Representing yourself, without the benefit of an attorney, in any legal matter,
civil or criminal, is referred to as "acting" Pro Se. Obviously, this subject
can be extremely controversial, depending on who you are talking to, but
the fact is, there are advantages and disadvantages to it.
Most attorneys will quickly tell anyone acting Pro Se they are a fool. Part
of that reason is "here is an individual, practicing law, who is not trained
in the law, usually has no education and are dealing with matters they cannot
possibly understand." In addition, to many, it is an insult that someone
is "stepping into their territory" without "paying dues."
Courts and judges differ on their reaction to individuals acting Pro Se.
In some cases, these individuals are given every possible latitude and in
some cases, they are trashed, but the fact is, all of us have the constitutional
"right" to represent ourselves if we desire. See laws specific to Pro
Se at the bottom of this page.
Interestingly, most civil suits brought against attorneys, prosecutors, judges
and the like are brought by those individuals acting Pro Se. Reason is, most
attorneys would not come near these cases, so it's either "represent yourself"
or forget the matter. One of the most famous Pro Se cases, still cited today,
was "BUCKLEY." Buckley, acting Pro Se, sued a prosecutor. The case was dismissed
by the lower court, appealed and then dismissed by the State Supreme Court.
Buckley ended up appealing the matter twice to the United States Supreme
Court before he was finally allowed to proceed against the prosecutor. Buckley
was not an attorney and had no formal education. I expect he attempted to
have an attorney assist him and equally positive he was ridiculed even for
his consideration of bringing such an action, but the fact is, he won because
he refused to quit when he believed he was right.
One of the downsides to acting "Pro Se," is the fact that many prisoners
file petition after petition, many being totally frivolous and "tie up the
courts." Many are hand written and follow no guidelines, so those reviewing
the pleadings often have no clue as to what the individual filing it is actually
requesting. In addition, many of these individuals attempt to make arguments
when there is absolutely no argument to make and no chance that their petition
will be ruled on in their favor. They simply have nothing better to do in
prison than attempt and "play" lawyer.
The real key to success for any individual acting Pro Se is to do it properly.
This means spending the time necessary to properly educate yourself, addressing
all issues and arguments properly and then presenting them in a clear and
precise manner. This can be accomplished by retaining someone, like us, who
have experience in assisting individuals acting Pro Se with their argument
analysis and document preparation.
Take time to study other petitions filed in your state to determine the manner
in which they are constructed, then use them as a means of preparing a basic
outline for yours. Identify each and every issue that you plan to raise and
then research those individual issues to assure that courts have acted favorably
on them previously. If you determine that certain issues you want to address
have not been ruled on favorably, opt to stay with issues that have. Do not
simply "load" any petition with everything you can think of, just for the
benefit of saying something. The real issues get lost quickly.
Separate each issue and argument. Do not allow everything to "run together"
where nothing you say can be intelligently understood. Keep what you are
saying as simple as possible.
When you finish a rough draft, have others read it. If it is not simple and
clear enough for them to understand, maybe the court won't either. No one
expects you to use the "polished" wording of an attorney, so don't try to
be impressive, just keep it simple.
When you have completed your final draft, type it or have it typed before
it is filed with the court. If you follow these simple rules, you are actually
proving that you have more respect for the court than simply "throwing something
together," and many times that will benefit those representing themselves.
The courts do tend to "bend over backwards" more for petitions filed in criminal
matters by individuals acting Pro Se than they do when individuals attempt
to represent themselves in civil matters. Most courts want to assure that
no prisoner's constitutional rights are being violated and therefore, any
argument you can make, based on constitutional law, is beneficial.
In the greatest majority of petitions filed by prisoners, they will be no
oral arguments set. Obviously, the prisoner will not have to stand and argue
in the same manner an attorney would be expected to. Usually, the decisions
are based solely on the petition filed.
In some matters, such as a Petition for Writ of Habeas Corpus, there could
be arguments scheduled, especially if the petition is filed in the lower
court. A petition for Writ of Habeas Corpus is simply a petition you file
with the court, arguing that you are being held "unjustly" and should be
released.
These arguments are very simple. You are not "arguing" against another attorney.
