What is Pro Se?

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 Note Below). 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).

This note added on July 7, 2009, and thanks to Peter Bernegger for the following update. The U.S. Supreme Court case Conley vs Gibson, (Identified Above), has in effect been overturned in the sense that the Federal Courts now use Bell Atlantic vs Twombly, decided by the Supreme Court in 2007. In a nutshell Federal Courts across the USA rushed to this new decision to dismiss lawsuits right and left stating that they are not specific enough, don't contain enough facts and such. With Conley vs Gibson they had to take a somewhat conclusionary view and assume in the beginning that the Plaintiff is right. No longer.

• See http://www.oyez.org/cases/2000-2009/2006/2006_05_1126 for a factual explanation.

• See http://lsolum.typepad.com/legaltheory/2008/11/bone-on-bell-at.html for one critical view.

Overall, to make a Plaintiff come to the table with more facts is not so bad in my opinion. However, the Judges across the USA have used this new case as a magic wand to go through their stacks of cases, wiping them out right and left by dismissal claiming Bell Atlantic vs Twombly. It is now the number one quoted case when the defendant files a motion to dismiss per www.versuslaw.com.

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