Self-Represented Litigants and the Pro Se Crisis
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In Latin, pro se means “for oneself” or “on one’s own behalf.” In court, pro se means at least one party represents itself without an attorney’s assistance. While criminal defendants may also appear pro se, this article focuses on the challenges present in civil pro se cases.
Pro se litigants’ case outcomes are generally very unfavorable. In federal district courts from 1998 to 2017, around 12% of pro se defendants received final judgments in their favor while pro se plaintiffs won only 3% of final judgments. This statistic means when parties choose to represent themselves, they lose around 80-90% of the time. In contrast, when both parties were represented in the study, plaintiffs’ and defendants’ win percentages were roughly the same, as expected. The Conference of State Court Administrators found similar trends in pro se litigation across the court community.
Self-represented litigants could disproportionately lose to parties represented by counsel for many reasons. One explanation for this imbalanced outcome is the attorney contingency fee system. Many times, lawyers work on contingency fee bases where they receive fees only when their clients win. Due to this system, lawyers favor representing clients with stronger cases while parties with weaker cases remain unrepresented. Therefore, pro se litigants may lose more often because they have inherently weak cases that cannot attract lawyers to represent them. Even if lawyers do not operate under a contingency fee award, they still may not want to represent frivolous suits that parties go on to litigate pro se and subsequently lose. Under this explanation, pro se litigation is not inherently disadvantageous to self-represented parties. However, other reasons, including a lack of substantive legal knowledge, courtroom inexperience, trial preparation, emotional attachment, and more could point to inherent flaws within the pro se representation model.
Parties without a legal background lose because they lack procedural and substantive legal knowledge. A study in the Northern District of California showed 56% of pro se claims were unable to survive even a preliminary motion to dismiss. Pro se litigants lose on a preliminary motions to dismiss because they lack knowledge regarding procedural rules to survive the first stages of litigation. Once pro se litigants pass the preliminary motion to dismiss, pro se litigants often fail to meet the requisite burden of proof to prevail. They have unfamiliarity with the statutes, case law, and relevant laws directly pertaining to their case. Finding relevant substantive law may even offer little help if pro se litigants are unfamiliar with the language and legal standards to properly utilize the substantive law. Finally, parties without formal legal training have less practice identifying and analyzing legal issues, leading to overlooked issues and imprecise legal arguments. While a trained attorney may have the same issue, non-trained attorneys will more likely struggle with substantive legal knowledge and analysis without similar experience or practice.
While litigators often participate in court proceedings, pro se litigants are less likely to have courtroom experience, leading to unfamiliarity with the adversarial process, court rules, and court characters, causing more losses. Much like the repeat player effect that claims frequent arbitration participants are more likely to receive better results, attorneys with experience in courtrooms will ostensibly receive better results than self-represented litigants who may only participate in court once in their lives. Pro se litigants may not know how the court works, which forms to fill out, or how to submit evidence. As each judge may have different preferences for procedures or arguments, pro se litigants also will have less chance of knowing these court rules than an experienced attorney. Attorneys with relationships with judges or people at the court may also know how to cater arguments to that specific person and increase chances of success. Represented parties may then use how judges tend to rule to their advantage. None of these possibilities are guaranteed advantages in every case but can still make a difference. Pro se litigants must spend time learning all these details about courtrooms which takes time away from preparing for trials.
Pro se litigants may also have difficulty preparing for trials. After learning the substantive law and courtroom procedure, pro se litigants must then consider how to examine witnesses, gather evidence, closely read documents, and present information to a jury. They must contend with all the rules of evidence to know which pieces of evidence to advocate under different arguments. State courts and federal courts also have different laws to consider while local court rules are further distinct. All of these trial preparations are taxing even for experienced attorneys and it would be very difficult for an untrained party to present arguments and theories in a convincing manner.
Additionally, emotions may hinder a pro se litigant’s objective opinion, causing the party to make less rational decisions and damage the outcome of its case. In a study testing emotional responses in litigation, researchers found that different emotions lead to different behavior in litigation. One example was anger or pride leading to higher frequency of trials when a settlement could have been reasonable. With issues that are personal and sensitive, parties have difficulty maintaining an objective perspective, affecting that party’s judgment. Counsel can provide objective analysis and sound advice to prevent parties’ emotions from influencing litigation outcomes.