You will have the opportunity to make a "statement" and so will the other
side. Your "statement" consists of a short analysis of why you believe your
petition has merit and why you believe the court should free you. The solution
is very simple. Prepare a short "speech" and "read" it into the court record.
This can consist of one or two pages where you "highlight" the individual
points you address in your petition. Regardless of what you say, the decision
will be made, in most cases, by what in written in the petition. In some
cases, a petitioner, during arguments, has simply said, "Your Honor." "I
would base all arguments on what is written in my petition."
Acting Pro Se can be beneficial, especially if you are in a position where
you cannot gain or afford the assistance of an attorney, but it will have
to be done correctly in order for it to be accepted with any respect or
authority.
Pro Se Laws
HAINES v. KERNER, ET AL. 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652. Whatever
may be the limits on the scope of inquiry of courts into the internal
administration of prisons, allegations such as those asserted by petitioner,
however inartfully pleaded, are sufficient to call for the opportunity to
offer supporting evidence. We cannot say with assurance that under the
allegations of the pro se complaint, which we hold to less stringent standards
than formal pleadings drafted by lawyers, it appears "beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See Dioguardi
v. Durning, 139 F.2d 774 (CA2 1944).
ESTELLE, CORRECTIONS DIRECTOR, ET AL. v. GAMBLE 29 U.S. 97, 97 S. Ct. 285,
50 L. Ed. 2d 251. We now consider whether respondent's complaint states a
cognizable 1983 claim. The handwritten pro se document is to be liberally
construed. As the Court unanimously held in Haines v. Kerner, 404 U.S. 519
(1972), a pro se complaint, "however inartfully pleaded," must be held to
"less stringent standards than formal pleadings drafted by lawyers" and can
only be dismissed for failure to state a claim if it appears "beyond doubt
that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Id., at 520-521, quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957).
WILLIAM MCNEIL, PETITIONER v. UNITED STATES 113 S. Ct. 1980, 124 L. Ed. 2d
21, 61 U.S.L.W. 4468. Moreover, given the clarity of the statutory text,
it is certainly not a "trap for the unwary." It is no doubt true that there
are cases in which a litigant proceeding without counsel may make a fatal
procedural error, but the risk that a lawyer will be unable to understand
the exhaustion requirement is virtually nonexistent. Our rules of procedure
are based on the assumption that litigation is normally conducted by lawyers.
While we have insisted that the pleadings prepared by prisoners who do not
have access to counsel be liberally construed, see Haines v. Kerner, 404
U.S. 519 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976), and have held
that some procedural rules must give way because of the unique circumstance
of incarceration, see Houston v. Lack, 487 U.S. 266 (1988) (pro se prisoner's
notice of appeal deemed filed at time of delivery to prison authorities),
we have never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed without
counsel. As we have noted before, "in the long run, experience teaches that
strict adherence to the procedural requirements specified by the legislature
is the best guarantee of evenhanded administration of the law." Mohasco Corp.
v. Silver, 447 U.S. 807, 826 (1980).
BALDWIN COUNTY WELCOME CENTER v. BROWN 466 U.S. 147, 104 S. Ct. 1723, 80
L. Ed. 2d 196, 52 U.S.L.W. 3751. Rule 8(f) provides that " pleadings shall
be so construed as to do substantial justice." We frequently have stated
that pro se pleadings are to be given a liberal construction.
HUGHES v. ROWE ET AL. 449 U.S. 5, 101 S. Ct. 173, 66 L. Ed. 2d 163, 49 U.S.L.W.
3346. Petitioner's complaint, like most prisoner complaints filed in the
Northern District of Illinois, was not prepared by counsel. It is settled
law that the allegations of such a complaint, "however inartfully pleaded"
are held "to less stringent standards than formal pleadings drafted by lawyers,
see Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Maclin v. Paulson,
627 F.2d 83, 86 (CA7 1980); French v. Heyne, 547 F.2d 994, 996 (CA7 1976).
Such a complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. Haines, supra, at 520-521.
And, of course, the allegations of the complaint are generally taken as true
for purposes of a motion to dismiss. Cruz v. Beto, 405 U.S. 319, 322 (1972).
