from their elders isn't clear. For example, several years ago Judge Roderic Duncan, of the Alameda County Superior Court, sent what he describes as "a slam-dunk case of perjury" to the local D.A. Judge Duncan pointed out in his letter that "one of the parties admitted in my court that he had lied under oath." The D.A. never even responded to his letter. One peculiarity Judge Duncan has noticed in judging at several levels of the court system is that small claims court seems to be the most perjury-free. He says,"day after day, in case after case, I recall people standing up in small claims court and testifying to facts that clearly damaged their cases. Things such as: 'Well, the light was either yellow or red, but I thought I would have time to get through the intersection on time... besides, that other car was coming on entirely too fast.'" However, Duncan also says that in Superior Court, "where I sat for many years, it is extremely rare to hear anyone admit something that might damage their case. For example, in Family Court, no one I know has ever heard a wage-earner in a child support case admit that he was earning overtime and therefore really should pay more support." Duncan goes on to ask whether the fact that witnesses seem more honest in small claims court--where lawyers aren't allowed--is attributable to the fact that when a lawyer gets into a case, he or she will advise the client to lie. He responds, "In a few cases I am sure it happens, but in most instances I think a lawyer just points out to the client that if he admits he is still earning overtime, the judge is going to increase the support he is ordered to pay. The client understands that truth equals a financial hit and decides to lie." Is the lawyer doing something wrong when she explains to a client what type of testimony might result in a victory? Judge Duncan says: "It depends on nuances too delicate to quantify. A lawyer who explains the adverse consequences of certain testimony is only doing his or her job. A suggestion that the truth be 'modified,' of course, is unethical behavior." - From an article at www.nolo.com.

Pro se litigants enrich the law by raising controversial issues which lawyers would be reluctant to do. For example, William Penn (founder and proprietor of Pennsylvania) "who never obtained an academic degree" was a pro se litigant in Bushel's Case (1670) which "established the independence of the jury beyond question in English jurisprudence".

"At his trial in the Old Bailey on Sept.1,1670 he skillfully exposed the unconstitutionality of the proceedings and inspired the jury to withstand the brutal pressure of the judges for a verdict of guilty." (21 Encyclopedia Americana (c.1992) s.v. "Penn, William").

Pro se litigation was the rule rather than the exception in early American history.

"Lawyers were actually banned outright or faced tight restrictions in many colonies for much of the 18th century. . . . The "Body of Liberties" adopted by the Massachusetts Bay Colony in 1641 expressed the typical attitudes of the time: "Every man that findeth himselfe unfit to plead his own cause in any court shall have libertie to employ any man ..., provided he give him noe fee or reward for his pain.". . .

The strong tradition that each American should be able to master the laws probably peaked in the years between . . . 1825 and . . . 1865. Most states enforced few if any restrictions on non-lawyers appearing in court on behalf of others as Lincoln himself did before he talked a judge into granting him attorney status. . . . the American Bar Association convinced states to pass "unauthorized practice of law" statutes in the 1920s and 1930s, which effectively gave lawyers a monopoly over the sale of legal information. . .