Pro Se Case Management
for Nonprisoner Civil Litigation

Jefri Wood

Federal Judicial Center
2016
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch.
While the Center regards the content as responsible and valuable, this publication
does not reflect policy or recommendations of the Board of the Federal Judicial
Center.

first printing

Contents
Acknowledgments ...................................................................................... v
Preface ..................................................................................................... vii
I. Procedural Fairness: Access and Ethics ................................................. 1
A. Procedural Fairness .......................................................................... 3
1. Having Their Say and Being Heard............................................... 6
2. Provide Clear Explanations of the Process and the Litigant’s
Obligations ................................................................................... 9a. Avoid Legalese: Use Plain English............................................... 9b. Explain the Process ................................................................... 11
3. Treat All Litigants with Equal Respect ........................................ 14
4. Neutral, Unbiased Treatment ..................................................... 16
B. The Ethics of Assistance................................................................. 18
C. Security.......................................................................................... 22
II. Suggested Case-Management Practices for Civil Pro Se Litigation ..... 25
A. Manage the Case Before It Is Filed or Docketed ............................ 26
1. Standardized Forms .................................................................... 27
2. Pro Se Guides or Manuals ........................................................... 30
3. Consider Early Screening of Pro Se Complaints .......................... 31
a. By the Court ............................................................................ 31
b. By a Legal Assistance Program .................................................. 34
B. Be a Proactive Case Manager from the Start .................................. 36
1. Consider Holding an Early Status Conference and Other
Conferences as Needed ............................................................... 38
2. Take Steps to Limit the Number of Motions .............................. 44
C. Encourage Settlement .................................................................... 47
D. Explore the Possibility of Limited-Scope Representation ............. 51
E. Discovery ....................................................................................... 58
F. Summary Judgment Warning and Standards ................................. 62
1. Providing Notice of Rule 56 Requirements ................................. 62
2. Court Discretion to Grant, Deny, or Delay the Motion .............. 63
3. Declaration in Lieu of Affidavit ................................................... 67
G. Final Pretrial Conference and Trial ................................................ 68
1. Narrow the Issues for Trial at the Final Pretrial Conference ........ 70
2. Evidentiary Issues ........................................................................ 73
3. Court Practices and Procedures ................................................... 77
4. Other Matters ............................................................................. 79
5. During the Trial.......................................................................... 81
a. Opening Remarks..................................................................... 81

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Pro Se Case Management for Nonprisoner Civil Litigationb. Testimony ................................................................................ 82
c. Judicial Questioning ................................................................. 84
d. Admission of Evidence in General ............................................ 85
e. Issuing the Decision ................................................................. 87
H. Interpreters .................................................................................... 89
1. Statutes and Case Law ................................................................. 89
2. Alternatives to Certified Interpreters ........................................... 91
I. Challenging Litigants ..................................................................... 94
1. Mental or Emotional Issues ......................................................... 94
2. Abusive Litigants ......................................................................... 98
III. Legal Issues Regarding Nonprisoner Pro Se Litigants ....................... 101
A. Pleadings or Complaint ............................................................... 103
1. General Requirements ............................................................... 103
2. Opportunity to Amend Pleadings ............................................. 105
3. Repleading ................................................................................ 108
B. Summary Judgment ..................................................................... 111
1. Providing Notice of Rule 56 Requirements ............................... 111
2. Providing Notice Before Converting Motion to Dismiss into
Summary Judgment Motion ..................................................... 114
C. Default Judgments ....................................................................... 115
1. Generally Disfavored ................................................................. 115
2. Pro Se Litigants ......................................................................... 116
3. Intent to Defend ....................................................................... 118
D. Competency ................................................................................ 119
1. Competency Exam Under Rule 17(c)(2) ................................... 119
2. Procedural Issues ....................................................................... 123
E. Evidentiary Issues and Judicial Discretion .................................... 124
1. Court Discretion to Call and Question Witnesses and Develop
Facts.......................................................................................... 125
2. Court Discretion to Exclude Evidence ...................................... 131
3. Privileges ................................................................................... 132
a. Spousal Privilege ..................................................................... 132
b. Psychotherapist-Patient Privilege ............................................ 133
F. Sanctions ..................................................................................... 135
1. Dismissal ................................................................................... 136
2. Filing Injunctions...................................................................... 139
G. Treatment of Individual Pro Se Litigants May Vary Depending on
Ability.......................................................................................... 144
VI. Conclusion ..................................................................................... 147

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Acknowledgments
The Federal Judicial Center thanks the Ninth Circuit Pro Se Litigation Committee which, under the leadership of its first Chair, Judge
Edward M. Chen (N.D. Cal.), suggested that the FJC undertake thisproject. Thanks are also owed to Judge Chen and his successors,
Magistrate Judges James P. Donohue (W.D. Wash.) and Charles R.
Pyle (D. Ariz.), for their review of the draft.
The final product also benefited from review by the following
judges and attorneys: Chief Judge Ruben Castillo (N.D. Ill.); Magistrate Judge Tim Baker (S.D. Ind.); Magistrate Judge Suzanne H.
Segal (C.D. Cal.); Michael C. Frische, (Pro Se Law Clerk, S.D. Ind.);and Manjari Chawla (Supervising Attorney, Federal Pro Bono Project, N.D. Cal.).
Special thanks are owed to Magistrate Judge Lois Bloom(E.D.N.Y.), not just for her thorough review of the draft andthoughtful suggestions for improvement, but also for so generously
sharing her extensive knowledge of pro se matters with the author
and for her many contributions to Center programs over the years.
The author would also like to thank his FJC colleagues Sylvan A.
Sobel and Donna Stienstra for their patient encouragement and insightful suggestions, and Susanna McCrea for editing the text andtaming the many footnotes.

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Preface
When litigants come to federal court without a lawyer, they are at a
disadvantage. Even if their case is strong, they can easily get lost ina maze of procedural rules and arcane terminology. A single error
can doom their chances, long before a trial date is set.1

At approximately 25,000 per year, nonprisoner pro se filings make up
a significant portion of the federal civil caseload2 and present theirown challenges in a system geared toward both parties being represented by attorneys. Many districts have begun taking steps to better
handle the steady stream of “self-represented litigants,” as pro ses are
sometimes called,3 such as providing specific forms and improved
web pages designed for pro se litigants, compiling extensive manuals
to educate pro ses about how to proceed with their cases, and working with local bar associations to provide pro bono legal help.
The Strategic Plan for the Federal Judiciary, originally released by
the Judicial Conference of the United States in 2010 and reaffirmed
and updated in 2015, focuses on seven issues, each with several strategies and goals. Issue 5 is “Enhancing Access to the Judicial Process,”which begins by asking,
How can courts remain comprehensible, accessible, and affordable forpeople who participate in the judicial process while responding to demographic and socioeconomic changes?
....
1. Pro Se Centers Help Even the Odds for Litigants Without Lawyers, Judiciary News,
Aug. 20, 2015, available at http://www.uscourts.gov/news/2015/08/20/ pro-se-centers-helpeven-odds-litigants-without-lawyers.
2. In fiscal year 2015, 25,117 nonprisoner pro se civil cases were filed in the district
courts, or 9% of the total 279,036 civil filings. Admin. Office of the U.S. Courts, 2015 Annual Report of the Director, at table C-13 (2016).
3. Although “self-represented litigant” is often used in state courts and academic literature, the vast majority of federal cases and materials still use “pro se litigant” or simply “prose.” Note that while there is some debate over whether civil litigants have a constitutionalright to represent themselves, a statutory right is provided by 28 U.S.C. § 1654 (“In all
courts of the United States the parties may plead and conduct their own cases personally or
by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct
causes therein.”).

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Pro Se Case Management for Nonprisoner Civil Litigation

Courts are obligated to be open and accessible to anyone who
initiates or is drawn into federal litigation, including litigants, lawyers, jurors, and witnesses. The federal courts must consider carefully whether they are continuing to meet the litigation needs ofcourt users.4

The Strategic Plan acknowledges that “federal court processes arecomplex” and “making courts readily accessible is difficult. Providing
access is even more difficult when people look to the federal courts toaddress problems that cannot be solved within the federal courts’ limited jurisdiction, when claims are not properly raised, and when judicial processes are not well understood.”5 While the plan focuses on all
litigants, not just pro ses, that last part aptly describes many pro selitigants, who all too often attempt to bring claims that do not fallwithin the jurisdiction of the federal courts, have trouble raising andpursuing their legitimate claims, and have a limited understanding ofcourt practices and procedures. Acknowledging that pro se litigants
may need extra help, the plan frequently emphasizes making sure that“all who participate in federal court proceedings . . . understand theprocess,” recognizes that “[c]ontinued efforts are needed . . . to makecourts more accessible for jurors, litigants, witnesses, and others,” andcalls for the development of “best practices for handling claims of pro
se litigants in civil and bankruptcy cases.”6
The Federal Judicial Center has taken several steps in recent years
to assist the federal courts in meeting the challenges of handling
claims of pro se litigants. The Center conducted two surveys for the
Judicial Conference Committee on Court Administration and CaseManagement. The first study sought information from district court
clerks of court about actions they have taken to assist pro se litigants
and to assist staff in handling pro se cases. District court chief judges
were also surveyed about the impact of pro se litigants on judges and
4. Judicial Conference of the United States, Strategic Plan for the Federal Judiciary 13(September 2015) [hereinafter Strategic Plan 2015].
5. Id. at 13–14.
6. Id. at 14. See also id. at 13 (“Strategy 5.1. Ensure that court rules, processes and procedures meet the needs of lawyers and litigants in the judicial process.”).

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Prefacechambers staff and on what measures the judges have taken to meetthe demands of these cases. A summary of the surveys’ findings was
published in 2011.7 In conjunction with that study, the Center created an online resource in 2013, which is designed “to provide a central
forum through which court staff, attorneys, and judges may sharemethods and resources available for handling pro se cases. The sitecollects pro se materials that currently appear on each of the district
court websites nationwide.”8 Judges and other court personnel areencouraged to explore this site to see the variety of steps other districts have taken to manage pro se cases before they reach the judges.9
This guide builds upon the Center’s surveys and website, as wellas other Center programs and materials on nonprisoner civil pro selitigants.10 Although this publication is not meant to be the “bestpractices” collection called for in the Strategic Plan, offering a wide
selection of suggestions and recommendations in one place should

7. Donna Stienstra, Jared Bataillon & Jason A. Cantone, Assistance to Pro Se Litigantsin U.S. District Courts: A Report on Surveys of Clerks of Court and Chief Judges (Federal
Judicial Center 2011) [hereinafter FJC Survey], available at http://fjconline.fjc.dcn/sites/
default/files/2012/ProSeUSDC.pdf.
8. Federal Judicial Center, “District Court Pro Se Litigation: Resources for Litigants,
Court Staff, Attorneys, and Judges” [hereinafter FJC Pro Se Webpage], http://fjconline.fjc.
dcn/content/pro-se-litigation-resources-litigants-court-staff-attorneys-and-judges. See also Federal Judicial Center, “Bankruptcy Pro Se Debtors and Creditors: Resources for Parties, Court
Staff, and Judges,” http://fjconline.fjc.dcn/content/254237/bankruptcy-pro-se-debtors-andcreditors-resources-parties-court-staff-and-judges.
9. See also Admin. Office of the U.S. Courts Website, “Best Practices—District Methods Analysis Program on Pro Se Case Processing” [hereinafter DMAP Website], available at
http://jnet.ao.dcn/resources/reports-and-publications/oversight-internal-controls-and-audit/
internal-control-and-audit/frequent-findings-and-best-practices/judiciary-methods-analysisprogram (follow “District MAP Study” > “Best Practices 2015 – Pro Se Case Processing”)(offering information on standardized forms; e-filing and e-service; initial case processing andscreening; creating a handbook for pro se litigants; pro bono programs and resources; and IT
products for managing pro se cases).
10. See, e.g., DVD: Court Web: Best Practices to Manage the Pro Se Docket (Federal
Judicial Center March 25, 2015); National Conference for Pro Se Law Clerks (Santa Fe,
N.M. Sept. 9–11, 2015); DVD: Court to Court: Pro Se Collaboration Services andStructure (Federal Judicial Center Sept. 19, 2012) (discussing the Federal Pro Se Clinic in
the Central District of California).

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enable judges to develop their own set of best practices suitable for
their courtroom and the types of pro se litigants they see.
Part I discusses the concept of procedural fairness and the goal ofincreasing access to justice and addresses some of the potential ethicalconcerns over providing assistance to a pro se party. There is not a
great deal of material on these issues specific to federal courts, so state
court and academic resources are often relied upon. Part II examines
specific case-management techniques that federal courts have appliedor that have been recommended as potentially useful in pro se cases.
Part III provides an in-depth look at many of the legal issues that canarise during pro se litigation, focusing on federal rules of civil procedure, rules of evidence, and case law, in order to give judges a better
understanding of what they must or cannot do, while providing additional guidance on the many actions judges may take in their discretion.
We hope this publication, in conjunction with the Center’s otherefforts, will provide a better understanding of nonprisoner pro se litigation and the steps that may be taken to improve the experience forboth litigants and judges.

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I.

Procedural Fairness: Access and Ethics

Discussions of how to manage pro se cases often include words like “difficult,” “challenging,” or even “headache.” In fact, a recent FJC program
featured a panel discussion entitled “Relief for Pro Se Headaches.” To
some extent, this view is understandable.
Pro se litigation is difficult for us to handle at least in part because it
doesn’t fit into the neat box of our traditional system of litigation, theadversarial method of resolving disputes. That system assumes thatparties know the law, are adept at procedure and the rules of evidence,and can marshal significant facts, present their side of the case to thefactfinder thoroughly and lance the arguments of the opponent. But
pro se litigants are capable of little if any of that.11

Dealing with a large number of pro se litigants “who may not be informed about law and court procedures poses significant implications forthe administration of justice—especially, demands on court staff andresources and ethical dilemmas about how to compensate for selfrepresented litigants’ lack of knowledge without jeopardizing judicial
requirements of neutrality and objectivity.”12 Pro se cases are, “suffice it
to say, a type of litigation that’s just riddled with problems on every level.”13
As challenging as it may be for courts to handle pro se litigation, it iseven more so for the average pro se litigant. “It’s easy to forget what a
confusing, intimidating environment court can be for people not familiar with it. The procedures, terms, and norms that have come to seem
simple or obvious to legal professionals are anything but that to most

11. John C. Sheldon, Thinking Outside of the Box About Pro Se Litigation, 23 Maine B.
J. 90, 91 (Spring 2008). See also Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22(2d Cir. 1983) (“The lay litigant frequently brings pleadings that are awkwardly drafted,motions that are inarticulately presented, proceedings that are needlessly multiplicative.”).
12. Conference of Chief Justices and Conference of State Court Administrators, Final
Report of the Joint Task Force on Pro Se Litigation at 3 (Rockport, Me. July 29, 2002)[hereinafter CCJ & COSCA Report].
13. Lois Bloom, Statement at Pro Se Litigation Panel Discussion, at National Workshop for District Judges I (Federal Judicial Center Mar. 22, 1995).

