David Boies And Judge Posner Call Upon Supreme Court To Bring Justice To One-Third Of Federal Litigants Getting The Shaft

Pro se litigants in large swaths of the country are at a distinct disadvantage.

Nearly one-third of federal civil litigants are pro se. That number should shame the legal profession to its core. While there are, to be sure, some kooky folks out there representing themselves pro se in frivolous actions that no lawyer would ever take on, many are only choosing to represent themselves because the costs of hiring attorneys to pursue their claims have become downright prohibitive. Sufficiently high-stakes torts and putative class actions can attract lawyers working on contingency but as cynical political operatives continue the assault on “trial lawyers” and “costly class actions” more and more people are left in the cold when they try to assert their rights.

William Bond’s pro se case alleges that a number of officials, including Maryland’s then-U.S. Attorney Rod Rosenstein, interfered with his protests of the judicial system and initiated a campaign of unauthorized surveillance and harassment against him. A federal judge dismissed Bond’s complaint out of hand, but what was more galling — and ultimately set in motion the appellate proceedings that have now reached the Supreme Court — was the judge’s refusal to provide any explanation to Bond of why his complaint was dismissed or any guidance on how the pro se litigant could cure defects in his complaint.

Astoundingly, this is actually the standard in a minority of circuits, including the Fourth Circuit. In these minority circuits, if the reasons for dismissal are “apparent from an investigation and analysis of the litigation record” no other explanation is needed. But “apparent” is in the eye of the beholder and federal judges and seasoned litigators are quick to drop the boom on pro se litigants for not understanding enough of 1L Civ Pro. If you don’t have a 100-page outline on torts what are you even doing in court anyway? As James Sandman of the Legal Services Corporation has pointed out, the words “pro” and “se” aren’t immediately obvious to a non-lawyer looking to represent themselves. So the system begins the process of alienating and marginalizing pro se litigants from the very jump when they direct potential litigants to seek help from the “pro se” office.

It’s this fundamental unfairness that first attracted Judge Richard Posner to Bond’s case. Along with Matthew Dowd, Judge Posner fought Bond’s case to the Fourth Circuit, losing when the body issued an incredibly lazy opinion.

For the Supreme Court fight, Bond’s case has been taken up by David Boies along with BSF’s Joanna Wright and Emily Harris (Judge Posner and Matthew Dowd are still named on the filing). This week, they filed the cert petition and it lays out the threat to justice posed by this hostility to pro se litigants:

This circuit split is especially problematic because the majority of pro se litigants bring claims seeking remedies for violations of the U.S. Constitution and federal civil rights statutes. See infra p. 17. These litigants—who are predominantly women, minorities, and the poor—are four times more likely than represented parties to have their cases dismissed under Federal Rule of Civil Procedure 12(b)(6)…. Serious due process concerns arise when courts dismiss civil rights claims brought by vulnerable populations and protected classes because, without representation, these litigants cannot interpret the record to identify how to successfully amend their complaints. For most pro se litigants, it will be unreasonably difficult, if not impossible, to review the record and identify the reasons in the record that the court denied leave to amend. The minority rule requires that pro se litigants undertake an investigation and analysis that would be difficult for many fledgling attorneys.

That’s a critical point. Lost in the wave of crazy white people using the pro se process to rail against maritime courts based on advice from a talking salamander is the fact that so many of these cases involve more vulnerable populations asserting civil rights claims.

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At the end of the day, requiring judges to articulate their opinions isn’t an onerous burden to place on a judge. As Boies told me, it also strikes at the very legitimacy of the court system because if people don’t feel they can get a straight answer from a neutral arbiter it erodes confidence in the courts.

In a real sense, all the case asks of the Supreme Court is to rule that federal judges explain their opinions to pro se litigants as they would to a layperson. That shouldn’t be a stretch as these litigants really are lay people. As the petition notes, “[p]roviding an explanation can make the difference between a pro se litigant having a meritorious case heard and that same litigant — who typically is a vulnerable individual bringing a core constitutional claim — being blocked from the court at the pleading stage.”

Or perhaps a better term would be “civilians” because “lay” implies a lack of sophistication when it’s often more the lack of battle scarring from decades of exposure to law’s pretentious efforts to make common sense justice a complicated puzzle of ephemeral doctrines and references to dead languages.

The fact that circumstances have conspired to bring these civilians to the courthouse steps shouldn’t be an invitation for federal judges to stage a community theater rendition of Kafka’s Before the Law. Hopefully, the Supreme Court can come together on this point.

(Full petition on the next page…)

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Earlier: Would You Watch ‘Law & Order: Liquidated Damages’?
World’s Most Fortunate Pro Se Litigant Represented By Judge Posner Now Also Represented By David Boies
Judge Posner Loses Appeal In Laughably Lazy Fourth Circuit Opinion
Judge Posner Chastises District Court’s ‘Laziness’… And He’s Got A Point
Judge Posner Files First Brief Since Leaving The Bench, Lights Into Federal Judiciary
Judge Posner Taking On Pro Se Case After Fourth Circuit Did Something Incredibly Stupid


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.