The enormous but hidden challenge of the pro se docket

photo (2)[T]he 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 . . . .” The right is currently codified in 28 U.S.C. 1654.

Faretta v. California, 422 U.S. 806,  812-813  (1975).

One of the purposes of this blog is to realistically describe what goes on in the life of a federal district judge.  In this post, I write about the hidden challenge of dealing with pro se cases.

At the beginning of their chapter on federal district judges, Epstein, Landes and Posner write that a “substantial fraction of cases filed in the district courts (many by persons who do not have legal representation) have no possible merit and so really are just noise in the data.”  Lee Epstein, William M. Landes and Richard A. Posner, The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, at p. 207, Harvard University Press (January 2013) (emphasis added).   While they are correct to say that pro se cases often lack  merit and, from the perspective of a social scientist, might fairly be dismissed for empirical purposes, a federal district judge cannot so easily ignore that class of cases.

If pro se cases were only a small fraction of the caseload, there would be nothing to worry about.  But that is not the case.  I estimate that pro se cases comprise 25% of the typical civil docket of the typical federal judge.  That’s right, 1 in 4 civil cases are pro se.  Many believe the real ratio exceeds 1 in 3.  See, e.g., Kory Schneider, Illiberal Construction of Pros Se Pleadings,  159 University of Pennsylvania Law Review 585, 592 (2011) (37%).

The federal judiciary has reacted to this massive case load by devoting substantial resources to pro se cases.  In 2013, the judiciary will allocate funding for 328 pro se staff lawyers* each working an assumed 1,763.04 hours per year on cases.  Memorandum from the Director of the Administrative Office of the United States Courts to District Chief Judges, FISCAL YEAR 2013 PRO SE LAW CLERK ALLOCATION, (October 22, 2012).  On average, pro se prisoner civil rights cases are assumed to take 13.4 hours of the lawyer’s time, and pro se habeas corpus cases are assumed to take 8.3 hours.

Although one could define the pro se docket to include any civil case filed by a pro se party, the conventional way federal courts define the pro se docket is to key on whether the person filing the complaint or petition is or was a prisoner.  Note that habeas petitions challenging state convictions and section 2255 motions challenging federal convictions are civil in nature even though a criminal conviction is at the heart of the dispute.

I manage the pro se docket for the District of Nebraska,  and supervise our two pro se staff lawyers.  Gabi and Ryan are our pro se staff lawyers.  (Gabi, the lead pro se staff attorney, is pictured above.)  Both graduated law school with top grades.  They are great lawyers and wonderful writers. ** Unfortunately, and as a result of the budget disaster, Ryan (like 37 other pro se staff lawyers nationwide) has been rewarded for his five years of hard work with a pink slip, effective December 31, 2013.

The job of pro se staff lawyers (sometimes called pro se law clerks) is to work with the judges to manage and resolve the huge but hidden caseload that is the pro se docket.  Unlike the typical law clerk, pro se staff lawyers are specialists who often intend on making a career of working for the federal courts.  They must keep up on and master arcane aspects of federal law.  Because much of their work also involves questions of deference and comity with respect to the state courts, pro se law clerks become experts on state procedural law.  Additionally, they must act as case managers constantly worrying about such things as progression orders, the age of motions and the time to disposition of cases.  These lawyers work under constant and grinding pressure.  It is very demanding work.

When dealing with the pro se docket, the task of the federal district judge and staff attorney involves finding tiny needles in mountainous haystacks while disposing of the leftover hay in timely manner.  Even though the vast majority of cases are found to lack merit, every case must be treated with care.   On the other hand, pro se litigation can do real harm by forcing defendants to expend money to defend the silly.  Thus, the judge and the pro se staff attorney must work diligently to see to it that pro se litigants do not abuse the process. Finding the right balance, requires skill and experience.

They may only be “noise in the data,” but pro se cases comprise a substantial part of the daily life of a federal district judge and his or her staff.  If one wants to understand what federal district judges actually do, knowledge of the pro se docket is essential.


*This includes staff lawyers who devote their time exclusively to death penalty cases.

**They are also nice people with diverse and interesting backgrounds.  For example, and although an American citizen by birth,  Gabi, a fluent Spanish speaker, spent her summers as a child with her grandparents in an extremely remote part of Mexico.  In her spare time, Gabi loves to read the poetry of Pablo Neruda.   I had the privilege of marrying Gabi and Raul.  Raul is a lawyer too.

2 responses

  1. Judge, on the state side, ours is not as bad because we have our “district court” that weeds out a lot of these case, but a lot do appeal.

    I have found that a fair amount of the pro se litigants at one time may have had an colorable claim, but have lost it due to inaction or ignorance. Then, they become frustrated and mad at the world and their lawsuit becomes the focus of their life.

    At times, I don’t have a lot of patience with pro se litigants but one day a “Freeman” (is that the term) had appealed a speeding ticket. I had a migraine and either the migraine or the medicine made me more introspective (goofy?). It was the status docket and I engaged in a polite 60 minute debate with him (most have nothing to do with the Freemen). Halfway though this, I noticed the courtroom was full, a rarity. My district attorney had “tweeted” to everyone what was going on and the D.A.’s office, law clerks, etc. came to watch the show

    The defendant asked could he ask me a question. I said sure. Apparently reading from a script said “Am I physically present in this courtroom? My answer was: “That is a matter of intense debate within the physics/cosmology community. The holographic theory of the universe asserts that we are merely a projection on the brane of the universe, projected from the far side of the universe, at least 5 billion light years away. Thus, is a hologram a physical being? So your question is unanswerable.”

    As I said, this went on for an hour (it was the last case). Then I said “You have been punished enough by having to listen to me, case dismissed, all cost remitted.”

    I need to get a transcript of that odd afternoon.

    I think too many judges (me included) come down real hard on the pro se litigants which only deepens their anger at “the system”.

    One day I was getting ready to stamp a pro se prisoner’s petition with a big red DENIED when I noticed that we had forgotten to dismiss count 2 of the indictment. when he pled guilty. He had served his 2 years on count 1 and now the Dept. of Corrections was starting his 2 year sentence on count 2. So sometimes there is that “diamond in the rough”.

    But I am very glad that most of the pro se litigants seem to gravitate U.S. District Court.

  2. Judge, what a great story about the prisoner and the dismissed count. That is exactly why all of us who handle pro se cases must resist becoming jaded. As you know, that, however, is hard, very hard.

    All the best.


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