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Pro Se Case Management for Nonprisoner Civil Litigation

other people.”14 As a result, “pro se filers often are confused, frightened,
and lacking the confidence to negotiate what is a complicated system,”15
so that “even pro se litigants who have meritorious claims may not get adecision on the merits because they cannot navigate the often complex
procedural rules that govern federal litigation, leading to resentment andfrustration.”16
Yet, as the Strategic Plan noted, courts must be comprehensible andopen and accessible to all litigants, not just those who have attorneys.
“Access to justice” cannot simply mean that litigants have a right to get
into court but are then left to struggle once there. “Practically speaking,our job is to provide access to the opportunity for justice. Our job does
not involve creating a special set of rules for these cases,” since everyone
must follow the Federal Rules of Civil Procedure. “However, if we canmake the process more transparent, more understandable by ordinary
people, then that promotes the court’s function of doing justice.”17
The question, then, is not so much whether to help pro se litigants,
but how to do so while still heeding the court’s ethical obligation to be
impartial. This section will examine the expectations of pro se litigants
14. Kelly Tait, Effective Communication with Self-Represented Litigants, Case in Point, at
12 (National Judicial College 2011).
15. Leveling the Playing Field: Help for Self-Filers, The Third Branch (Admin. Office of
the U.S. Courts, Washington, D.C.), July 2011, at 9 (quoting Judge A. Howard Matz (C.D.
Cal.)). See also Judge Lois Bloom, Pro Se Issues, Phase II Orientation Seminar for U.S. Magistrate Judges (Federal Judicial Center Oct. 21, 2014) [hereinafter Bloom, Pro Se Issues 2014](“Most pro se litigants are scared to death. Most pro se litigants are not the crazy, serial filers
that give all the rest of pro se litigants a bad name.”).
16. The Public Counsel Federal Pro Se Clinic, Annual Report: February 2009–
February 2010 at 1 [hereinafter Public Counsel Annual Report]. See also Judge Lois Bloom,
Relief for Pro Se Headaches, Panel Discussion at the National Workshop for Magistrate Judges (Federal Judicial Center Apr. 24, 2013) [hereinafter Bloom, Pro Se Headaches], available at
http://fjconline.fjc.dcn/content/relief-pro-se-headaches-april-24-2013 (“the pro se litigant
doesn’t know which end is up”).
17. Bloom, Pro Se Issues 2014, supra note 15. See also Supreme Court of Louisiana Task
Force on Pro Se Litigation, Guidelines for Best Practices in Pro Se Assistance at 3 (2004)[hereinafter Louisiana Task Force] (“If every citizen has a constitutional right to access courts
and a right to self-representation, then courts have a responsibility to make those rights
meaningful by providing access and assistance.”); CCJ & COSCA Report, supra note 12, at
10 (“courts have an obligation to ensure that self-represented litigants have access to thecourts”).

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I. Procedural Fairness: Access and Ethics

and some of the ways courts can make the judicial process more accessible while honoring their ethical obligations to both parties.18

A. Procedural Fairness
Discussion of pro se litigation usually focuses on what actions judges andother court personnel can take to help pro se litigants navigate the often
complex rules and procedures of federal civil litigation. Part II will outline those steps in some detail, but it would be helpful to first examine
what it is that civil pro se litigants are seeking or expecting when theybring their cases to court and how that may influence what steps judges
should take toward ensuring that they have genuine “access to the judicial process.”
In recent years there has been a growing discussion of the needs ofpro se litigants that, rather than focusing only on legal or procedural
problems they may face, addresses the sociological or psychological aspects of how unrepresented litigants feel about the overall litigation experience. Did they have the chance to fully state their grievance? Did they
understand the process? Did they feel they were treated fairly by thejudge and by the court system as a whole?19
These aspects of the litigation process are sometimes collectively referred to as procedural fairness or procedural justice. The goal of procedural fairness is for all litigants, whether represented or not, to feel thatthey:
1. have a voice in the process, are given the opportunity to be heard,
are listened to, and have genuine input into the decision-making
process;
18. Judges may reasonably disagree on the amount and types of assistance that they orother court staff can or should provide to pro se parties in light of ethical concerns and their
duty to be impartial. These materials are not intended to direct judges to any particular wayof handling pro se cases, but rather to provide options for judges to consider in light of theirindividual views and practices.
19. These concerns apply mainly to what some have termed “good faith” pro se litigants—those who have a genuine complaint, whether ultimately successful or not, and who
look to the courts to provide a fair venue for airing it. Those who engage in vexatious or
harassing litigation, or seek to make a political statement, are likely less interested in thefairness of the process than in winning, making a point, or carrying on a grudge.

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Pro Se Case Management for Nonprisoner Civil Litigation

2. understand what is happening and what they are supposed to do
through each stage of the litigation;
3. are treated with respect and on an equal footing with attorneys andrepresented parties; and4. are treated fairly by the judge (and the judicial system in general) ina neutral, unbiased fashion.20

Although much of the procedural fairness discussion has occurred instate courts, some of the basic ideas are reflected in the core values of
the Strategic Plan, such as “fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with
dignity and respect.”21
The focus on process for cases involving pro se litigants is particularly important because studies have shown thatwhile attorneys were most often concerned with fairness in terms of
the substantive legal outcomes of cases, Citizens’ views of thecourts[] are heavily influenced by their perceptions of the courts’ability to deliver a fair process. . . . [R]esearch has repeatedly established that when litigants perceive that a decision-making process isfair, they are more likely to be satisfied with the outcome.22

20. These elements of procedural fairness are summarized from several sources. See, e.g.,
Judges Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction, A White Paper of the American Judges Association (Sept. 26, 2007); Cynthia Gray,
Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants (American Judicature Society 2005); Handling Cases Involving Self-Represented Litigants: A National Bench
Guide for Judges at 2-5 to 2-9 (Self-Represented Litigation Network, National Judicial College, National Center for State Courts & American Judicature Society 2008) [hereinafter
National Bench Guide]; Tait, supra note 14, at 12–14; Rebecca A. Albrecht, John M.
Greacen, Bonnie Rose Hough, and Richard Zorza, Judicial Techniques for Cases Involving
Self-Represented Litigants, 42 The Judges’ Journal, no. 1, 16 (Am. Bar Ass’n Winter 2003).
21. Strategic Plan 2015, supra note 4, at 2. “As part of its commitment to the core valueof equal justice, the federal judiciary seeks to assure that all who participate in federal court
proceedings—including jurors, litigants, witnesses, and observers—are treated with dignity
and respect and understand the process.” Id. at 14.
22. National Bench Guide, supra note 20, at 2-4 to 2-5. See also Burke & Leben, supranote 20, at 14 (“While the public emphasizes fair procedures, judges and attorneys focus onfair outcomes, often at the expense of attention to meeting the criteria of procedural fairness
that are so important to the public’s perception of the court.”).

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I. Procedural Fairness: Access and Ethics“Most people . . . are in fact more willing to accept a negative outcome in their case if they feel that the decision was arrived at througha fair method.”23
Conversely, “the perception of unfair or unequal treatment ‘is the
single most important source of popular dissatisfaction with theAmerican legal system.’”24 Thus, for example, even if a court follows
legal procedural rules to the letter and applies them equally to bothsides, litigants will not view the process as a fair one if they believethat their lack of knowledge of those rules and the consequences of
not following them prevented the litigants from adequately voicing
their concerns. “[A] judge who scrupulously respects the rights of litigants may nonetheless be perceived as unfair if he or she does notmeet these expectations for procedural fairness.”25
Judges have the opportunity to increase the perception of fairness
in pro se cases by how they communicate with the litigants. “Whatjudges choose to say and do connects directly to the four major components of procedural fairness: if litigants felt they had a voice, understood what was happening, felt they were treated with respect, andthought the judge was trying to be fair.”26 Achieving procedural fairness, then, relies heavily on good communication, in one form or another, between the judge and litigant.
Taking the time to listen to the positions of both sides and tocommunicate clearly the basis of the ultimate decision can result ina feeling of calm reassurance and stability that is almost palpable inthe courtroom. In such circumstances it is not uncommon for even

23. Burke & Leben, supra note 20, at 5–6. See also Chief Justice Dana Fabe (Alaska),
State of the Judiciary, Address Before the Joint Session of the Alaska House of Representatives and the Senate (Feb. 13, 2013) at 3, available at http://courts.alaska.gov/soj/state13.pdf(“What people should expect . . . from the process is to understand what happened, andwhy. Even if a judge’s decision ultimately goes against them, people can best accept it if they
believe they were fully heard and fairly treated.”).
24. Burke & Leben, supra note 20, at 3.
25. Id. at 6.
26. Tait, supra note 14, at 14.

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Pro Se Case Management for Nonprisoner Civil Litigation

the losing party to leave the courthouse with a sense of satisfaction
at being treated with dignity and respect.27

Focusing on procedural fairness can help guide courts in choosing
specific ways to assist pro se litigants. What follows is a discussion of
the key elements of procedural fairness, specific issues courts should
be aware of, and actions courts can take to ensure a pro se litigant’s
right to be heard in a fair and impartial manner.

1. Having Their Say and Being Heard
Perhaps the single most important action a judge can take to foster
procedural fairness is allowing litigants to give voice to their concerns.
It doesn’t matter how big or how sophisticated the case is, people
need to be heard. . . . If you did a survey of litigants . . . and say,“what did you like and not like about the court system?” Number
one—“I did not feel heard. I never got a chance to tell my story.
Nobody listened to me.”. . . People have this tremendous sense of
not being heard.28

Note that there are two components to this aspect of procedural fairness: being allowed to tell their story and being listened to.
For litigants to believe that they have had an opportunity to participate in the decision-making process, [t]here must be an opportunity for input into the decision-making process [and t]his input musthave some effect on the decision-maker. If litigants perceive that
their contribution is not heard or considered, then [their] “voice” islost.29

It is important to remember that listening can begin in the clerk’s
office or the court library before litigants even get to court, and canstart them off on a positive note.
Most of the time they’re here because they have some business withthe court and are agitated and somewhat angry because they feel no27. National Bench Guide, supra note 20, at 2-8.
28. DVD: Court Attorney Web: The Psychology of Litigation (Federal Judicial Center
Oct. 24, 2012) (feat. Judge Jeremy D. Fogel), available at http://fjconline.fjc.dcn/content/
309805/court-attorney-web-psychology-litigation.
29. National Bench Guide, supra note 20, at 2-5.

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I. Procedural Fairness: Access and Ethics

one is listening to them and/or disregarding their claim, whether rightly or wrongly, that some injustice is being worked upon them. We’ve
found that most of the time when we provide a friendly and sympathetic ear and listen to their tale of woe, and then if possible point
them to some treatise that may or may not help them, they leave in ahappier state of mind and with a sense that the federal court is not acold and uncaring bureaucracy as they might have earlier believed.30

Once the case does get to a judge, an early pretrial conference
presents a good opportunity to allow the pro se litigant to speak andto let them know you will listen. “Give pro se litigants a little bit ofyour time and attention. . . . Invite them to speak. It puts the wholetenor of the proceeding in a different place.”31 Start by summarizing
the complaint, but then say, “‘why don’t you tell me in your own
words, why is it that you brought this suit and what is it that you’rehoping to accomplish?’ . . . And just that act of giving that person thefloor for several minutes to start an initial conference changes the dynamic in the courtroom.”32
An added benefit to demonstrating early on that you are listening
to them is that it may make litigants more inclined to listen to you.
After all, as one judge puts it, before coming into court a litigant“doesn’t know me from Adam, so why should they listen to me if I’m
not going to listen to them?”33
Letting a pro se plaintiff speak at an early conference can also
provide an opportunity to make sense of pleadings that may be sopoorly drafted it appears certain that the plaintiff has no case. However, “what it was, was that the person couldn’t convey in writing
30. Letter from Gregory Townsend, Branch Librarian, Tenth Circuit, U.S. Courts Library, Albuquerque Branch, to Brenda Baldwin-White, Senior Judicial Education Attorney,
Federal Judicial Center (Nov. 2, 2012) (on file with author).
31. Judge Lois Bloom, Pro Se Issues, Phase II Orientation Seminar for U.S. Magistrate
Judges (Federal Judicial Center Oct. 22, 2013) [hereinafter Bloom, Pro Se Issues 2013] (audio available at http://fjconline.fjc.dcn/content/pro-se-issues-october-22-2013). See also Civil
Litigation Management Manual 141 (Judicial Conference of the United States, 2d ed. 2010)(“A conference with the judge can also send a powerful message to pro se litigants that theircases are receiving the court’s attention.”).
32. Bloom, Pro Se Issues 2014, supra note 15.
33. Id.

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what they could convey when they came before the court. . . . That is
our job—not to make the case for the pro se litigant, but to allow the
pro se litigant the opportunity to make the case.”34
At and after the initial conference, assuring pro se litigants thatthey will have sufficient opportunity to speak throughout the courseof the proceedings may help to avoid their attempting to speak at thewrong time or inappropriately. Judges should “[m]ake clear that[they] will hear all sides. Research has shown how quickly most litigants respond to cues that they will be fully heard. They then feel lessneed to interrupt or to tell everything in one long narrative. It relaxes
everyone, which also saves time.”35
Similarly, give the parties a chance to speak before issuing a rulingor making a decision. “Litigants report that this is very reassuring,particularly if the judge explains early that he or she will do this. The
technique reduces litigants trying to cover everything at once and cutsback on their interrupting, thus reducing the time needed for the
hearing.”36
One other facet of communication to keep in mind is nonverbal
cues, such as body language.
Decades of studies demonstrate that 60–93 percent of the meaningof a message comes through nonverbal channels such as vocal inflections, tone of voice, posture, gestures, eye contact, facial expressions, pauses, etc.
Remember that if the nonverbal behaviors don’t match thewords, people are much more likely to believe the messages they
think are being sent nonverbally. So, if the judge says that it’s important that the [pro se litigant] understands but then speaks
34. DVD: Court Web: Best Practices to Manage the Pro Se Docket (Federal Judicial
Center Mar. 25, 2015) [hereinafter Court Web: Best Practices] (feat. Judge Lois Bloom).
35. Judge Mark A. Juhas, Judge Maureen McKnight, Associate Justice Laurie D. Zelon,& Richard Zorza, Self-Represented Cases: 15 Techniques for Saving Time in Tough Times, 49
The Judges’ Journal, no. 1, at 18 (Am. Bar Ass’n Winter 2010). See also Tait, supra note 14,
at 14 (Try to “be clear about when the [pro se] will have the opportunity to speak. Letting
someone know this ahead of time makes it less likely the person will interrupt and more
likely that the person will be ready to interact appropriately.”).
36. Juhas et al., supra note 35, at 19.

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I. Procedural Fairness: Access and Ethics

quickly, barely looks up or pauses, and doesn’t check for comprehension, the interpretation is likely to be that expediency is more
important than comprehension. The most effective messages areones where the words and the nonverbal communication are congruent—where they’re sending the same message and reinforcing
each other.37

Even something as simple as “[l]ooking at a person while they are
speaking shows attentiveness and makes it easier to see the speaker’s
body language and to regulate the interaction better.”38 For more information about various methods of communication, tips for more
effective communication, and potential communication problems,
the earlier-cited National Bench Guide provides an in-depth discussion at pages 9-1 to 9-20.

2. Provide Clear Explanations of the Process and the
Litigant’s Obligations
a. Avoid Legalese: Use Plain English
The first step toward making sure pro se litigants understand the process is to make sure that they understand what you are saying.
A major potential barrier to effective communication with [pro ses]is the specialized language of the law. While the language used incourt needs to be accurate and appropriate, it’s just as importantthat it also be comprehensible if [pro ses] are to have a meaningful
opportunity to represent themselves. Adapting the message to theaudience is one of the key skills of an effective communicator. This
includes choosing simple, concrete words when possible and giving
clear explanations of expectations, processes, and legal terminology

37. Tait, supra note 14, at 13. See also National Bench Guide, supra note 20, at 9-2(“Nonverbal communication can be even more significant than verbal communication, andlistening may be the most used but least taught communication skill.”).
38. National Bench Guide, supra note 20, at 9-11. See also Gray, supra note 20, at 53(“Pay attention and act like you are paying attention. If you take notes or refer to books orinformation on a computer screen during a proceeding, explain what you are doing so thelitigants understand that they have your attention.”).

