Exploring methods to improve management and fairness in pro se cases: a study of the pro se docket in the Southern District of New York.

• Author: Rosenbloom, Jonathan D.

INTRODUCTION

Lost in the world of legal procedure and substantive case law, the pro se litigant (1) often finds herself confused and overwhelmed, if not frustrated and bitter. (2) Throughout their litigation, pro se litigants are confronted with numerous difficulties including complying with procedural rules, (3) understanding substantive legal concepts, articulating relevant factual allegations, and simply knowing how to proceed with their action. Despite the liberal reading granted to pro se litigant pleadings, (4) pro se litigants are almost unanimously ill equipped to encounter the complexities of the judicial system.

In wrestling with these complexities, pro se litigants often turn to the court for guidance. (5) Judges and court staff, restricted in their ability to assist the litigants, (6) find themselves feeling frustrated by the pro se litigant's inability to grasp legal concepts or to comply with the rules of civil procedure. (7) In order to respond effectively to pro se litigant inquiries, the court staff is required to have not only a thorough understanding of the legal issues, but also the ability to describe the issues in an easily accessible manner. This is not an easy task, especially when the litigant is enraged, frustrated, and has a limited education and/or English language ability. (8)

Court personnel, accustomed to experienced counsel, are rarely trained to address the anger, fear, frustration, and communication barriers that are common hurdles when working with pro se litigants. Most court employees may have some legal knowledge, however, they rarely have any formal training in working with pro se litigants, the non-legal issues that arise, and the complexities of describing the law in an easily accessible manner. (9) New employees learn by observing other employees' interaction with the litigants for several weeks, but do not receive any formal training from professionals on how to communicate with pro se litigants and address their issues.

Communicating with pro se litigants ia made even more difficult because the law governing what advice, if any, can be given to assist pro se litigants is decidedly difficult to comprehend. If a pro se litigant is fortunate enough to have access to a member of the court, (10) her questions will often go unanswered as she is introduced to the standard maxim that court personnel can provide: "procedural but not substantive advice." (11) While the difference between procedural and substantive advice may be instinctively ascertainable by some attorneys, it is not only difficult to explain to a lay person but, more importantly, it is almost never understood by pro se litigants--thus adding to their frustration. (12)

The unique issues raised by pro se litigants are also prevalent in pro se litigant pleadings. Court personnel reviewing pro se pleadings are charged with the responsibility of deciphering why the submission was filed, what the litigant is seeking, and what claims she may be making. This task is particularly difficult because the submission may be rambling and illogical, if not completely illegible. While it is not uncommon to encounter completely frivolous, if not delusional, pro se complaints, it is essential and fundamental that the court reviews each complaint for any possible claim. (13) This, again, is a task requiring extensive time and patience. (14)

The reality is that an overburdened court does not always have the time and patience to fully weigh each allegation and to review every claim no matter how meritorious. With the perceived increase in pro se cases, (15) courts are forced to fashion methods to resolve cases quickly. The result is that pro se cases, which often require more of the court's time and patience than cases represented by trained counsel, may be given cursory or inadequate assistance (16)--making it extremely difficult for the pro se litigant to prosecute her case, frustrating the litigant's right of access to the courts, (17) and risking the possibility that a meritorious claim will be improperly dismissed. (18)

Faced with these issues and experiencing my own frustrations, (19) I did some preliminary research into what measures, if any, other courts and court staff have implemented to address the issues raised by pro se litigants. I quickly discovered that there were very few guides or studies on pro se litigation. While there was a sizeable amount of commentary and anecdotal information, there was only one study that compiled actual data on federal pro se cases. (20) The study, however, was performed in the Northern District of California in San Francisco in 1993, prior to the enactment of the Prison Litigation Reform Act ("PLRA") on April 26, 1996, (21) which significantly altered the processing and adjudicating of pro se cases. (22) Furthermore, that study only included cases filed during 1993, and did not include pro se cases filed by inmates, which amount to more than 60% of pro se cases. (23) There were no other studies examining pro se dockets in federal court, and I was unable to find any other data that tracked, detailed, or analyzed the actual filing and litigating of pro se cases.

