We use cookies on this site to enable your digital experience. By continuing to use this site, you are agreeing to our cookie policy. close

Pro Se Case Draws Legal Firepower To Narrow Target

By Emma Cueto | October 28, 2018, 8:02 PM EDT

The involvement of some of the country's biggest legal names has brought unusual attention to a self-represented litigant's appeal of an order refusing to let him amend his case, but even with the dispute sitting on the steps of the U.S. Supreme Court, experts are skeptical of its ultimate value for similar plaintiffs.

William Bond, who was originally pro se — meaning he represented himself without a lawyer — in his suit accusing numerous federal and state agencies of a conspiracy to violate his First Amendment rights, is now asking the high court to hear his appeal. Bond has had retired Seventh Circuit Judge Richard Posner in his corner during the appeal process, and David Boies of Boies Schiller Flexner LLP recently joined the case as well.

Although a formal petition has not been filed, recent filings indicate Bond plans to argue that district courts should be required to explain their reasoning when refusing to allow pro se plaintiffs to amend, even if the reasoning can be found in other orders, and that there is a circuit split on the issue.

However, observers expressed skepticism about the issue's importance, even with the attention it's gotten from Boies and Posner, and indicated they believed that there are better ways to improve access for pro se plaintiffs.

"To me it's kind of an interesting case, but it's not earthshaking," criminal justice professor Jona Goldschmidt of Loyola University Chicago, who studies pro se issues, told Law360. "And I can refer Posner to a lot more interesting pro se cases if he's looking for them."

Boies told Law360 that he did not disagree that there might be other, bigger issues in the pro se realm, but said that he still considers this to be an important question.

"It's not the only issue, and it may not even be the most important issue, but I think one of the important issues is what kind of explanation we give to pro se litigants for why the court is taking a particular action," he said.

"It is particularly important that we both treat [pro se litigants] fairly and appear to treat them fairly so that they and everyone has confidence in the ability of citizens to go to court for redress," he said. "When a litigant is simply told 'You lose' without any explanation ... they don't understand what the basis is, and without understanding the basis, there can't be any real confidence that they have been treated fairly."

He added that providing such explanations would not burden the court, especially where the court had already written such an explanation. However, he said forcing someone representing themselves to hunt for an explanation on the docket put an unfair burden on an unsophisticated litigant.

Others, however, questioned the impact of the requirement Boies and Posner are arguing for.

For Goldschmidt, a much more important issue is the duty that judges owe to assist pro se litigants. Although the American Bar Association's Model Code of Judicial Conduct does explicitly say it does not show bias for judges to make reasonable accommodations, the Supreme Court has never held that those proceeding pro se have a right to any type of assistance from judges.

"I've advocated that judges be given a duty to provide reasonable assistance, as is the case in England and Canada," he said. "To me, that's a bigger issue than giving reasons in a court order where there was a previous order that was quite detailed."

Bernadette Gargano, who runs the Pro Se Civil Litigation Practicum at the University of Buffalo School of Law and helped found the Federal Pro Se Assistance Program in the Western District of New York, also noted that the judge in Bond's suit had already outlined the problems with his case.

Bond's original complaint was dismissed on April 12, 2017, in an order that spelled out the judge's reasoning. On May 23, 2017, the judge denied Bond's motion to reopen the case and file an amended complaint in a one-page order. The Fourth Circuit later ruled that the judge did not need to spell out his reasons in the second order since they were apparent from the April 12 decision.

"I wouldn't necessarily crucify a district court judge who has issued a full decision previously on a motion to dismiss ... who then says 'I'm not going to revisit my own decision,'" Gargano said.

She also noted that Bond, unlike most pro se litigants, was able to put together a detailed, comprehensible complaint. The complaint was "cinematic," she said — the district judge in fact likened it to a political thriller at the time — but it was clear what Bond was arguing.

"Most of the time, you see short pro se complaints or, if they're lengthy, they put in all this information that is hard to dissect," she said. "If you look at the complaint here, it's well written. You can understand what he's saying. ... So then the question becomes, does it really make sense to allow him to replead."

In his brief before the Fourth Circuit, Bond — by then represented by Posner and Matthew Dowd of Dowd Scheffel PLLC — blasted the idea that he did not deserve pro se protections because he was more sophisticated than a typical pro se, pointing out that he did not have abilities on par with an attorney simply because he "understood a few court rules" and "included headings and paragraph numbers in his pleadings."

However, Goldschmidt, Gargano and Cat Itaya, director of the Federal Pro Se Legal Assistance Project run by the City Bar Justice Center in New York City, all questioned whether requiring judges to spell out their reasoning was a crucial issue confronting pro se litigants.

Both Gargano and Itaya noted that in their experience working with pro se plaintiffs, judges typically do allow people to replead, even in cases when they don't know to ask.

"Any requirement for judges to give reasoned explanation as to why they would not allow a pro se litigant to amend ... would go a long way to help them understand why it would be futile to amend," Itaya said. But there were also more fundamental gaps in understanding that often created issues, she said, such as being able to understand the Federal Rules of Civil Procedure.

"That's where I think projects like ours ... have an important role, which is helping bridge that understanding for a pro se litigant," she said.

For Gargano, the most important thing is for the Supreme Court to maintain the protections already enshrined in its 2007 Erickson v. Pardus decision, which requires judges to read pro se filings liberally.

"For pro se litigants, I really think that as long as the court holds to its same standards under Erickson, we're still in a good spot," she said.

The experts noted, however, that pro se protections are important, even if the high court rarely takes such cases.

"Two-thirds of the cases that we help pro se litigants with are allegations of employment discrimination or civil rights violations," Itaya said. "There is a perception — I think a misperception — that pro se cases lack merit. But there's actually a market failure." She said many worthy cases simply wouldn't be lucrative enough for an attorney to take on.

And pro se issues could always use more attention, they agreed.

"Posner is coming in late to the party as far as representing and advocating for pro se litigants, but he certainly is a welcome presence in this area of law," Goldschmidt said.

--Editing by Brian Baresch.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.