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Pro Se Case Management for Nonprisoner Civil Litigation(test explanations in advance). Focus on transparency and accessibility.39

Remember that “nothing in the code of judicial conduct (or elsewhere) requires a judge to use the jargon, abbreviations, acronyms,
shorthand, and slang that frequently mark communications amonglegal professionals but inevitably leave a self-represented litigant feeling confused and left out.” Avoiding legalese “neither gives an advantage to self-represented litigants nor prejudices represented litigants.”40 Judges and attorneys are “so used to speaking in acronyms
and legal jargon that we don’t even hear it . . . . Be a whole lot more
careful, patient, and explain these terms. It’ll take more time, but . . .
it will actually make a difference in resolving the cases.”41
This practice should apply equally to written materials. If anything, it may be even more important, when writing decisions or orders, not to “use legal jargon, abbreviations, acronyms, shorthand, orslang” but to write “in plain English explaining the decision, addressing all material issues raised, resolving contested issues of fact, andannouncing conclusions of law.”42 It may also be advisable to explainorders in court so you can ascertain whether the litigants understandthe substance of the order. “Clearly explaining the terms of the orderis well worth the time. Explaining the reasoning may also be helpful.
Even when litigants don’t agree with the outcome, they are more like-

39. Tait, supra note 14, at 13. See also Massachusetts Supreme Judicial Court, Judicial
Guidelines for Civil Hearings Involving Self-Represented Litigants with Commentary, at 1(2006) [hereinafter Massachusetts Guidelines] (“Most self-represented litigants are unfamiliar with complicated legal terms. The use of such terms can delay proceedings and necessitate
lengthy explanations of concepts that are more readily understood if stated in plain English.”).
40. Gray, supra note 20, at 19.
41. Bloom, Pro Se Headaches, supra note 16.
42. Gray, supra note 20, at 54, 56. See also Zoe Tillman, Q&A: Judge Posner on Writing,
Law School and Cat Videos, Nat’l L.J. (May 18, 2016) (“[T]here is no need for terminologicalcomplexity in law. I think everything we do, the judges do, can be expressed in ordinary
English. And I would think it very desirable for opinions to be written in a way that everybody can read it.”) (quoting Judge Posner).

10

I. Procedural Fairness: Access and Ethics

ly to comply if they understand that the decision was not arbitrary.”43
You want to make sure the pro se litigant understands the reasons
behind a decision or order so that it is clear how the decision wasreached and that his or her concerns were listened to.
If your district has a pro se manual with a glossary of terms, besure all pro se litigants know about it. If your district does not haveone, consider borrowing one from another district to provide to pro
ses. The pro se handbook from the Northern District of California,
for example, has a full ten-page glossary of legal terms, from “action”
to “witness box.”44 The District of Minnesota, on the other hand, hasa separate page on the court’s website with a similarly lengthy list oflegal terms,45 in addition to its already sizeable (118-page) pro se
guide. Both of these guides also define many terms in their text as
they walk litigants through the stages of a case.
b. Explain the Process
The process of a federal civil case covers what forms to use, where to
sit in the courtroom, how to file an appeal, and everything in between. Every step has its own rules and procedures, and many, if not
most, pro se litigants have little knowledge of any of it. While it isprimarily the litigant’s responsibility to learn how to file, where to sit,
and what to do, the Strategic Plan acknowledged that courts shouldmake sure that everyone participating in federal court proceedings
understands the process.46

43. National Bench Guide, supra note 20, at 6-19. See also Public Counsel Annual Report, supra note 16, at 5 (“A disturbingly large number of litigants come to the Clinic withbasic reading and comprehension problems; some cannot even read Court orders and the
opposition’s filings. Others can decipher the words in the documents but cannot comprehend even the simplest of Court orders.”).
44. N.D. Cal., Representing Yourself in Federal Court: A Handbook for Pro Se Litigants 61–70 (2014) [hereinafter N.D. Cal. Handbook], http://www.cand.uscourts.gov/
prosehandbook. For other district court pro se guides, see the Center’s pro se litigation resource page at http://fjconline.fjc.dcn/content/pro-se-litigation-resources-litigants-courtstaff-attorneys-and-judges.
45. See D. Minn. Website, http://www.mnd.uscourts.gov/Pro-Se/Glossary.shtml.
46. See Strategic Plan 2015, supra note 4, at 15.

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Pro Se Case Management for Nonprisoner Civil Litigation

Judges “need to explain the process” and “should aim for transparent and engaged judging, not detached judging. . . . Remember,engagement and neutrality are two different things. . . . Being engaged does not mean you’re putting your finger on the scale” by explaining what the process is.47 Moreover, “it cannot reasonably besaid that impartiality requires a judge (indeed an entire court system)
to stand by and watch helplessly while self-represented litigants
flounder when simple procedural accommodations would at least enable them to be heard on the merits with evidence presented in acomprehensible fashion.”48
Pro se litigants “are often confused about the status of their case,what their next step should be, what the court has ordered, or even
how to deal with conflicting orders that they didn’t even know existed.”49 To help pro se litigants better understand what is expected ofthem, it has been recommended that courts explain the different aspects of court procedure to all parties in the case—for example, theorder in which the parties speak, the time they have, opportunity forrebuttal, not interrupting the other party, the moving party’s burdenof proof, what evidence may be presented, and what evidence must be
excluded.50
Evidentiary matters can be particularly problematic for pro se litigants, since many “do not suspect the existence of rules of evidence,and practically all do not understand them. . . . Unless a judge explains why he or she is excluding what pro se parties consider valuableevidence, they are likely to be frustrated by the exclusion, and to grow

47. Bloom, Pro Se Issues 2014, supra note 15. See also Massachusetts Guidelines, supranote 39, at 4 (“Judges should make a reasonable effort to ensure that self-represented litigants
understand the trial process.”).
48. Gray, supra note 20, at 48.
49. National Bench Guide, supra note 20, at 1-4. See also Gray, supra note 20, at 20(consider “making a self-represented litigant aware of the possible consequences of violating
an order entered by the court, . . . that violation of an order to appear for a deposition may
result in a dismissal with prejudice, and providing a self-represented litigant with a notice of
trial that describes the nature of proceedings in unambiguous terms”).
50. Gray, supra note 20, at 26–27.

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I. Procedural Fairness: Access and Ethics

suspicious of the proceeding.”51 Taking a more active role in eliciting
or clarifying relevant evidence, providing detailed explanations forrulings regarding admission or exclusion of evidence, and preventing
opposing attorneys from taking advantage of the unrepresented, canhelp ensure a fair proceeding and, just as importantly, assure the pro
se litigant that he or she has been treated fairly.52
Although the responsibility for explaining these and other aspectsof the process ultimately lies with judges, a litigant can be provided
with a substantial amount of helpful information well before the initial pretrial conference. As noted in the preface, many districts are
now offering forms, instructions, guides, self-help kiosks, and, in alimited number of districts, even legal advice and assistance at pro se
legal clinics, some of which are inside the courthouse. Consider
providing information on the resources available to pro se litigants—
including possible pro bono assistance—as a standard part of any early order in a pro se case, such as the one setting the initial pretrial
conference. Almost any information that educates a pro se litigant
about the proper steps to take and how to take them will leave less forthe judge to do later. As one judge noted, “forms, manuals, kiosks
and other resources are extremely helpful and a great relief for me. I
don’t have enough time to answer every pro se litigant’s questions
about procedures. Having these resources is a great reference tool and

51. Peter L. Murray & John C. Sheldon, Should the Rules of Evidence Be Modified for
Civil Non-Jury Trials?, 17 Maine Bar J. 30, 32–33 (2002). See also Richard Zorza, Toward
Best Practices in Complex Self-Represented Cases, 51 The Judge’s Journal, no. 1, 36, 39 (Am.
Bar Ass’n Winter 2012) [hereinafter Zorza, Toward Best Practices] (“Evidence that requires
foundation—documents and hearsay—seems to produce the most time-wasting confusion intrials. A focus on the required foundations in a pretrial conference will improve trial efficiency. Example: To decide about admitting the financial records you want to present, we must know
where they came from and how they have been kept. Maybe we can agree here which will be entered?”).
52. See Massachusetts Guidelines, supra note 39, at 9 (“Judges may require counsel toexplain objections in detail, and judges should explain their evidentiary rulings.”); National
Bench Guide, supra note 20, at 2-4 (“To decide cases fairly, judges need facts, and in selfrepresented litigant cases, to get facts, judges often have to ask questions, modify procedure,
and apply their common sense in the courtroom to create an environment in which all the
relevant facts are brought out.”).

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Pro Se Case Management for Nonprisoner Civil Litigation

clearly helps some of the litigants.” 53 The Third Circuit has specifically encouraged the use of litigation manuals by pro se litigants, calling them “a valuable resource” that can “help litigants assert and defend their rights when no lawyer is available. And they can reduce theadministrative burden on court officials who must grapple with inscrutable pro se filings. . . . Without a doubt, these manuals are informative, and inexperienced litigants would do well to seek themout.”54 For more information on court-provided resources, see infra
Part II.A.

3. Treat All Litigants with Equal Respect
How pro se litigants are personally treated by judges, courtroom staff,
and opposing attorneys can greatly affect whether they feel they weretreated fairly and their case was properly heard. “When litigants aretreated as valued members of society, they are more likely to feel satisfied that the process is fair. Litigants must be treated with dignity andrespect by judges and courtroom staff.”55
53. Court Web: Best Practices, supra note 34. See also Massachusetts Guidelines, supranote 39, at 3 (“Judges should encourage the provision of information and services to better
enable self-represented litigants to use the courts. Judges also should encourage selfrepresented litigants to use these resources. . . . While, at first glance, this role seems more
appropriately assigned to court staff, it is important that judges support this function.”).
54. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 246 & n.5 (3d Cir. 2013) (alsonoting that if the district does not have its own manual, a litigant could look for one from“other district courts or from public-interest organizations . . . . through an internet search”).
See also Self-Represented Litigant Guide Recommendations and Best Practices at 1 (follow“Pro Se Handbook Recommendations” hyperlink to download MS Word document file on
DMAP Website, supra note 9) (recommending such manuals and noting that they can “further ensure equal access to justice by providing unrepresented litigants with procedural guidance on the filing and litigation of cases in a federal district court, . . . can help selfrepresented litigants avoid common errors that cause delays [, and] . . . can also ease the burden on court personnel in answering procedural questions and dealing with problematic
submissions”).
55. National Bench Guide, supra note 20, at 2-8. See also id. at 2-7 (“if the judge treatspeople politely, and exhibits a clear concern for their rights, litigants are likely to view theentire process as fair”); Massachusetts Guidelines, supra note 39, at 8 (“Judges should ensurethat proceedings are conducted in a manner that is respectful to all participants, including
self-represented litigants.”).

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I. Procedural Fairness: Access and Ethics

The Code of Conduct for United States Judges does not focus on
pro se litigants, but it does call for a judge to “be patient, dignified,
respectful, and courteous to litigants, jurors, witnesses, lawyers, andothers with whom the judge deals in an official capacity. A judge
should require similar conduct of those subject to the judge’s control,
including lawyers to the extent consistent with their role in the adversary process.”56
Very similar language in the American Bar Association’s Model
Code of Judicial Conduct57 has been interpreted to place
an affirmative obligation on a judge both to set an example of courtesy toward self-represented litigants for others to follow and to ensure that court staff receive the training and supervision necessary
to help them in the often difficult task of providing patient service
to self-represented litigants. In addition, the provision requires
judges to exercise their authority in the courtroom to prevent attorneys from bullying or misleading conduct meant to take advantage of a self-represented litigant.58

Judges should also let pro se litigants know that the same respect andcourtesy toward courtroom personnel and the opposing party is expected from the litigants themselves and “that the rude conduct displayed on television shows like Judge Judy is not acceptable in a real

56. Judicial Conference of the United States, Code of Conduct for United States Judges
Canon 3(A)(3) (2014).
57. Model Code of Judicial Conduct Canon 2, Rule 2.8(B) (Am. Bar Ass’n 2011) (“Ajudge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court
staff, court officials, and others with whom the judge deals in an official capacity, and shallrequire similar conduct of lawyers, court staff, court officials, and others subject to thejudge’s direction and control.”). See also Burke & Leben, supra note 20, at 22 (“How litigants are treated by court employees from the moment they enter the courthouse door—or
the moment they encounter security personnel at a metal detector—sets the tone.”).
58. Gray, supra note 20, at 15–16. See also National Bench Guide, supra note 20, at 614 (“The judge can promptly redirect a party who begins testifying on irrelevant information. The judge should also be quick to silence any interruptions by either party, reminding them that each side will have an opportunity to ask questions or present opposing testimony in turn. As judges well know, the temptation to interrupt during hearings is not exclusive to self-represented litigants.”).

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Pro Se Case Management for Nonprisoner Civil Litigation

courtroom.”59 Consider also warning them that, unlike the televisionshows, their case is not likely to be resolved in half an hour.

4. Neutral, Unbiased Treatment
In cases involving a pro se litigant and a party represented by an attorney, judges must be particularly careful “to avoid creating the appearance of bias in favor of attorneys or represented parties. Respectful demeanor toward all participants in court proceedings is the primary method of ensuring self-represented litigants do not experienceor perceive bias, particularly by refraining from harping on a litigant’s
pro se status” and showing equal respect for both the pro se litigant
and the opposing attorney.60
Judges should also attempt to ensure that court employees do notseem to show any favoritism, or even just overfamiliarity, toward a
represented party’s attorney.
Many attorneys appear often before court staff and judges and may
know them well. These attorneys may walk around the courtroom
freely and joke with clerks in a way that a self-represented litigant
or an outsider would never be allowed to. The self-represented litigant may perceive this as favoritism or may think that the judge
will be prejudiced in favor of the attorney.61

It is also important that a judge’s nonverbal behavior indicatesneutrality. “Even facial expressions and body language can convey toparties and lawyers in the proceeding, jurors, the media, and others
an appearance of bias or prejudice. A judge must avoid conduct that
may reasonably be perceived as prejudiced or biased62 and should aim
to “treat all parties in as equivalent a manner as possible with [the59. Gray, supra note 20, at 52. See also Bloom, Pro Se Headaches, supra note 16 (“Youhave to set the tone in your courtroom. Whether or not somebody is represented, don’t let
anybody call each other liars. It’s unacceptable. I just tell them it won’t be tolerated.”).
60. Gray, supra note 20, at 17. See also Massachusetts Guidelines, supra note 39, at 9
(ensure that pro ses are “addressed with titles connoting equal respect to that afforded opposing counsel”).
61. National Bench Guide, supra note 20, at 6-19.
62. Model Code of Judicial Conduct Canon 2, Rule 2.3, cmt. 2 (Am. Bar Ass’n 2011).

