Pro Se Civil Appeals: the Problem and Special Standards and Rules
| Publication year | 2016 |
| Pages | 63 |
Columns
Appellate Practice
Pro Se Civil Appeals: The Problem and Special Standards and Rules
By Marcy Glenn.
This column provides practical, how-to articles on appellate practice that discuss recent decisions from the Colorado Supreme Court, the Colorado Court of Appeals, the U.S. Supreme Court, and the Tenth Circuit. Column Editors Marcy G. Glenn (mglenn@hollandhart.com), Christina F. Gomez (cgomez@hollandhart.com), and Stephen G. Masciocchi (smasciocchi@hollandhart.com) are partners with the law firm of Holland & Hart LLP, and are members of the firm's Appellate Practice Group. Reader feedback is welcome.
An early 19th-century proverb observes: "A man who is his own lawyer has a fool for a client."[1] Courts and commentators frequently invoke that maxim in the context of a lawyer who elects to appear pro se in a judicial proceeding,[2] but it can apply equally to self-represented nonlawyers.[3] Unfortunately, many individuals cannot afford to retain counsel and instead appear pro se, including in a surprising number of appeals in state and federal courts in Colorado.
This is the first of two articles that will consider from multiple angles pro se civil appeals in Colorado state courts and in the U.S. Court of Appeals for the Tenth Circuit. This first article provides background on the prevalence of self-representation in federal and state courts in Colorado, considers the implications of pro se appeals, and discusses special legal standards and rules applicable to those appeals. The second article, currently slated to appear in the June 2016 issue, will report on resources available to self-represented litigants and opportunities for lawyers who wish to represent or in other ways assist parties who otherwise would proceed pro se.
The Prevalence of Self-Representation in Civil Appeals
Individuals have a right to appear "on behalf of themselves"—"pro se" in Lati[4] —in federal and Colorado courts.[5] The right has multiple statutory and constitutional sources,6though it is not absolute. "It is firmly established that where necessary to stop abuse of the judicial process [the Colorado Supreme Court] has the power to enjoin a person from proceeding pro se in any litigation in state courts and administrative agencies."[7] The U.S. Supreme Court and the Tenth Circuit have recognized their comparable authority.[8]
Pro se representation has reached extreme proportions in the Colorado appellate courts and in the Tenth Circuit, which is based in Colorado and hears appeals from decisions of federal district courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
In the two intermediate appellate courts that sit in Colorado, the most recent available statistics show that approximately 29% to 35% of all non-criminal appeals involve at least one pro se litigant.[9] As used in this article, "non-criminal appeals" or "civil appeals" refers to all appeals except for those from a judgment of conviction of criminal charges or following petitions for post- conviction r elief other than habeas corpus petitions.
In the Colorado Court of Appeals, during fiscal year 2014 (from July 1, 2013 through June 30, 2014), at least one party was self-represented in 524 of the court's 1,506 non-criminal cases, or 34.8% of those appeals. This figure is skewed by the fact that appellants in the vast majority of appeals from Industrial Claim Appeals Office (ICAO) decisions, involving claims for unemployment insurance or workers'compensation, proceed pro se. In fiscal year 2014, ICAO appeals represented 16.5% of the court's non-criminal docket, and employees represented themselves in 80% of those cases. By contrast, "only" 26.4% of the remaining civil appeals involved a pro se litigant.[10]
In the Tenth Circuit, a self-represented party participated in 272 of 928, or 29.3%, of the non-criminal cases pending in December 2015. Prisoners seeking habeas corpus relief or asserting civil rights claims under federal or state law brought most of those pro se appeals (152 of 272, or 55.9%). Of the remaining non-criminal appeals, 120 of 730, or 16.4%, involved a self-represented party; these included appeals from agency decisions, civil appeals in which the pro se party was not incarcerated, and bankruptcy appeals.[11]
Self-representation also occurs in the Colorado Supreme Court, but less frequently in absolute terms, given that Court's discretionary jurisdiction and consequently smaller caseload.[12]
The Costs of Self-Representation
The self-represented party's lack of legal training and experience renders representation by counsel more desirable in the vast majority of civil appeals. Most pro se litigants are unfamiliar with the appellate process and the art of effectively prosecuting or defending an appeal. They typically have not mastered the procedural rules and statutes that govern appeals; they do not know the law related to, among other subjects, appellate jurisdiction, preservation of issues, and standard of review; and they have not received training on effective appellate practice, including how to select and persuasively present the strongest arguments. Add the fact that pro se parties generally lack access to resources for efficient (but often time-consuming and costly) legal research, and for collaboration with lawyer colleagues, and it is apparent that a self-represented party labors at a decided disadvantage.
These circumstances impact both pro se litigants and the appellate process as a whole. Most fundamentally, the self-represented party suffers from lack of experience, expertise, and often, basic competence. The deficits may be fatal to the appeal, sometimes due to arguments foregone because they were not adequately preserved below or advanced on appeal, or arguments rejected by the court for lack of effective presentation.[13]
For the judicial process as a whole, the result is equally serious. The appellate process suffers when self-represented parties ask the court for relief in excess of its jurisdiction; do not know and follow the controlling rules and procedural statutes; do not understand or correctly apply the standard of review; do not grasp, identify, and discuss the controlling legal and record support for their positions; and do not respond to their opponents' arguments. Either the court must do that work itself—assisting the pro se litigant while simultaneously serving as a neutral decision maker and trying to efficiently manage its docket—or the court must decide the appeal based on substantially lacking arguments and advocacy. Neither outcome is desirable. Moreover, as discussed below, federal and Colorado law limits the extent to which an appellate court may assist a pro se party.
Federal and Colorado Standards for Judicial Indulgence in Pro Se Cases
While the Tenth Circuit and the Colorado appellate courts share an abundance of pro se appeals, those courts apply different standards when they consider pro se cases, including pro se appeals.
Federal Standard
In 1972, the U.S. Supreme Court issued its four-paragraph per curiam decision in Haines v. Kerner.[14]In a clause somewhat buried in a sentence making a distinct point (whether the plaintiff had satisfied the standards for stating a claim for relief), the Court articulated a liberal standard to be applied to pro se complaints:
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."[15]
Federal courts have applied the italicized text in Haines in thousands of cases—civil and criminal, at the trial level and on appeal—to require the liberal review of complaints as well as other pleadings a nd papers filed by pro se parties. Among its many decisions relying on Haines, the Tenth Circuit has ruled that it would consider on appeal objections to a magistrate judge's...
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