Moreover, other factors like perceptions and biases may unintentionally influence a pro se case’s outcome. Judges or juries may have preconceived notions of why a party is pro se or assume the case is weak. They may believe that a pro se party “is not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, believe they are right and cannot maintain a proper relationship with counsel, or just downright difficult.” Biases in how a party presents a case may affect a decisionmaker’s neutrality. For example, if a pro se litigant is hindering judicial efficiency or does not abide by a court’s preferences, the wrong factors could unintentionally contribute to the overall outcome of the case. Even trained attorneys who represent themselves may suffer from the pro se reputation because of these negative perceptions about pro se cases.
If pro se litigants perform so poorly, why do parties still choose to represent themselves without counsel? Commonly, parties consider factors like financial constraints, availability of lawyers, attorney effectiveness, or general aversion to lawyers. In some cases, the cost of a lawyer may exceed the potential winnings from a claim. Courts may award attorney’s fees if the party prevails but many litigants still choose to represent themselves for fear of losing or being denied fees even in a win. A party’s financial constraints can cause the party to either drop the case entirely or proceed pro se. Even if a party wants a lawyer, they are not always available. Lawyers may not want to retain clients due to the strength of the case, reputation, caseload, or a variety of other reasons. There may also be a shortage of lawyers in the area. In some instances, a party may believe they could represent themselves better than an attorney. Whether arrogance or a true attorney effectiveness issue, parties could opt to represent themselves due to perceived or actual notions of attorney competency. Finally, a litigant may have a general aversion to lawyers due to lawyers’ reputations. Litigants may still prefer to handle their own issues rather than trust a lawyer with their problems due to mistrust and past bad experiences.
The discrepancy between pro se and represented parties’ results are important because the inability to afford a lawyer or relative utility of hiring a lawyer does not negate the importance of a case. Civil cases could involve crucial rights like shelter, liberty, and health. When pro se litigants lose due to lack of counsel, they may become homeless, lose family members, become a victim of domestic violence, or lack funds to pay medical bills. All of these issues and more are civil matters at stake where could litigants choose to represent themselves. Civil cases may also involve substantial sums of money. Although it is not enough to justify hiring a lawyer, the potential earnings still may be invaluable to a family. Even if the amount is not substantial, there could be justice concerns and rights at stake to not allow wrongdoers to commit wrongdoing without consequence. These are all important rights that will be lost if parties lose which is more likely with pro se representation.
While there are no simple solutions, some possible changes could include expanded pro se resources and training. Already, many jurisdictions provide pro se resources that help litigants understand necessary documents and procedures needed to represent themselves. However, not every locality or jurisdiction provides the same thoroughness for pro se litigants. For example, New York has document automation programs to help self-represented litigants file acceptable court documents while other states may offer a PDF template. Even courts with multiple resources could provide more coherent organization or ease of access. It can be confusing for a pro se litigant to navigate through all the resources and know exactly where to look for specific forms. All jurisdictions could continue to develop their pro se resources with tutorials and specific instructions to clarify and helpfully guide pro se litigants. Pro se education and training is another potential consideration. Courts could hold periodic sessions to instruct pro se litigants on the courts’ preferences and requirements. Alternatively, private organizations have assumed the onus of offering additional training where courts and other public institutions have not.
The challenges with these solutions are the costs required to implement change. Courts would need to expend resources and personnel to create systems and tutorials for pro se litigants. Sessions may also be too general to be helpful for any specific party, while holding in-depth sessions more frequently would add more pressure on the courts. Private organizations also have limited funding to assist every pro se applicant that requests legal assistance. These solutions are also novel ideas and do not have demonstrated results. While quick fixes may help close the gap between pro se and represented litigants, there is still much work to be done to improve access to justice.
Suggested Citation: Andrew Pei, Self-Represented Litigants and the Pro Se Crisis, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 4, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/self-represented-litigants-and-the-pro-se-crisis/.
Andrew Pei is a second-year law student at Cornell Law School. He graduated from Cornell University with a degree in Industrial and Labor Relations. He’s active in his campus church, Emmaus Road, and loves playing squash.