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I. Procedural Fairness: Access and Ethics

judge’s] nonverbal behaviors—turning toward them, amount of eye
contact, etc.”63
If the judge questions witnesses, as often happens when a pro se isinvolved, he or she should “take care that his or her language, tone,
and manner remain neutral during questioning so that the judge displays no attitude towards the merits of the case or the credibility of
the witness.”64 This is particularly important in jury cases, so
judges should instruct the jury that they are not to consider questions asked by the judge as any indication of the judge’s opinion as
to how the jury should decide the case and that if the jury believes
that the judge has expressed or hinted at any opinion about thefacts of the case, they should disregard it.65

Even without a jury, “judges should explain that the questions arebeing asked to clarify testimony and that they should not be taken as
any indication of the judge’s opinion of the case.”66 This could help
to avoid having a litigant question whether an adverse ruling was theresult of judicial bias.
The aim of avoiding the appearance of bias would alsosuggest that a judge should give an explanation for a ruling to aself-represented litigant, if not to every litigant. . . . By explaining aruling either in writing or orally on the record, a judge avoids conveying to self-represented litigants “the impression that their efforts
to studiously prepare their case were not worthy of comment” orthat the judge is biased towards the other side.67

63. Tait, supra note 14, at 14.
64. Gray, supra note 20, at 34.
65. Massachusetts Guidelines, supra note 39, at 11.
66. Id. See also Juhas et al., supra note 35, at 18 (“Explain at the beginning of the hearing that you may be asking questions and that this will not indicate any view on your part. It
will merely mean that you need to get the information to decide the case. This makes itmuch easier to ask questions. It also reassures litigants that you are thinking about their concern for fairness. Some judges also find it useful to explain key governing evidentiary rules,
such as hearsay, that are likely to be applied in practice.”).
67. Gray, supra note 20, at 20 (citation omitted).

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Pro Se Case Management for Nonprisoner Civil Litigation

B. The Ethics of Assistance
Many judges are concerned that taking certain actions to assist a pro
se litigant could be seen as indicating favoritism toward that litigant
or unfairly disadvantaging the other party, thereby running afoul of
ethics rules.
[W]hen dealing with pro se litigants, judges must walk a fine line
between two competing considerations. On the one hand, if thejudge treats the pro se party as if he or she were represented by anattorney, the judge runs the risk of effectually impeding the pro separty’s access to the courts. On the other hand, if the judge is toolenient with the pro se party, the judge’s impartiality may be called
into question.68

How is a judge to balance providing assistance to pro se litigants, sothat they have meaningful access to the judicial system, with the ethical duty to be impartial? Thisis the ethical dilemma that self-represented litigants pose for judges.
Judicial canons of conduct require that judges maintain impartiality
toward all parties, which some judges interpret as a prohibition on
providing self-represented litigants with assistance during court hearings, especially for cases in which the opposing party is represented.
Canons of conduct also require judges to “accord every person who
has a legal interest in a proceeding, or that person’s lawyer, the right tobe heard according to law.” Many judges find it difficult to reconcile
the requirement to provide self-represented litigants with an opportunity for a fair hearing with the requirement to remain impartial.69

68. Louisiana Task Force, supra note 17, at 13.
69. CCJ & COSCA Report, supra note 12, at 4 (internal citations omitted). See also
Judge Beverly W. Snukals and Glen H. Sturtevant, Jr., Pro Se Litigation: Best Practices from a
Judge’s Perspective, 42 U. Rich. L. Rev. 93, 98 (2007) (“Judges . . . must balance considerations of fairness to represented parties with due process requirements mandating that pro selitigants receive meaningful hearings. This balancing act requires judges to make difficult
decisions, such as determining how much guidance to give a pro se litigant on substantive
law or how to treat a meritorious case when the pro se litigant has failed to comply withcourt procedures, while remaining impartial to both the represented and pro se parties.”).

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I. Procedural Fairness: Access and Ethics

The American Bar Association and several states have attempted
to reconcile these competing interests by amending ethics rules andproviding specific examples of what kind of assistance is authorized,
many of which reflect the principles of procedural fairness discussed
earlier. The ABA’s Model Code of Judicial Conduct, Canon 2, Rule2.2, states that a judge “shall perform all duties of judicial office fairly
and impartially.” The explanatory commentary was amended in 2007
to specify that “[i]t is not a violation of this Rule for a judge to makereasonable accommodations to ensure pro se litigants the opportunity
to have their matters fairly heard.”70 Rule 2.6(A) emphasizes the importance of allowing the litigant to be heard: “A judge shall accord to
every person who has a legal interest in a proceeding, or that person’slawyer, the right to be heard according to law.”71
Several of the states that have adopted these two rules (or similar
versions) elaborated in commentary to the rules on what “reasonableaccommodations” judges may take to protect and facilitate a pro selitigant’s right to be heard, specifying some combination of the following steps:• liberally construing pleadings• providing brief information about the proceedings andabout evidentiary and foundational requirements• modifying the usual order of taking evidence• attempting to make legal concepts understandable• using plain English instead of legal jargon• asking neutral questions to elicit or clarify information• explaining the bases for rulings• referring to resources that are available to assist pro se litigants in preparing their case72
70. Model Code of Judicial Conduct Canon 2, Rule 2.2 & cmt. 4 (Am. Bar Ass’n2011).
71. Id. at Rule 2.6(A). See also commentary to Rule 2.6(A) (“The right to be heard is an
essential component of a fair and impartial system of justice. Substantive rights of litigants
can be protected only if procedures protecting the right to be heard are observed.”).
72. See Self-Represented Litigation Network, Model Code of Judicial Conduct Provisions on Self-Represented Litigation: Options for Alternative Comment Language Prepared19

Pro Se Case Management for Nonprisoner Civil Litigation

As one commentator succinctly put it, “under the code of judicial
conduct, no reasonable question is raised about a judge’s impartiality
when the judge, in an exercise of discretion, makes procedural accommodations that will provide a diligent self-represented litigant
acting in good faith the opportunity to have his or her case fairly
heard.”73 More specifically,[i]t does not raise reasonable questions about a judge’s impartiality
for the judge to explain to all parties how the proceedings will be
conducted, for example, to explain the process, the elements, thatthe party bringing the action has the burden to present evidence insupport of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered.74

Such techniques “simply remove some of the mystery from a systemthat is supposed to serve its citizens, not baffle them.”75
The changes in ethics rules were prompted in part by concerns
that, to avoid the appearance of favoritism, some judges
may hesitate to inform a party that for a document to be considered, a proper foundation must be laid, for fear that giving the litigant this information will be seen as taking sides. Or the judge may
hold back from pursuing a line of questioning, even if the answers
would provide information needed to decide the case fairly, to prevent the appearance of trying to help the litigant provide the“right” answer. In either case, lack of communication from thejudge has potentially hampered one side of the case and inhibitedthe court’s ability to base its decision on the law and the facts.
. . . There is nothing in the Model Code, in the reports of disciplinary proceedings, or in the case law that prohibits such nonin Support of Potential State Activity in Response to 2012 Resolution 2 of the Conference ofChief Justices and the Conference of State Court Administrators 2–4 (Mar. 2013) (contains
rules from Colorado, Iowa, Louisiana, Maine, Ohio, and Washington, D.C.).
73. Gray, supra note 20, at 5. See also Massachusetts Guidelines, supra note 39, at i(“While the legal and ethical constraints upon the courts and the judiciary, such as thosecontained in the Code of Judicial Conduct, apply with equal force to cases involving selfrepresented litigants, judges have broad discretion within these boundaries.”).
74. Gray, supra note 20, at 2.
75. Id. at 5.

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I. Procedural Fairness: Access and Ethics

prejudicial judicial communication or engagement. Rather, what isprohibited is nonneutrality or bias. Indeed, we know of no reported
cases in which a decision has been reversed or a judge disciplined
merely for such nonprejudicial engagement in factfinding. To theextent that decisions are reversed, or judges disciplined, it is for aggressively biased activity in a case.76

A group of state court administrators has suggested that the need forsuch judicial intervention—and the attendant ethical concerns—
could be reduced by providing pro se litigants with better information before they appear in court and developing more standardized, court-wide procedures regarding pro se litigation. “Court systems should recognize that the ethical concerns can actually be ameliorated somewhat by the effective implementation of self-represented
litigant assistance. Litigants who are better prepared for what willtranspire in the courtroom will require less intervention or assistanceon the part of the court.”77
By comparison, the Code of Conduct for United States Judges
does not single out pro se litigants, but the principles align with thegeneral concept of procedural fairness. Canon 3 states that judges“should perform the duties of the office fairly, impartially and diligently. . . . (4) A judge should accord to every person who has a legal
interest in a proceeding, and that person’s lawyer, the full right to beheard according to law.” Although the Code of Conduct does notelaborate on what judges should do to ensure a pro se litigant receives
his or her “full right to be heard according to law,” federal courts
have increasingly utilized or recommended various actions to promote procedural fairness for pro se litigants, as will be shown by thecase-management techniques discussed infra in Part II.

76. National Bench Guide, supra note 20, at 2-6 to 2-7. Accord Karen Adam, Evidence
and Ethics in Self-Represented Litigation, Case in Point at 22 (National Judicial College 2009)(“On appeal, trial judges are commended for being helpful rather than hurtful to selfrepresented litigants. In only the most extreme circumstances have judges been reversed or
sanctioned for assisting self-represented litigants in presenting their cases.”).
77. Conference of State Court Administrators, Position Paper on Self-Represented Litigation 4 (Aug. 3, 2000).

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Pro Se Case Management for Nonprisoner Civil Litigation

C. Security
One other point warrants mention: There is some thought that increasing the perception of procedural fairness may lessen the risk ofabusive or violent behavior from disgruntled litigants. An article
from the National Judicial College magazine Case in Point addressed
the concern that “whenever a litigant feels that counsel or the judge
was unsympathetic or handled his or her grievance inappropriately,
anything from a disruption in court to a direct threat can occur.”
The article noted that, along with more traditional security safeguards, the Committee on Judicial Security of the Judicial Conference of the United States, and the Administrative Office of theUnited States Courts, “are working on ways to assist [pro se] litigants with legal advice so they have a fuller understanding of thecomplexities and nuances of court proceedings. This type of effort isessential to the education of self-represented litigants and lessens thepotential for inappropriate behavior or communications.”78
The article also advises judges to treat others with respect, not become embroiled in the controversy, and not allow things to become“personal.”
Interviews with a number of suspects who have carried out violent
attacks against judicial officers reveal that the suspects felt they
were being treated unfairly and were not provided an opportunity
to be heard during the court proceedings. Many felt they had norecourse other than to respond with violence. Judges are advised
to do their best to explain the process, particularly to selfrepresented litigants. Sometimes even using terms like “The
Court is required to impose a mandatory sentence of . . .” insteadof “You richly deserve the punishment that I’m going to impose. . .” helps communicate that you are just doing your job and that
it is not personal.79

78. John F. Muffler & James R. Brandlin, Judicial Security: Implementing Sound Protective Intelligence Methodologies, Case in Point at 16–17 (National Judicial College 2011).
79. Id. at 18.

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I. Procedural Fairness: Access and Ethics

A Ninth Circuit task force on pro se issues similarly concluded that
if pro se litigants felt they were treated fairly and had a better understanding of court processes, it would lower the risk that some would
resort to violence.80

80. Ninth Circuit Judicial Council Task Force on Self-Represented Litigation, Final
Report at 52 (Oct. 2005). “[J]udges and their staff might benefit from instruction in methods of effective communication, both orally and in writing, with pro se litigants, as well as
methods to diffuse tense situations and advance effective case management. Although judicial training resources are limited, many of these techniques appropriately fall within the
category of improving court security and could be funded as such.” Id. at 45.

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II. Suggested Case-Management Practices for
Civil Pro Se Litigation
Cases involving a pro se litigant present special challenges for several
reasons, not the least of which is your obligation to ensure equal justice for litigants who may have little understanding of legal procedureor the law. At each stage in the case, you may need to take actions
not required in cases in which all parties are represented by counsel.81

As shown in Part I, assistance to pro se litigants is called for on thebasis of fairness and adequate access to justice and generally is notprecluded by ethical concerns, which may in fact favor assistance.
Another reason to assist pro se litigants is that it is often simply themore practical, efficient way to handle these cases. Much of what a
court does to assist pro ses is to help them get more quickly to theroot of their case and to move it forward. “More than other types ofcases, pro se litigants don’t make the case move forward, don’t know
how to move the case forward.”82 In this sense, assistance to pro ses
mirrors the recommendation for all civil litigation to have greater judicial involvement through earlier and more intensive case management in order to reduce cost and avoid delay. This section will focus
on practical methods of managing pro se cases—methods that serve
the dual purpose of providing more procedural fairness for the pro selitigant while helping the court manage its caseload more efficiently.
The following list of suggestions and recommendations is designed to help federal judges deal with the “special challenges” presented by nonprisoner pro se litigants in civil cases. Except as otherwise noted, most of these actions are not required; rather, they are
steps a court may take to help the case progress more expeditiously
while providing equal justice to those who proceed without the bene81. Civil Litigation Management Manual, supra note 31, at 136. See also Cranberg v.
Consumers Union of U.S., Inc., 756 F.2d 382, 392 (5th Cir. 1985) (“When a pro se litigant,even one as skillful as Cranberg, goes to trial against a party represented by a member of thebar, the responsibility of a trial judge may warrant participation which differs markedly fromwhat would be appropriate to a trial between adversaries represented by counsel.”).
82. Court Web: Best Practices, supra note 34.

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Pro Se Case Management for Nonprisoner Civil Litigation

fit of an attorney. Note that many of the practices discussed below arealso applicable to, even recommended for, litigation between represented parties, with the difference being that they may be utilized to agreater degree and with some modifications when a pro se party is
involved.83
With relatively few exceptions, the conduct of a case is largely left
to the sound discretion of the court, and the circumstances of eachindividual case and litigant will determine a judge’s course of action.
Moreover, judges may disagree about the amount and kind of assistance they can—or should—offer a pro se litigant without compromising their duty to be fair to both parties. This material is not intended to promote any particular viewpoint or urge judges to takeany particular actions, but rather to provide options and alternatives
that may be appropriate and useful in a given situation.
This material is also not meant to be a step-by-step procedural
guide for civil pro se cases, which can vary greatly. Cases may be simple or quite complex. The litigants may be as capable as an attorney
or poorly educated, may be erudite or not even speak English. Someare sincere and have a legitimate claim, others are abusive filers with apersonal or political ax to grind. It is simply not possible to design a
one-size-fits-all approach that will be appropriate for every case andevery litigant. There should, however, be something here that is potentially helpful in most situations.

A. Manage the Case Before It Is Filed or Docketed
The earliest case-management techniques can be applied well before acase reaches a judge. As noted supra in Part I.A.2.b, one of the mosthelpful measures a court can take for both pro se litigants and thecourt itself is to provide guidance to the litigant before the pleadings
83. See, e.g., Judge Charles R. Pyle, Getting to Know You—Improving Case Management Efficiency Through Increased Interaction with the Parties at 1 (“Case management
techniques and principles for standard civil cases with represented parties will usually, withminor modifications, be useful in a pro se case.”) (handout from the Ninth Circuit Pro Se
Conference Sept. 18–19, 2014), available at http://www.circ9.dcn/prose_conference/reference_materials/case_mgmt/ProSeConferenceHandout.pdf.

26

II. Suggested Case-Management Practices for Civil Pro Se Litigation

are filed. Doing so may improve the information the litigant provides
to the court, show the litigant that the case does not belong in federal
court to begin with, or allow the litigant to correct mistakes in theinitial filing. Some of these steps are highlighted here.

