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Self-Representation FAQs
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Responses
According to Black’s Law Dictionary, "pro se" is a Latin term meaning “for oneself” or “on one’s own behalf.” Proceeding pro se is also sometimes referred to as “pro per” or “propria persona.” In a legal setting, the term pro se refers to acting as one’s own attorney or representing yourself in a civil or criminal matter. The terms pro se and pro per are equivalent in court. It is becoming more common for courts to use the term "self-represented litigant" when referring to a pro se or pro per litigant.
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The Fifth and Sixth Amendments of the constitution provide several rights to defendants in criminal cases. One of those is the right of self-representation. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court considered whether the Sixth Amendment required, through the due-process clause of the Fourteenth Amendment, that states recognize the right of self-representation in criminal trials. The court held that criminal defendants have a constitutional right to refuse counsel in state criminal proceedings.
In civil lawsuits, there is no legal right to appointed counsel, nor a fundamental right to proceed pro se or without counsel; however, many litigants choose to represent themselves. While most courts allow litigants to represent themselves, some prohibit corporations from appearing without counsel. In some small-claims courts in the United States, attorneys are not allowed to represent clients except for special circumstances. Selfhelpsupport.org provides links to many court cases involving the right to proceed pro se. Selfhelpsupport.org, a national clearinghouse on self-representation, is maintained by the NCSC. Membership (free) is requirred to access their library of resources.
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Litigants from different incomes and educational levels represent themselves and each, due to the particular circumstances of their cases, may have differing needs for assistance. Some self-represented litigants may need a mere explanation regarding the litigation process, others may only need assistance in filling out court forms or drafting pleadings, while still others may need more intensive services.
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Many litigants represent themselves for a variety of reasons. They may be confident in their ability to proceed in court without a lawyer. They may be lawyers themselves or have prior legal experience. Cost can also be a factor. They may not be financially able to pay the legal fees. Or they may be able to pay them, but unwilling to do so. They may believe that attorneys are not competent. They may also believe that their case is simple enough to handle themselves. In addition, many courts have simplified court forms and processes, which makes it less difficult to navigate the court system to resolve a case.
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While there are no national statistics on the numbers of self-represented litigants, individual states and jurisdictions have documented high numbers of self-represented litigants in domestic-relations (especially divorce and domestic abuse), small-claims, traffic, and landlord/tenant cases. For example:
- In Utah, for divorce cases, 49 percent of petitioners and 81 percent of respondents were self-represented (Committee on Resources for Self Represented Parties, "Strategic Planning Initiative: Report to the Judicial Council," July 25, 2006).
- In New Hampshire, one party is pro se in 85 percent of all civil cases in the district court, and 48 percent of all civil cases in superior court are pro se ("Challenge to Justice--A Report on Self-Represented Litigants in New Hampshire Courts--Findings and Recommendations of the New Hampshire Supreme Court Task Force on Self-Representation," January 2004).
- In California, in a survey of pro se assistance plans submitted to the Administrative Office of the Courts by 45 counties, the pro se rate of family-law cases overall averaged 67 percent. In the larger counties, the average was 72 percent. In domestic-violence restraining-order cases, litigants are reported to be pro se over 90 percent of the time (Bonnie Rose Hough, "Description of California Courts Programs on Self-Represented Litigants," June 2003).
For additional statistics on self-representation in the courts, see Madelynn Herman, "Pro Se Statistics Memorandum" (NCSC, September 25, 2007).
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Many states have developed self-help programs. Self-help centers can be virtual or exist within courts or the community. Courts often collaborate with law libraries and legal-service programs to assist self-represented litigants. In 2006 Selfhelpsupport.org conducted a national survey of court-based self-help programs and published A Directory of Court-Based Self Help Programs. Approximately 130 court-based self-help programs were identified in 25 states. Program services and contact information is also provided. NCSC's “Self-Help Information Resources and Centers” also provides links to various self-help programs around the country. This list is not all-inclusive as new programs are constantly being developed.
Many courts provide access to forms online, which can be of great assistance to self-represented litigants. While some states offer forms that can only be downloaded online, other states have developed document-assembly programs where self-represented litigants can complete the form online and deliver or file the form electronically with the court. The NCSC state links document Court Forms provides links to many state court Web sites that provide online forms for self-represented litigants.
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Best Practices in Court-Based Programs for the Self-Represented: Concepts, Attributes and Issues for Exploration (Williamsburg, VA: National Center for State Courts, 2006), which was developed by the Self-Represented Litigation Network (SRLN), identifies 41 best practices for self-help programs and services. Best practices are divided into five broad categories:
- Self-Help Centers and Services
- Forms, Document Assembly and E-Filing
- Practices in the Courtroom
- Discrete Services, Pro Bono, and Volunteer Programs
- Judicial Ethics and Education
In the 2007 Future Trends in State Courts article "Spreading and Adopting Best Practices for Court-Based Programs for the Self-Represented," Richard Zorza discusses why there is a need for best practices in self-representation; how the best practices were developed; how the best practices are used at the state, court, and individual program level; and how courts or states can decide which best practices to focus on.
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Many courts have adopted the proposed protocol developed in 2002 by the Pro Se Implementation Committee of the Conference of Chief Justices (CCJ). This protocol outlines ten specific guidelines for judges to use in court during hearings involving pro se litigants. In 2003 the Judges' Journal published "Judicial Techniques for Cases Involving Self-Represented Litigants." This article discusses case law, judicial neutrality, and CCJ's proposed protocol.
In 2007 the California Administrative Office of the Courts published Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers. This comprehensive benchguide was designed to help judicial officers handle the increase in cases involving self-represented litigants and includes sample scripts and checklists. The guide's twelve chapters cover the following topics: - Self-Represented Litigants: Who Are They and What Do They Face When They Come to Court?
- Expanding Access to the Court Without Compromising Neutrality
- California Law Applicable to a Judge’s Ethical Duties in Dealing with Self- Represented Litigants
- Solutions for Evidentiary Challenges
- Caseflow Management
- Courtroom and Hearing Management
- Settling Cases
- Special Due Process Considerations
- Communication Tools
- Avoiding Unintended Bias
- Addressing Litigant Mental Health Issues in the Courtroom
- Judicial Leadership in Access to Justice
A national version of the California judicial benchguide is currently being developed by the Self-Represented Litigation Network and will be published in 2008.
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| Creation Date: 2003 |
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Last Modified: 8/4/2009
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