I also discovered that while several district courts had developed responses to address the pro se anomaly, these responses were done in a vacuum with little or no statistical data reviewing actual pro se cases. (24) Similarly, little or no statistical data was reported setting forth which, if any, of the responses have been effective. (25) Moreover, each district court's response had been constructed in the absence of a cohesive overall plan or any communication among the district courts . (26)

In an effort to fill this void, this Article begins with a statistical study of non-habeas corpus, non-bankruptcy pro se litigation in the United States District Court for the Southern District of New York. The goal is to collect and organize critical data previously unavailable and to report the data in a usable format.

Part I begins by thoroughly reviewing the current lack of data on pro se dockets in federal district courts. Part I continues by setting forth the parameters used for this Study, designed to respond to the lack of existing data and the inability to access pertinent information. Part II analyzes the results of the study in order to present information previously unavailable, such as what aspects of pro se litigation are most troubling for the court, and what the prototypical pro se case is, if there is one. Part II seeks to determine where innovative programs should be directed to best assist the litigant and alleviate the burdens on the court. It also examines how the PLRA has affected pro se litigation. Part III builds on this analysis by suggesting a cohesive plan to enable the courts to function more smoothly. The primary focus in making these suggestions is two-fold: to provide the litigant with the necessary means to fairly prosecute her case, and to increase court efficiency. These goals can work together, in that the more efficiently the system works, the more time the court has to review meritorious cases and assist pro se litigants, thereby giving the litigant her "day in court."

This Article should not be understood, however, to be advocating pro se litigation. While the Article does explore the tension between encouraging pro se litigation and increasing the efficiency of the courts, I believe the best solution to the issues raised by pro se litigation is to obtain legal counsel. (27) Obtaining legal counsel not only protects the litigant's rights, but it also assists the court by allowing attorneys to screen out frivolous claims prior to filing. Since obtaining legal counsel is not always possible, alternatives are set forth which explore a variety of programs aimed at encouraging assistance in pro se litigation, treating pro se litigants with dignity, and effectively and judiciously addressing the present and growing issues raised by pro se litigation. Finally, while the Article refers to and often discusses numbers and percentages, it is essential to remember that pro se litigants are people who believe they have been wronged, and are entitled to access to the courts and due process under the law.

1. THE STUDY

   Who files a case pro se? What are their lawsuits about? What issues do they raise? How are their complaints processed and resolved? These are all questions this Article addresses by performing a statistical study unlike previous studies on pro se litigation. This Part begins by reviewing the current shortage of, and need for, data on federal pro se litigation. The Section continues by presenting the parameters used for the study, which were designed to address the current lack of data on federal pro se litigation.

   1. Existing Data

      The common perception of pro se litigants as being abusive (28) and creating a burden on the court system (29) is not a well-documented perception. (30) There has been little statistical evidence from this district, or any other, analyzing who the pro se litigant is, what claims she raises, and how the claims are resolved. As stated above, there is currently no study relying on actual data recording the processing and resolution of federal pro se litigation after the enactment of the PLRA on April 26, 1996. The absence of data on pro se cases after the enactment of the PLRA is critical because the PLRA potentially affected the majority of pro se cases by curtailing prisoner litigation and litigants seeking to waive the filing fee. (31) Although the PLRA is rather complex, the six most relevant provisions affecting pro se litigation are:

      1. Inmates and detainees are the only group of individuals who are required to pay the $150 filing fee, regardless of the outcome of their case or whether they have sufficient funds in their prison account. 28 U.S.C. [section] 1915(b); (32)

      2. Regardless of whether the filing fee has been paid, there is now a mandatory dismissal of...