1. Standardized Forms
In the FJC Survey, the chief district judges and clerks of court frequently mentioned use of standardized forms and instructions as oneof the most effective measures a court can take for handling pro selitigation.84 Providing standardized forms can be a simple, effective
step to help the litigant file a more accurate complaint, which allows
the court to process it more efficiently.
Simple, easy-to-use forms are essential for self-help programs and benefit both litigants and courts. Litigants who use forms prepare legally
sufficient pleadings more often, understand the system better, andcomplete the process faster and more frequently. When forms areavailable and used, courts run more efficiently and effectively, can decide disputes on the merits more often, and can present better data todecision makers. Forms also encourage jurisdictions to establish whatissues are important for a legal problem and the process for resolving
that problem. This allows for potential further improvements.85

A majority of district courts provide one or more forms geared toward pro se litigants, most commonly a generic civil complaintform.86 Many courts also provide standardized forms for particularcauses of action, most often employment discrimination, civil rights,
or social security appeals. For example, in addition to a general civil
complaint form, the District of Connecticut has forms for civil rights,
84. See FJC Survey, supra note 7, at vi, viii, 15–17, 34, 35, & 37.
85. Self-Represented Litigation Network, Best Practices in Court-Based Programs for
the Self-Represented: Concepts, Attributes, Issues for Exploration, Examples, Contacts, andResources at 43 (National Center for State Courts 2008) [hereinafter Best Practices in
Court-Based Programs].
86. The FJC pro se webpage provides links to most districts’ forms at http://fjconline.
fjc.dcn/node/78254. The Administrative Office of the U.S. Courts also provides several
model pro se forms on the U.S. Courts website. See “Pro Se Forms” at http://www.uscourts.
gov/forms/pro-se-forms.

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Pro Se Case Management for Nonprisoner Civil Litigation

employment discrimination, and Social Security claims, which can be
filled out online and printed for filing.87
An added benefit of specialized forms is that they can remind litigants of necessary preliminary steps they should have taken before
filing a complaint in federal court, like seeking a “Notice of Right toSue” letter from the Equal Employment Opportunity Commission(or applicable state agency), or appealing an unfavorable Social Security decision administratively.88
Some districts provide more than just information on how to fill out
the forms. The Northern District of Illinois has an instruction booklet
with forms for mortgage foreclosure cases. It includes information on amortgagee’s legal rights and options when faced with foreclosure, such as
the right to reinstatement or redemption of the loan.89 On its pro secomplaint form for appealing Social Security decisions, the Central District of California provides a “Prayer for Relief” that goes beyond simply
asking that the decision be reversed or reconsidered:Plaintiff respectfully prays that:
A. Defendant be ordered to submit a certified copy of thetranscript of the record, including evidence upon which
the findings and decision complained of are based;
B. Upon such record, this court should modify the decisionof the defendant to grant monthly maximum insurance
benefits to the Plaintiff, retroactive to the date of initialdisability, or in the alternative, remand to the Commissioner for reconsideration of the evidence;
87. See pro se forms page on the district court’s website at http://www.ctd.uscourts.gov/
forms/all-forms/prose_forms.
88. For examples of forms for employment discrimination and Social Security appeals, see
the following: District of Oregon, http://ord.uscourts.gov/index.php?option=com_content&
view=article&id=124&Itemid=329; District of Connecticut, http://www.ctd.uscourts.gov/sites/
default/files/forms/Pro Se_6 Compl Empl Discrim.pdf and http://www.ctd.uscourts.gov/sites/
default/files/forms/Pro Se_4 Soc Sec Cmp.pdf; Southern District of New York, http://nysd.
uscourts.gov/cases/show.php?db=forms&id=63 and http://nysd.uscourts.gov/file/forms/
complaint-social-security.
89. See N.D. Ill. Website, Filing a Civil Case Without an Attorney: Mortgage Foreclosure Answer Forms & Instructions, http://www.ilnd.uscourts.gov/_assets/_documents/_
forms/_ProSe/forms/english/Answer to Foreclosure-English.pdf.

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

C. For such further relief as may be just and proper under thecircumstances of this case.90

In addition to standardized forms for social security appeals, theSouthern District of New York offers an eighty-five-page manual for
pro se litigants, How to Appeal a Social Security/SSI Disability Case in
the United States District Court for the Southern District of New York:A Manual for Claimants. It includes the nineteen-page section“Common Legal Arguments Raised in Social Security Appeals” forboth adult and child disability cases.91
A newer variation on fillable forms is E-Pro Se, “a user-friendly,inter-active Web application, developed by the United States District
Court for the Eastern District of Missouri,” that takes a litigant stepby-step through filling out different kinds of complaints.92
The program gathers necessary information through an on-line
exchange with the litigant and then uses the information provided
by the user to create these civil case initiation documents that may
be filed with the district court. At the end of each program, allforms are printed legibly in a document format organized toprovide the court with essential information about the type ofclaim the filer intends to present for resolution. Self-represented
litigants are able to use E-Pro Se to create case initiation documents
required for Social Security, employment, consumer, and civilrights complaints.93

To date, it appears that only a few other districts have adopted E-Pro Se.94

90. See C.D. Cal. Website, Complaint forms for Pro Se Litigants at 4, http://court.
cacd.uscourts.gov/CACD/Forms.nsf/0b2b50f03ce1d589882567c80058610a/15a7a5773c4b
f0cd882578880075ab54/$FILE/Complaint Forms for Pro Se Litigants.pdf.
91. Available at http://www.nysd.uscourts.gov/file/forms/how-to-appeal-a-social-securityssi-disability-case.
92. See E.D. Mo. Website, “E-Pro Se/Self Help Document Preparation,” http://www.
moep.uscourts.gov/e-pro-se.
93. Id. See also E Pro Se Bolsters Access to Court, The Third Branch (Admin. Office of
the U.S. Courts, Washington, D.C.), Apr. 2010, at 5.
94. D. Minn., http://www.mnd.uscourts.gov/Pro-Se/E-Pro-Se.shtml; D. Vt., http://www.
vtd.uscourts.gov/e-pro-se; W.D. Wash., http://www.wawd.uscourts.gov/pro-se/e-pro-se; D.
Ariz., http://www.azd.uscourts.gov/electronic-pro-se-e-pro-se-program-now-available.

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Pro Se Case Management for Nonprisoner Civil Litigation

Whatever types of forms are offered, they may be most effective if
plaintiffs are required to use them. In the Eastern District of Missouri, “[a]ll actions brought by pro se plaintiffs or petitioners should
be filed on Court-provided forms where applicable. If an action is not
filed on a Court-provided form, the Court, in its discretion, may order the pro se plaintiff or petitioner to file the action on a Courtprovided form.”95 In addition to promoting uniformity, this would
also help courts point out errors or deficiencies in the complaint tomake it easier for a plaintiff to properly amend it.

2. Pro Se Guides or Manuals
The instructional guides or manuals that many district courts supply
to pro se litigants can also serve as a guide for judges. Any information in these guides has essentially been preapproved as information that a court may ethically pass on to pro se litigants. Some ofthese guides go fairly in-depth on a wide variety of subjects, including
filing the initial complaint, responding to motions, discovery, admissibility of evidence, and trial preparation. So if, for example, a guide
explains what disclosures a plaintiff must make to the defendant during discovery,96 a judge could give the same explanation in court.
Judges should consider using the information in their own or other
districts’ guides when faced with the prospect of whether and how to
explain procedural issues to pro se litigants.
In some districts, the available resources are so extensive as toprovide a veritable road map on how to litigate a civil case. The District of Minnesota’s 118-page pro se guide covers everything frominitiating the case to filing an appeal. Among the topic headings are“How Do I Start a Lawsuit?”; “What is a Motion, and How Do I
95. See E.D. Mo. L.R. 45-2.06(A).
96. See, e.g., D. Minn., Pro Se Civil Guidebook 59–63 (2015) [hereinafter Minnesota
Guidebook], http://www.mnd.uscourts.gov/Pro-Se/Pro-Se-Civil-Guidebook.pdf; S.D.N.Y.,
A Manual for Pro Se Litigants Appearing Before the United States District Court for theSouthern District of New York 79–86 (2011) [hereinafter S.D.N.Y. Manual], http://www.nysd.
uscourts.gov/file/forms/pro-se-litigants-manual. See also N.D. Cal. Handbook, supra note 44, at
37 (providing link to an “Initial Disclosures” packet including a fill-in form for pro ses tomake initial disclosures: http://cand.uscourts.gov/civillitpackets).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

Write or Respond to One?”; “What is Discovery?”; “What Happens
at a Court Hearing?”; “What is a Motion for Summary Judgment?”;“What Happens at a Trial?”; and “What Can I Do if I Think theJudge or Jury Made a Mistake?”97 The district’s website also offers
several “Information Sheets that provide basic information about specific procedures,” a question-and-answer page, and more than thirty
forms, most of which reference the pages in the guidebook that coverthat particular form.
The Southern District of New York has similar offerings, including an even larger manual (158 pages)98 and a separate, almost as
lengthy manual (120 pages) specifically for trial.99 Although few other
districts provide manuals as large as those in Minnesota and New
York, most districts do provide some kind of manual for pro se litigants, as well as forms, instructions, and other helpful materials. TheFJC Survey reports that
district courts rely heavily on print and electronic materials to help
and guide pro se litigants. The most common sources of information are the district’s local rules, principal forms, and courthouseor courtroom locations, followed by handbooks developed specifically for pro se litigants. Eighty-four percent of the districts havesuch a handbook for non-prisoner pro se litigants.100

3. Consider Early Screening of Pro Se Complaints
a. By the Court
For prisoner pro se filings, many districts screen the initial complaint
before docketing. It can also be effective in nonprisoner cases to “re97. See Minnesota Guidebook, supra note 96.
98. See S.D.N.Y. Manual, supra note 96.
99. S.D.N.Y., Representing Yourself at Trial: A Manual for Pro Se Litigants Appearing
Before the United States District Court for the Southern District of New York (2011) [hereinafter S.D.N.Y. Trial Manual], http://www.nysd.uscourts.gov/file/forms/representing-yourselfat-trial.
100. FJC Survey, supra note 7, at v. Just under half of the districts offer sample documents for motions or other pleadings or FAQs to assist pro se litigants in navigating court
procedures and preparing submissions. Id. at 8.

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Pro Se Case Management for Nonprisoner Civil Litigation

view the pleadings as soon as they are filed; if pleadings fail to meettechnical requirements, inform the parties and give them an opportunity to cure defects. . . . [C]heck promptly for threshold issues,
such as subject matter jurisdiction, personal jurisdiction, and venue.”101
If it seems that the plaintiff may have a valid claim for relief but
has not filed a proper complaint, it is not inappropriate for the court
to point out obvious defects.102 The Ninth Circuit reasoned thatprovid[ing] the pro se litigant with notice of the deficiencies in his
or her complaint helps ensure that the pro se litigant can use theopportunity to amend effectively. Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous
errors. . . . A statement of deficiencies need not provide great detailor require district courts to act as legal advisors to pro se plaintiffs. . . . [D]istrict courts need draft only a few sentences explaining
the deficiencies.103

See the discussion infra in Part III.A.2.
101. Civil Litigation Management Manual, supra note 31, at 138. See also D. Kan.,“Ten Techniques for Managing Pro Se Cases” (recommending “an intensive initial review ofissues” and using “initial defect orders to address noncompliance with court rules”) (on filewith author) (document available in materials for the Federal Judicial Center’s “Case Management Seminar: Achieving the Promise of Rule 1” June 1–3, 2011); Case Management
Manual for United States Bankruptcy Judges at 749 (Federal Judicial Center, 2d ed. 2012)[hereinafter Bankruptcy Case Management Manual] (“Some judges direct the clerk’s office
to bring filings by pro se parties to their attention so that the documents may be promptly
reviewed and the pro se litigant may be given an opportunity to cure defects if technicalrequirements have not been met. The judges also may check for threshold issues, such as
subject-matter jurisdiction and venue.”).
102. See, e.g., Bloom, Pro Se Issues 2014, supra note 15 (For pro se plaintiffs filing inadequate complaints, issue a sua sponte order “directing them to file an amended complaint
within 30 days, telling them what the problem with the case is as presently stated.”).
103. Noll v. Carson, 809 F.2d 1446, 1448–49 (9th Cir. 1987), superseded on other grounds
by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Although thiswas a prisoner case, it also applies to civil cases. See, e.g., Faggett v. Dept. of Motor Vehicles,
164 F.3d 630, 630 (9th Cir. 1998) (table) (“Faggett’s first amended complaint was founddeficient because it failed to allege what accommodations were necessary and how she wasdiscriminated against due to her disability. The district court granted an opportunity toamend the complaint, and explained how the complaint’s deficiencies could be corrected. See
Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).”).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

In the Eastern District of New York, pro se staff attorneys review
complaints and can “draft orders in cases that are insufficiently pleaded but not appropriate for sua sponte dismissal, generally directing
the litigant to amend the complaint.” The pro se staff will also “provide procedural advice to individuals seeking to file claims or litigating their claims before the court, through such activities as answering
questions about civil procedure and making forms and instructions
available for pleadings and motions.”104 This also allows the “early
identification of those pro se cases that should be quickly terminated;
those that need to be repleaded; and those that need to be transferred
to another district.” By quickly terminating frivolous cases, the court“can expend greater attention on meritorious cases that may be deserving of court-ordered relief.”105
In the District of Montana, nonprisoner pro se cases
are screened for subject-matter jurisdiction, including frivolousness
or maliciousness, and representation issues . . . . The whole case or
one or more parties or claims may be recommended for dismissal
on pre-screening. . . . [I]f the plaintiff is proceeding in forma pauperis, the pleading is also screened for failure to state a claim, including any concession by plaintiff of failure to exhaust available
administrative remedies. . . . If amendment may cure any defects
spotted on pre-screening, the plaintiff is given a time-limited opportunity to amend. Any amended pleading is again subjected topre-screening.106

104. Judge Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and thePro Se Plaintiff, 16 Notre Dame J. of L., Ethics, & Pub. Pol’y 475, 496 (2002).
105. Id. at 497. The Southern District of New York has a similar system, with all papers filed by pro se litigants being submitted to the Pro Se Intake Unit, which “check[s] forcompliance with the Federal Rules of Civil Procedure” and “may assist pro se litigants byexplaining Court procedures and filing requirements.” Litigants may also speak to a staff
member on the phone or in person during normal business hours. See S.D.N.Y. Website,
Pro Se Intake Unit Webpage, http://www.nysd.uscourts.gov/courtrules_prose.php?prose=
office.
106. Ninth Circuit Pro Se Implementation Committee, Interim Report, Appendix D,
at 45 (Feb. 2009), http://www.ce9.uscourts.gov/publications/prose/Pro_Se_Committee_
Interim_Report_09.pdf.

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Pro Se Case Management for Nonprisoner Civil Litigation

Once a litigant has amended the complaint, “[i]f the magistrate judge
finds that any claim requires an Answer, [he or she] issues an orderdirecting service of the pleading and specifying the claims to answer.”107
b. By a Legal Assistance Program
One way for courts to conserve judicial resources and still prescreen
pro se complaints is to have someone else do it prior to filing. Several
districts have partnered with bar groups or law firms to provide legal
assistance to pro se litigants who want to file a claim in federal court.
Generally, such programs offer an initial consultation with an attorney or paralegal in the courthouse but vary in how much further assistance may be provided. One of the earliest programs was developedin the Northern District of Illinois. Like other assistance programs, it
is staffed by volunteer attorneys who will assist a pro se litigant by
providing information about federal law and court procedure as it
applies to his or her case and offer help preparing certain pleadings,
motions, and other court documents; accessing other informational
resources about the litigant’s legal issues; and referring litigants toother legal service providers or social service agencies.108 Lawyers forthe program will not, however, appear in court, research or write
documents, investigate the facts of the case, or negotiate with theother party.
In the Central District of California, the court partnered with anonprofit law firm to provide a broader range of services for litigants.
Volunteer attorneys provide “an initial assessment to determine
107. Id. See also DMAP Website, Processing and Screening New Pro Se Cases, available
at http://jnet.ao.dcn/sites/default/files/pdf/8_Pro_Se_Case_Processing_andScreening_Final_
9302015.pdf (recommending two-level review with initial screening and substantive screening of pro se filings).
108. See N.D. Ill., District Court Pro Se Assistance Program, available at http://www.ilnd.
uscourts.gov/_assets/_documents/_forms/_prose/District Court Pro Se Assistance Program.pdf.
The Northern District of New York looked to the program of the Northern District of Illinois as a model for its own pro se assistance program (http://www.nynd.uscourts.gov/pro-seassistance-program). See DVD: Court to Court: Pro Se Services N.D.N.Y. (Federal Judicial
Center Nov. 2012) [hereinafter Pro Se Services N.D.N.Y.], available at http://fjconline.fjc.
dcn/content/court-court-pro-se-services-ndny-november-2012-1.

34

II. Suggested Case-Management Practices for Civil Pro Se Litigation

whether the case belongs in federal court,” looking in particular atfederal jurisdiction and timeliness, as well as assessing whether thecase is frivolous. If the claim does not pass the initial assessment, theattorneys “explain to the litigant why [they] do not believe the casebelongs in federal court and recommend he or she take the issue tostate court or some other appropriate venue,” or not proceed with theclaim at all if it has no merit.109 The clinic provides assistance withpleadings, service of process, motions, discovery, and conferences.110
Providing legal assistance to litigants before they file as well as after can help the district courts in several ways. As noted above, thelitigants may be advised that they should not file in federal court because their case does not meet jurisdictional or venue requirements.
They can instead be steered toward the appropriate state court orstate or federal administrative agency. Litigants with frivolous claims
might be persuaded not to file at all. If they seem to have a legitimate
claim, litigants can receive help in formulating their complaints, andsometimes other motions, in accordance with the rules of procedure,
lessening the chance that the court will have to deal with an inadequate complaint that may require amending and re-amending while
likely inviting repeated motions to dismiss. “The fact that somebody
who will be before you, without a lawyer but will have the benefit
that guidance and communications and forms and directions provide . . . , is a terrific resource for the judges.”111
109. See Public Counsel Annual Report, supra note 16, at 7 (The clinic advised visitors
not to proceed only in cases with “obvious incurable defects, such as lack of federal jurisdiction or factual impossibility (e.g., suits against mythical beings),” and of the 19% the clinic“advised not to proceed, 81% followed [its] advice.”).
110. Id. at 8–10. The Central District of California also has clinics, operated by a different public interest group, at two other courthouses. See C.D. Cal. Website at http://court.
cacd.uscourts.gov/cacd/ProSe.nsf/.
111. DVD: Court to Court: Pro Se Collaboration Services and Structure (Federal
Judicial Center Sept. 19, 2012) (segment feat. Judge A. Howard Matz (C.D. Cal.),discussing benefits of Federal Pro Se Clinic in the Central District of California), available at
http://fjconline.fjc.dcn/content/court-court-pro-se-collaboration-services-and-structure-september2012-1. See also id. (segment feat. Terry Nafisi, Clerk of Court (C.D. Cal.)) (“The pro seclinic is the clerk’s office’s best friend. They have saved us a ton of time, a ton of grief, andhave really provided a great public service.”); Pro Se Services N.D.N.Y., supra note 108(“Anything that narrows the scope of the litigation, either through the pleadings, through a35

Pro Se Case Management for Nonprisoner Civil Litigation

The clinics also serve to provide litigants with some of the elements of procedural fairness by giving them a chance to tell their story to someone who will listen to them and attempt to explain court
rules and procedures.
Having a walk-in clinic means that these people who are adrift andangry very often, and fearful always, are able to talk with a humanbeing who can provide support, or at least guidance, and treat themwith a sense of dignity and respect, which they often seldom encounter. That makes them more receptive to the principles, therules, the filing requirements, the technicalities, because they’vebeen given a chance to be heard and to be considered.112

While not every district has enough pro se filings to make a legal
assistance program worthwhile, or the resources to make it possible,
those that do should examine the programs above and the several
other districts that have such programs.113 Similar help for courts
might be found using limited-scope or partial representation. See infra Part II.D.

B. Be a Proactive Case Manager from the Start
In recent years there has been a growing emphasis on the potential
benefits of judges taking a more active role in managing civil cases,
especially in the early stages.
Managed cases will settle earlier and more efficiently, and will provide a greater sense of justice to all participants. Even in the absence
conversation with the pro ses at the very outset of the litigation, inevitably leads to an extraordinary savings in time and energy.” (statement of then-Chief Judge Gary L. Sharpe)).
112. DVD: Court to Court: Pro Se Collaboration Services and Structure, supra note
111 (segment feat. Judge A. Howard Matz (C.D. Cal.)). See also Public Counsel Annual Report, supra n.17 at 10–11 (“Many litigants, for example, are angry that their cases have been
decided without oral argument. A common complaint is, ‘I never even got to go in front of ajudge.’ We explain to these litigants that much of federal litigation is done in writing anddoes not resemble oral hearings depicted in television programs like ‘Judge Judy.’ . . . Helping pro se litigants in this way often significantly mitigates the anger that can result from a
pro se litigant’s misunderstanding of legal proceedings.”).
113. See, e.g., FJC Pro Se Webpage, “Pro Se Court Internet Resources by Category—
Clinics,” http://fjconline.fjc.dcn/node/78249 (listing district court programs and clinics).

36II. Suggested Case-Management Practices for Civil Pro Se Litigationof settlement, the result will be a more focused trial, increased jury
comprehension, and a more efficient and efficacious use of ourscarcest institutional resource, judge time.114

It is thought that “early, active case-management results in greater
efficiency, reduced costs, and a shorter time from filing to disposition”115 and helps the courts meet the goal of Federal Rule of Civil
Procedure 1 “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 16(a)(2) specifies that oneof the purposes of pretrial conferences is to establish “early andcontinuing control so that the case will not be protracted because oflack of management.”
The same benefits from, and need for, active case management
are, if anything, greater in pro se litigation. “Nonprisoner pro se cases
will also benefit from your early review. You and the parties may besaved considerable time later if you take a few minutes early in thecase to start it down an orderly path.”116 Or as one magistrate judge

114. Judicial Conference of the United States, The Civil Justice Reform Act of 1990:
Final Report 10 (1997). See also Benchbook for U.S. District Judges 189 (Federal Judicial
Center, 6th ed. 2013) [hereinafter Benchbook] (“Active judicial case management is an essential part of the civil pretrial process. . . . Many parties and lawyers want and welcome
active judicial case management, viewing it as key to controlling unnecessary cost and delay.”); DVD: Amendments to the Federal Rules of Practice and Procedure: Civil Rules
2015—Overview (Federal Judicial Center 2015), available at http://fjconline.fjc.dcn/node/309294/ (on rules amendments effective Dec. 1, 2015) (“Litigation results are more satisfactory when a judge actively manages a case from the beginning and stays involved. The
amendments do not break new ground; they emphasize the importance of early, hands-on,
and continuing case management.”).
115. Civil Litigation Management Manual, supra note 31, at 3. See also Chief JusticeJohn Roberts, 2015 Year-End Report on the Federal Judiciary 10–11 (Dec. 31, 2015) (“Experience has shown . . . that judges who are knowledgeable, actively engaged, and accessible
early in the process are far more effective in resolving cases fairly and efficiently, because they
can identify the critical issues, determine the appropriate breadth of discovery, and curtail
dilatory tactics, gamesmanship, and procedural posturing.”); William W Schwarzer & Alan
Hirsch, The Elements of Case Management: A Pocket Guide for Judges 1 (Federal Judicial
Center, 2d ed. 2006) (“A small amount of a judge’s time devoted to case management early
in a case can save vast amounts of time later on.”).
116. Civil Litigation Management Manual, supra note 31, at 138.

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Pro Se Case Management for Nonprisoner Civil Litigation

put it, “All pro se litigation needs intensive case management.”117 The
following are some techniques judges may find helpful in managing
civil pro se litigation to keep it moving forward.

1. Consider Holding an Early Status Conference andOther Conferences as Needed
In May 2010 the Civil Rules Advisory Committee of the Judicial
Conference of the United States hosted the Conference on Civil Litigation at Duke University Law School. The participants at the conference “agreed that cases are resolved faster, fairer, and with less expense when judges manage them early and actively. An importantpart of this management is an initial case management conference
where judges confer with parties about the needs of the case and an
appropriate schedule for the litigation.”118
As with early screening, a conference in the early stages of litigation can be advantageous in several ways. It provides an opportunity
to let pro se plaintiffs state their case to help you better understandtheir pleadings. As one judge noted, “It never ceases to amaze me, thepower of holding a conference. . . . I find it is the surefire way to getto the heart of the matter.”119 Even with represented parties, “[t]he117. Judge Mary E. Stanley (S.D. W. Va.), Pro Se Litigation Issues: Referral, Screening,
Management and Disposition of Cases Filed by Pro Se Plaintiffs 1 (2002) (on file with author).
118. Memorandum from Judge David G. Campbell, Chair, Advisory Committee on
Federal Rules of Civil Procedure, to Judicial Conference of the United States (June 14,2014) Rules Appendix B-12. See also Judicial Conference Advisory Committee on Civil
Rules and the Committee on Rules of Practice and Procedure, Report to the Chief Justice of
the United States on the 2010 Conference on Civil Litigation 4 [hereinafter Report to theChief Justice] (consensus of many surveys reported on at the conference “was that district ormagistrate judges must be considerably more involved in managing each case from the outset, to tailor the motions practice and shape the discovery to the reasonable needs of thatcase”).
119. Bloom, Pro Se Headaches, supra note 16. See also Sarah Netburn, “Pro Se CaseManagement Practice Tips” 5 (S.D.N.Y. June 3, 2011) (to facilitate discovery, consider“questioning the pro se litigant at the [initial status] conference to elicit what she believes thecase is about and how she will prove her case”) (on file with author) (from materials provided
at the Federal Judicial Center’s “Case Management Seminar: Achieving the Promise of Rule 1,”
June 1–3, 2011).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

pleadings often fail to clearly identify what claims or defenses—or
elements of claims or defense—are genuinely in dispute. The casemanagement conference is an ideal time to probe the parties’ contentions to determine what issues actually need to be resolved.”120
An early Rule 16 conference can “be a useful tool in [nonprisoner] pro se cases[,] . . . particularly for identifying and narrowing issues
and for establishing your control over the case. A conference with thejudge can also send a powerful message to pro se litigants that theircases are receiving the court’s attention.”121 And although a telephone
conference may be more expeditious in some circumstances, “a faceto-face conference in the courtroom may be advisable in a case with anonincarcerated pro se litigant, to address concerns of the pro se litigant, to avoid misunderstandings that can easily arise with such a litigant, and to enable you to emphasize the seriousness of the litigation.”122 Face-to-face discussions also “facilitate the detailed discussions needed to clarify and narrow issues, analyze damage claims, explore settlement possibilities, and address contentious matters; suchdiscussion may be sacrificed or minimized in a telephone conference.”123
One judge recommends starting conferences with pro se plaintiffs
by summarizing what the complaint states, then asking the plaintiff,“[T]ell me in your own words, why did you decide to bring this action and what is it you’re hoping to accomplish?”124 Apart from per120. Benchbook, supra note 114, at 193–94.
121. Civil Litigation Management Manual, supra note 31, at 141. See also National
Bench Guide, supra note 20, at 6-23 (“The judge can save considerable time by demonstrating his or her familiarity with the basic written contentions of the parties. The judge can take[a summary of the pleadings] from the cover sheet prepared by staff, augmented by thejudge’s own notes made during the file review. This summary also demonstrates to the parties the judge’s concern about the case.”).
122. Civil Litigation Management Manual, supra note 31, at 19. See also DVD:
Amendments to the Federal Rules of Practice and Procedure: Civil Rules 2015—Overview,supra note 114 (on rules amendments effective Dec. 1, 2015) (“The rules now recognize thatlive conferences are almost always the most effective way to identify the needs of a case andissue orders tailored to efficient resolution.”).
123. Civil Litigation Management Manual, supra note 31, at 19.
124. Bloom, Pro Se Issues 2013, supra note 31.

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Pro Se Case Management for Nonprisoner Civil Litigation

haps gaining a better understanding of the facts underlying the complaint, the discussion gives the judge the opportunity to make surethat plaintiffs understand what their particular burden of proof willbe.125Federal Rule of Civil Procedure 16(c)(2)(A) specifically allows thejudge to take the initiative in “formulating and simplifying the issues,and eliminating frivolous claims or defenses.” This section “is intended to clarify and confirm the court’s power to identify litigable issues”
while “expressly authorizing the elimination of frivolous claims or
defenses at a pretrial conference.”126 Along with conferences, a carefully drafted case-management plan can specifically identify the valid
claims and defenses and the elements of each claim. The plan can also
be an invaluable aid to a pro se litigant in understanding the timetable for the development of a case and the steps the parties are expected to take.
An early conference also provides the first opportunity to explore
whether the parties may be receptive to discussing a settlement.127 See
the next section for more information on encouraging settlement.
Take this opportunity to ask pro se litigants if they would preferto have an attorney. If so, ask what steps they may have taken to find
one and whether they are aware of available resources such as a refer125. Id. See also Bankruptcy Case Management Manual, supra note 101, at 149–50(Some judges “hold a status conference at the beginning of a case or proceeding to explain
procedural requirements in straightforward terms, point out available reference materials(e.g., [rules of procedure and evidence], local rules, treatises, and court-developed instructions and forms), and generally provide a procedural overview of the case or proceeding.”
Some judges found “a brief discussion on the record regarding the operative law in the circuit facilitates settlement or dismissal of some proceedings” though others “believe that sucha discussion is improper. Similarly, some judges will provide citations to the case law controlling the issues under consideration.”).
126. Fed. R. Crim. P. 16 advisory committee’s note to 1983 amdendments (“There is
no reason to require that this await a formal motion for summary judgment. Nor is there any
reason for the court to wait for the parties to initiate the process.”).
127. See Bloom, Pro Se Issues 2013, supra note 31 (“[C]onferences are the key . . . . I
settle a lot of cases that way.” Getting the parties talking at the first conference can “plant theseed.”); Civil Litigation Management Manual, supra note 31, at 21 (“In cases in whichstrong emotions may be a factor, an opportunity to ‘vent’ to an impartial listener may help
litigants become more open to early settlement.”).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

ral service or legal clinic. Offer suggestions for possible legal help inyour district, if available, including limited-scope representation. See
the section on limited-scope representation infra in Part II.D. Make
sure they understand that there generally is no right to appointed
counsel in civil cases.
If the litigant prefers to proceed pro se, or has no choice, ask if heor she has had any experience in litigation or is otherwise familiar
with court proceedings. This may help determine how much “special
accommodation” to extend to a particular pro se plaintiff. See thediscussion infra in Part III.G regarding varying solicitude extended to
pro ses depending on their knowledge and experience. Ensure that
litigants are aware of any printed or electronic resources for pro se
filers that are available from the court, and encourage them to utilize
any materials your district has to offer, such as standardized forms
and manuals.128 Warn the litigant that it is his or her responsibility to
become familiar with the rules of procedure and evidence and any
local rules of the court, and that those rules apply equally to parties
with or without an attorney.
This is also an opportunity to determine whether you may bedealing with a pro se litigant who could prove to be difficult or has
mental health issues.129 See infra Part III.D.1, “Competency Exam
Under Rule 17(c),” and Part III.F, “Sanctions.”
Consider informing pro se litigants that, even if they are proceeding in forma pauperis, “there are costs associated with a lawsuit.
[They] will have to pay these costs even if the Court waives the filingfee and the U.S. Marshals Service serves [their] summons and complaint[s] for [them]. Those costs may include postage, copying costs,
and deposition and transcript costs.”130 Also warn that, if they lose,
128. See FJC Survey, supra note 7, at 35 (“[H]andbooks, standardized forms, detailed
instructions, and other materials provided by the clerk’s office or through the court’s website” are among “the most effective measures used by the clerk’s office that help non-prisoner
pro se litigants.”).
129. Id. at 25–26 (special issue presented by nonprisoner pro se litigants most mentioned by responding chief judges was “litigants who demand things a court cannot provide;
litigants who are irrational, unreasonable, or mentally unstable”).
130. Minnesota Guidebook, supra note 96, at i.

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Pro Se Case Management for Nonprisoner Civil Litigation

costs and attorneys’ fees could be awarded against them.131 While thecourt can assume attorneys know this, an inexperienced pro se litigant
may not. The District of Minnesota’s extensive “Bill of Costs Guide”
itemizes all costs that may be taxed to the losing party.132
The first conference is also a good time to try to set the tone forthe case, establish ground rules, or simply go over routine mattersthat a nonattorney may not know. The court can, for example,
explain the procedural requirements in straightforward terms; pointout resources [that are] available, such as court-developed forms or
instructions; discuss a schedule for the case; enter a procedural order to ensure that the case moves to prompt resolution and include
dates for cutoff of discovery . . . and, in appropriate cases, for thefiling of a motion for summary judgment and the response (because
the relevant facts usually are in the defendant’s control, early disclosure will facilitate resolution of the action); [and] establish the least
disruptive discovery method adequate to the task (a deposition withwritten questions may be preferable, for example, to a live deposition conducted by an unrepresented party).133

Other items to mention or to remind a pro se party about could
include the prohibition on trying to contact the judge directly, therequirement that all motions be filed with the clerk’s office andserved on the other party, and the importance of meeting deadlines
when filing or responding to a motion and of keeping contact information current.

131. See, e.g., D. Kan. Website, “FAQ: Pro Se”, http://www.ksd.uscourts.gov/faqs/#prose (warning pro se plaintiffs: “[Y]ou should consider the possibility that you may lose. Inthat instance the other side may ask that you be ordered by the court to pay their attorneys’ fees
and costs.”) (last visited June 17, 2016); D. Md., Instructions for Filing a Civil Action on
Your Own Behalf 9 (2014), available at http://www.mdd.uscourts.gov/publications/Forms/
InstructionsFilingCivilAction.pdf (“[T]he winning party may ask the losing party to pay attorneys’ fees or certain costs the winning party incurred during the litigation,” including“deposition transcripts, witness fees, and copy expenses. . . . [T]hese costs can easily add up
to thousands of dollars.”).
132. Available at http://www.mnd.uscourts.gov/FORMS/Clerks_Office/Bill-of-CostsGuide.pdf.
133. Civil Litigation Management Manual, supra note 31, at 141.

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

Unless there is an early dismissal or settlement, it is not likely thatone pretrial conference will suffice in a pro se case. It is almost a certainty that questions will arise and motions will be filed that require
the judge’s attention to resolve. To that end, it may be “helpful tomake clear up front that you stand prepared to re-engage” and holdfurther conferences as needed.
At the initial case-management conference, consider whether toschedule one or more follow-up conferences. These may include interim pretrial conferences to manage discovery and resolve any disputes, schedule deadlines for potential summary judgment motions,or narrow the issues. These may also include a conference at the endof discovery to identify remaining issues, hear oral argument on motions if that would be helpful, and address any problems that presenting proof at trial may raise.134

If it seems like there could be problems with discovery, “some judges
schedule a standing discovery conference at set periods (e.g., once amonth).” Apart from ensuring there will be time to address any problems, “[e]xperience shows that the lawyers often call shortly before
the regularly scheduled conference date to cancel it, as the impending
conference date motivates them to resolve the issues on their own.”135
While this advice from the Benchbook is directed at litigation involving represented parties, it is equally helpful in keeping pro se cases on track and moving forward. In addition to the matters mentioned above, later conferences can be helpful to try to ensure that the
pro se litigant is focusing on the relevant issues and claims and not onmatters or parties that may have been dismissed. Also, “having multiple conferences up front gets the point across to a pro se litigant thatcases take work, that they are not one-shot deals.”136

134. Benchbook, supra note 114, at 197–98.
135. Id. at 198. See also Court Web: Best Practices, supra note 34 (It is “amazing” thatyou can have letters and submissions back and forth but then set a conference and “the night
before the conference . . . they find the box of documents that hasn’t been found before. Or,
because you hold the conference, the parties start talking about settlement, which really isn’t
done on paper.”).
136. See Bloom, Pro Se Headaches, supra note 16.

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For any conference involving a pro se litigant, “record the conference, whether held in person or on the telephone, to avoid misunderstanding and to have a record if disputes arise later; . . . if you decide
the conference should be held off the record, stipulations or rulings
can be dictated to the reporter at the end of the conference.”137 Settlement conferences may be held off the record, but first get the parties’ consent on the record to do so, then after the conference go backon the record to summarize what occurred.138

2. Take Steps to Limit the Number of Motions
Although motions
can narrow issues and thus expedite trial[, or] even make trial unnecessary[, . . .] “make work” motions don’t do anybody any good. These
include summary judgment motions filed too early or involving disputed facts; surreplies and extensions, followed by motions to strikethe other party’s motions for surreplies and extensions; and the classic
example: a Rule 12(b)(6) motion to dismiss for failure to state aclaim, where the asserted defect is readily cured by amendment. . . .
Because motions account for such a large part of a judge’s time, developing a workable system for dealing with them is critical.139

Limiting motions may be even more critical in pro se cases, where
every motion is another opportunity for the pro se litigant to fail tounderstand or properly respond to it.
One step courts can take is to review the initial complaint, pointout any defects, and allow amendment, thereby lessening the chanceof one or more motions to dismiss. See the discussion supra in Part
II.A.3. This can also be done at a pretrial conference, as Rule16(c)(2)(B) authorizes the court to “consider and take action on . . .
amending the pleadings if necessary or desirable.” Because theplaintiff has the right to amend the complaint once, it makes little
137. Civil Litigation Management Manual, supra note 31, at 19–20.
138. See Court Web: Best Practices, supra note 34.
139. Judges Marsha J. Pechman & Julie A. Robinson, Case Management and the Civil
Trial 5–6 (Federal Judicial Center 2010), available at http://fjconline.fjc.dcn/sites/default/
files/2016/1717-V-10%20Case%20Mgt%20Civ%20Trial.pdf.

44II. Suggested Case-Management Practices for Civil Pro Se Litigation

sense to deal with a motion to dismiss the initial complaint. Hold off
andgive the person a chance to amend up front. . . . In a conference,[you] can tell somebody, “these are the problems. . . . I’m going tohold off their motion and give you a chance to amend to correct x,y, and z.” And then when you get the amended complaint in, they
can still move to dismiss but you haven’t wasted everyone’s timewith deciding a motion to dismiss when you’re going to have togive them a chance to amend. . . . It happens all the time in pro secases.140

See also the discussion regarding amending pleadings infra in Part
III.A.2 and III.A.3.
The court may also require the parties to meet and confer to try
to resolve the issue. Some districts include in their local rules a duty
to confer before filing a motion. In the Western District of Washington, prior tofiling any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in personor by telephone, in a good-faith effort to determine whether there
is any opposition to the relief sought and, if there is opposition, tonarrow the areas of disagreement. The duty to confer also applies to
non-incarcerated parties appearing pro se.141

140. Bloom, Pro Se Issues 2014, supra note 15. See also Schwarzer & Hirsch, supra note
115, at 12 (“Pointless motions . . . waste time and money; whenever possible, the judge
should discourage them. . . . At the Rule 16 conference, the judge can ask the parties to specify any grounds they might have for [a Rule 12(b)(6)] motion and can determine in advancewhether a defect is curable. Curable defects should generally be brought to the opponent’s
attention before a motion is filed.”).
141. W.D. Wash. Civ. R. 7(m). See also D. Minn. LR 7.1(a) (“Before filing a motion
other than a motion for a temporary restraining order or a motion under Fed. R. Civ. P. 56,
the moving party must, if possible, meet and confer with the opposing party in a good-faitheffort to resolve the issues raised by the motion.”); D. Colo. Civ. R. 7.1(a) (“Before filing a
motion, counsel for the moving party or an unrepresented party shall confer or make reasonable good faith efforts to confer with any opposing counsel or unrepresented party to resolve
any disputed matter.” The duty to confer does not apply to motions under Federal Rules ofCivil Procedure 12 or 56, however.).

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Note that not all duty-to-confer rules are applied when a pro se party
is involved.142
A variation on this idea is to hold a premotion conference to try
to resolve or limit the matter at hand.
Consider establishing a process for the submission of premotion
letters or for premotion conferences before a party can file a motion
to dismiss or for summary judgment. Some judges have found thata premotion letter or conference requirement avoids or limits motions to dismiss or for summary judgment without the need for fullbriefing, or clarifies and focuses the issues for those motions that doproceed to full briefing.143

With a pro se litigant especially, “having conferences moves the casemore efficiently and gives the litigant the chance to be before thecourt which, . . . for due process and access to the court, is just much
more satisfying than them or us constantly dealing with those repeat
submissions.”144
The idea of a premotion conference has been incorporated into a2015 amendment to Rule 16(b)(3)(B)(v), which states that a court
may “direct that before moving for an order relating to discovery, themovant must request a conference with the court.”145 Part of the rationale for the addition is that “[m]any federal judges require suchpre-motion conferences, and experience has shown them to be very
effective in resolving discovery disputes quickly and inexpensively.

142. See, e.g., Local Civ. Rule 7.02 (D.S.C.) (“Duty to Consult before Filing any Motion. . . . Counsel is under no duty to consult with a pro se litigant.”).
143. Benchbook, supra note 114, at 194 n.1.
144. Court Web: Best Practices, supra note 34.
145. Fed. R. Civ. P. 16(b)(3)(B)(v) & advisory committee’s notes to 2015 amendments. “Many judges who hold such conferences find them an efficient way to resolve most
discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case.”
Id. See also Roberts, supra note 115, at 7 (“Such conferences can often obviate the need for a
formal motion—a well-timed scowl from a trial judge can go a long way in moving things
along crisply.”).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

The amendment seeks to encourage this practice by including it in
the Rule 16 topics.”146
Again, these methods are recommended in all cases, not just those
involving pro se litigants. They may be especially advisable, however,for pro se cases, given the problems pro ses often have in properly responding to motions. Simpler, less formal procedures can help keep
the case on track and avoid needless back and forth motions.147

C. Encourage Settlement
As noted earlier, encouraging the parties to consider holding settlement discussions can begin as early as the initial status conference.
The question can then be raised at any succeeding conferences.148
Rule 16 itself encourages judges to promote the idea, stating that oneof the purposes of a pretrial conference is to facilitate settlement.149“At any pretrial conference, the court may consider and take appropriate action on . . . settling the case and using special procedures toassist in resolving the dispute when authorized by statute or local
rule.”150
Although “[m]any cases involving a pro se litigant are appropriate
for resolution by settlement,” some courts have exempted pro ses
from their formal alternative dispute resolution (ADR) programs outof a concern that “anyone who assists the parties in such cases withsettlement negotiations runs the risk of being pressed by the pro se
146. Campbell, supra note 118. See also Report to the Chief Justice, supra note 118, at
10 (judges offering “prompt assistance in resolving disputes without exchanges of motions
and responses” are better able to “keep a case on track, keep the discovery demands within
the proportionality limits, and avoid overly narrow responses to proper discovery demands”).
147. See Best Practices in Court-Based Programs, supra note 85, at 54 (“Try to reduce
the number of steps, . . . documents, and . . . procedural requirements” litigants must complete, “while not undercutting the justice and due process requirements. . . . Aim to makeeach of the remaining steps, documents, and procedures as simple and clear as possible.”).
148. Fed. R. Crim. P. 16 advisory committee’s notes to 1983 amendments (“A settlement conference is appropriate at any time.”). See also Bloom, Pro Se Issues 2014, supra note
15 (“I talk settlement at every single conference. And I try to plant the seed that there’s morethan one way to resolve a dispute. Most cases do not get tried.”).
149. Fed. R. Civ. P. 16(a)(5).
150. Fed. R. Civ. P. 16(c)(2)(I).

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party to give legal advice. . . . [Judges] should be cautious about assisting with settlement, since [their] assistance will very likely be misunderstood by the pro se litigant.”151
On the other hand, there is a recognition that it may be “unfair
to the pro se litigant for courts not to provide settlement assistance”152
that is available to represented parties, and some district courts now
offer ADR to pro se litigants. “This type of case has traditionally been
exempt from court ADR programs because the needs of pro se litigants can put ADR neutrals at risk of appearing biased in the pro se’sfavor. [However], a number of districts are experimenting with programs to serve these litigants.”153 The FJC Survey reports that 56% of
the responding chief judges have referred nonprisoner pro se cases tomediation for settlement discussions.154
In the Western District of Texas, for example, the step-by-stepguide for nonprisoner pro se plaintiffs states that under Local RuleCV-88(a), “the court recognizes the following Alternative Dispute
Resolution methods: early neutral evaluation, mediation, mini-trial,
moderated settlement conference, summary jury trial, and arbitration.
The court may also approve other alternative dispute resolution
methods the parties suggest or the court believes [are] suited to thelitigation.”155
151. Civil Litigation Management Manual, supra note 31, at 143. In order to encourage settlement while preserving the court’s impartiality, it has been suggested that judges
consider “referring cases with pro se litigants to another district judge or magistrate judge forsettlement assistance; and, establishing a regular exchange relationship with another . . .
judge to provide settlement assistance in pro se cases.” Id. at 96–97. This is especially recommended if the parties have agreed to a bench trial, but may not be necessary when a jury
will be deciding the case.
152. Id. at 143.
153. Donna Stienstra, ADR in the Federal District Courts: An Initial Report 3 (Federal
Judicial Center 2011). When the survey was taken, eighteen districts offered some type of
ADR program to nonprisoner pro se litigants. See table 2, at 3. See also Bankruptcy CaseManagement Manual, supra note 101, at 750 (“Courts may wish to refer pro se litigants tomediation. Some judges believe that such a referral not only enhances the possibility of settlement but puts the pro se party on a more equal playing field with represented parties.”).
154. FJC Survey, supra note 7, at 31 & table 23.
155. See W.D. Tex., A Step-By-Step Guide to Filing a Civil Lawsuit in the UnitedStates District Court for the Western District of Texas 22 (rev. ed. Apr. 21, 2009), available48

II. Suggested Case-Management Practices for Civil Pro Se Litigation

The Northern District of California has an extensive ADR program that, like the Western District of Texas, offers a variety ofmethods. For pro se litigants, it specifically recommends a settlement
conference conducted by a magistrate judge,
where [their] questions and concerns can be addressed directly by ajudge who has experience working with unrepresented parties. . . .
If [they] select mediation, ENE or non-binding arbitration[,] and[the court is] unable to find a suitable neutral, [their] case likely
will be redirected to a settlement conference with a magistrate
judge.156

Mediation may also allow the opportunity to provide the pro selitigant with an attorney for the limited purpose of assisting with settlement. The Western District of Pennsylvania has developed a program with a law firm “to make attorneys available to counsel pro selitigants using the ADR process.”157 The Southern District of New
York’s mediation program for employment discrimination cases, begun in 1999, uses “pro bono attorneys [who] volunteer to represent
pro se plaintiffs solely for the purposes of mediation.”158 Even just an
initial evaluation of the claim by an attorney who ultimately does nottake the case could be valuable in giving the litigant an objective ideaof how strong or weak the claim is and helping him or her avoid an
unfair settlement offer or be more willing to compromise and takeless. See also infra II.D on limited-scope representation.

at http://www.txwd.uscourts.gov/FWOA/SitePages/FilingWOAttny.aspx. See also N.D.
Tex., Civil Justice Expense and Delay Reduction Plan 4–5 (2002), available at
http://www.txnd. uscourts.gov/sites/default/files/orders/misc/MiscOrder46Civil.pdf (mediation, early neutral evaluation, mini-trials, and summary jury trials are available to civil litigants, including those filing pro se).
156. N.D. Cal., ADR Handbook: Dispute Resolution Procedures in the Northern District of California at 10 (2016), available at http://www.cand.uscourts.gov/adrhandbook.
157. See W.D. Pa. Website, “FAQs: ADR > Are there lawyers available to assist pro selitigants?” (March 2014), http://www.pawd.uscourts.gov/court-info/faq/ADR. See also
N.D.N.Y. Website, “Assisted Mediation Program,” http://www.nynd.uscourts.gov/assistedmediation-program (using volunteer lawyers from the Federal Court Bar Association).
158. See S.D.N.Y. Website, “Mediation in Pro Se Employment Discrimination Cases,”
http://www.nysd.uscourts.gov/pro_bono_mediation.php.

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The settlement assistance program in the Northern District of Illinois was praised by an ABA section for giving pro se litigants
the substantial benefit of expert assistance of trained volunteer attorneys to help them evaluate their cases, the proposed settlement
and the prospects for future litigation . . . . The judge, when determining whether a settlement should be accepted, can be confident that the pro se litigant has had the benefit of counsel in thesettlement process.159

Benefits flow to opposing counsel as well.
As many of the cases in the Settlement Assistance Program involve
employment litigation where emotions can run high, opposing
counsel has the advantage of working with a trained attorney who,
while advocating his client’s position, has a better view of the evidentiary, practical, and legal issues in the case than most pro se litigants. Clearly, this enhances the possibility of a settlement that will
make sense to the opposing counsel’s client.160

If a settlement is reached and the pro se did not have the benefitof an attorney’s advice, the court should consider reviewing the termswith the parties on the record to determine whether the pro se litigant
understands the agreement, especially if he or she waives any substantive rights.
Judges should review the terms of settlement agreements, eventhose resulting from ADR, with the parties. Judges should determine whether the agreement was entered into voluntarily. If there
are specific provisions through which a self-represented litigant
waives substantive rights, judges should determine, to the extent
159. See ABA Section of Labor and Employment Law, Settlement Assistance Program in
Northern District of Illinois, Flash, Mar. 2011, available at http://www.americanbar.org/
groups/labor_law/publications/flash_archive.html.
160. Id. “The statistics regarding the program reveal that it is an undisputed success.
The majority of cases . . . are resolved early in the litigation process, and a large number ofattorneys have volunteered to be on call for limited appointments.” Id. See also N.D. Ill.
Press Release, Nov. 6, 2006, available at http://www.ilnd.uscourts.gov/_assets/_news/
PRESS/sap2006.html (for information on the program); FJC Pro Se Webpage, supra note 8,at http://fjconline.fjc.dcn/node/78250 (for information on other pro se mediation programsin district courts).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

possible, whether the waiver is knowing and voluntary. . . . Selfrepresented parties should be informed that once the agreement isapproved it becomes an order of the court; therefore, they shouldraise any questions that they have about the agreement before it isapproved.161

If the litigant has difficulty understanding English, consider having
the agreement translated verbatim into the litigant’s primary language
by a qualified court interpreter before reviewing it with the litigant.162

D. Explore the Possibility of Limited-Scope Representation
Indigent criminal defendants have a Sixth Amendment right to courtappointed counsel, but for civil litigants a court can only “request an
attorney to represent any person unable to afford counsel.”163 Because
most pro se litigants have serious difficulties with one or more aspectsof pursuing a claim in federal court,164 the ideal situation would be to161. Massachusetts Guidelines, supra note 39, at 12.
162. Id. at 13. “The judge may wish to make an affirmative finding that the agreement
was reviewed by the court and translated into the self-represented litigant’s primary language
by a qualified court interpreter. If a qualified court interpreter cannot be obtained, the matter should be continued until one can be present.” Id.
163. 28 U.S.C. § 1915(e)(1) (emphasis added). In a civil case, the court technically “isnot authorized to appoint counsel, but may pursuant to 28 U.S.C. § 1915, ‘request’ an attorney to represent a party who is proceeding in forma pauperis.” Ferguson v. Fleck, 489 F.
Supp. 219, 221 (W.D. Mo. 1979) (emphasis added). Cf. Mallard v. U.S. District Court for
the Southern District of Iowa, 490 U.S. 296, 303 (1989) (reversing lower court decision that
§ 1915(e) “empowers federal courts to make compulsory appointments in civil actions,”
reasoning that “[t]o the extent that the ‘assignment’ or ‘appointment’ of counsel denotes theimposition of a duty to undertake representation that courts may enforce, Congress’ decision
to allow the federal courts to do no more than ‘request’ attorneys to serve . . . seems to evince
a desire to permit attorneys to decline representation of indigent litigants if in their view
their personal, professional, or ethical concerns bid them do so”). It is common practice,
however, to use the term “appointment of counsel” or similar language when an attorney isrequested under § 1915(e), as discussed elsewhere in this section.
164. See, e.g., Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (“Plaintiffs who
file perfectly adequate complaints and respond well to motions to dismiss might be entirely
unable to handle discovery or respond to motions for summary judgment. Even pro se plaintiffs with sufficient skills to survive summary judgment are unlikely to be able to try a case.”).
See also FJC Survey, supra note 7, at 21–23 & table 8 (listing the most common types ofproblems found in most or all pro se cases).

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have enough volunteer attorneys to represent all indigent litigants
who need legal assistance. Demand, however, generally exceeds the
supply of available attorneys. To reduce this gap, some courts havedeveloped programs that use a panel of law firms and attorneys willing to accept certain pro bono appointments.165 A small number ofcourts have instituted pro bono requirements on all practicing trial
attorneys in the district.166
However, even with such programs, there are not enough attorneys to provide full representation to those who need it. As a result,many districts have stepped up their efforts to provide pro se litigants
with at least some help from an attorney, like the legal assistance centers discussed supra in Part II.A.3.b. Another method many courts areturning to is the appointment of counsel for a limited purpose. “Evenif attorneys are unwilling to take full responsibility for litigating acase, they may be willing to advise the plaintiff, or they may be willing to be appointed for a specific limited role, such as to assist the pro
se litigant during trial.”167
As with other pro se assistance programs, limited-scope representation can provide significant benefits to both the litigant and thecourt.
165. See, e.g., N.D. Tex. Website, “Pro Bono Civil Panel Information,” http://www.
txnd.uscourts.gov/pro-bono-civil-panel-information; E.D.N.Y., Rules Governing Proceduresfor Appointment of Attorneys in Pro Se Civil Actions, available at https://img.nyed.
uscourts.gov/files/local_rules/probonoplan.pdf. See also FJC Pro Se Webpage, supra note 8,at http://fjconline.fjc.dcn/content/pro-se-court-internet-resources-category-pro-bono-programs
panel-lists; DMAP Website, supra note 9 (follow “Pro Bono Programs” hyperlink under “Pro
Se Case Processing Tools: E-Filing and E-Service Frequently Asked Questions” section)(providing information on and links to various pro bono programs of certain district courts).
166. See, e.g., E.D & W.D. Ark. L.R. 83.7; N.D. Ill. L.R. 83.11(g).
167. Civil Litigation Management Manual, supra note 31, at 140. For an extensive discussion of the issues around partial representation, including a list of state rules, see the
ABA’s Standing Committee on the Delivery of Legal Services, An Analysis of Rules That Enable Lawyers to Serve Pro Se Litigants (Nov. 2009). The ABA’s Standing Committee on Pro
Bono & Public Service has a list of court-based pro bono programs, including federal, state,and bankruptcy courts, at http://apps.americanbar.org/legalservices/probono/judicial/court
probonoprograms.html. Because the limited nature of the appointment makes more attorneys willing to accept pro bono appointments, courts should respect any agreed-upon limitations to the scope of representation and not attempt to require attorneys to continue further
in any given case.

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

The core concept of limited scope representation, also known as
unbundled services or discrete services, is that attorneys provide assistance within the attorney-client relationship but with that assistance limited only to certain specified tasks or to certain portions of
the case. The specific allocation of responsibility, decided jointly by
the attorney and the client, focuses legal assistance on those aspectsof the matter in which it provides the greatest benefit. It reduces
the cost to the client, and facilitates the court’s work by reducing
continuances and confusion caused by litigants’ unfamiliarity withthe court process, while providing additional business to the attorney.168

The FJC Pro Se Survey found that “[a] little over half (56%) [of the
district courts] appoint counsel to represent pro se litigants for limited circumstances, such as mediation or trial.”169 In the Northern
District of Texas,[t]he types of cases assigned include claims of employment discrimination, prisoner and nonprisoner civil rights violations, breach ofcontract, and other diversity and federal question jurisdiction cases.
At times, a judge will appoint counsel for short-term help. For example, an appointment may be made to help a pro se plaintiff evaluate a case before mediation and discovery, to assist during mediation, or to respond to a motion for summary judgment or a motion
for default judgment.170

In the Northern District of New York,an attorney may be appointed for the limited purpose of preparing
a confidential report analyzing the merits of the claim(s) raised by
the plaintiff. If a case proceeds to trial, an attorney may be appointed as trial counsel to conduct the trial of an action, as support
counsel to assist another attorney, or merely as standby trial counsel
to assist the pro se party in conducting the trial. In some cases, anattorney may be appointed as the pro se party’s attorney for bothpre-trial matters as well as the actual trial of the lawsuit. The capac168. Best Practices in Court-Based Programs, supra note 85, at 64.
169. FJC Survey, supra note 7, at 4.
170. See N.D. Tex. Website, “Pro Bono FAQs: What types of cases are assigned?,”http://www.txnd.uscourts.gov/faq/pro-bono-faq (last visited June 17, 2016).

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ity in which an attorney is appointed for a party is entirely within
the discretion of the Court.171

The goal of such programs is to provide “civil pro se litigants infederal court the opportunity to have a meaningful consultation withvolunteer counsel and to improve access to justice in our Federal
Courts.” Then, “[e]ven if the pro se individual declines representation
or refuses to follow a volunteer lawyer’s advice, by having access tocounsel, the pro se litigant is more likely to perceive the justice system
to be fairer, thereby reducing the number of appeals.”172
If a pro se litigant accepts partial representation, make sure thathe or she understands that it is for a limited purpose and that, absent
a separate agreement, the attorney will not work on other aspects ofthe case.173 Courts should consider a formal order of appointmentthat outlines the scope and duration of the representation so that thelitigant is fully informed and the attorney’s limited role is clearly defined. Some districts provide a form notice or order that becomes part

171. See N.D.N.Y., Pro Se Handbook 5 (2015), available at http://www.nynd.
uscourts.gov/sites/nynd/files/ProSe_Handbook.pdf. See also D. Idaho, Pro Bono Plans, available at http://www.circ9.dcn/publications/prose/Pro_Bono_Plan_Combined.pdf (“Any appointment for representation shall be limited solely to those matters at issue before the Court
and may be limited to an issue or issues designated by the presiding judge.” § I.2(d), p. 22)(attachment to the Ninth Circuit Pro Se Litigation Committee, “Interim Report of the Pro
Se Litigation Committee” at Tab 7 (Oct. 17, 2014), available at http://www.ce9.
uscourts.gov/publications/prose/Pro_Se_Committee_Interim_Report_14.pdf); D. Or. Website, “Applying for Pro Bono Representation,” https://www.ord.uscourts.gov/index.php/
2015-02-10-16-10-22/applying-for-pro-bono (“Common uses for this type of appointment
include: drafting an amended complaint; preparing for and/or appearing at a mediation,
settlement conference, or deposition; and responding to a motion to dismiss or a motion forsummary judgment.”).
172. D. Minn. & Fed. Bar Ass’n, “Pro Se Project” 2 (2011), available at
http://www.fedbar.org/proseproject2011.pdf.
173. See Model Rules of Prof’l Conduct r. 1.2(c) (Am. Bar Ass’n 1983) “A lawyer may
limit the scope of the representation if the limitation is reasonable under the circumstances
and the client gives informed consent.”). See also Bankruptcy Case Management Manual,supra note 101, at 755 (“A critical issue in any limited-scope representation is whether theclient has notice and an understanding of what the limited scope of representation is. In
addition, court forms and procedures need to ensure that the court and other parties understand whether a party is represented or not in connection with a particular matter.”).

54

II. Suggested Case-Management Practices for Civil Pro Se Litigationof the record.174 The Western District of Arkansas has used an orderthat clearly spells out that an attorney will be appointed for certain
limited purposes:
a. to discuss this case with Plaintiff;b. to review pleadings and other documents;c. to evaluate the case and advise Plaintiff of the merits of
Plaintiff’s claims and of the advisability of settlement if
appropriate; and,d. attend such Initial Case Conferences as may be convenedby the Court.
Unless otherwise ordered by the Court, this appointment
will terminate without the necessity of further order of the
Court, upon the adjournment of such Initial Case Conference
or at such other time as the Court may order.
It is specifically found and ordered that counsel appointed
under this order shall have no obligation or duty to prepare or
file pleadings or other documents on behalf of the plaintiff.175

Whether an attorney is appointed for full or partial representation, judges are cautioned “to appoint counsel only when a case warrants it. A high percentage of pro se cases do not have the merit to be
worthy of a volunteer lawyer, and you should not call on attorneys torepresent such cases” and potentially waste their time.176
Along similar lines, try to avoid assigning a pro bono attorney toa difficult litigant who “may plague them forever.” It could discourage that attorney from future pro bono work and drive away others.
Instead, deny the request for an attorney without prejudice and see
how far the case advances.177 At most, consider a limited appointment
174. See, e.g., S.D.N.Y., Notice of Limited Appearance of Pro Bono Counsel form,
available at http://www.nysd.uscourts.gov/file/forms/limited-notice-of-appearance-of-pro-bo
no-counsel.
175. See W.D. Ark., Order Appointing Limited Purpose Attorney (on file with author).
See also W.D. Ark., Manual for Pro Se Litigants at 8 (2012) (discussing district’s limitedscope pro bono program for pro se litigants).
176. Civil Litigation Management Manual, supra note 31, at 140.
177. Judge Lois Bloom, Pro Se Issues, Phase II Orientation Seminar for Newly
Appointed U.S. Magistrate Judges (Federal Judicial Center Oct. 2008). See also National

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if an attorney is willing to provide an initial consultation with thelitigant to evaluate whether the claim has any legitimacy.
If a claim does appear to have merit, and involves a statute thatallows for an award of attorneys’ fees to the prevailing party, this may
increase the possibility of finding pro bono representation.178 A successful pro se litigant who receives the assistance of counsel, whether
in the form of partial or full representation, can request an award of
attorneys’ fees.179
Judges should be aware that an ostensibly pro se litigant might secure limited-scope representation, generally in the form of advice andhelp with written materials, without revealing it to the court or the
opposing party. This practice of “ghostwriting,” while accepted by
the American Bar Association180 and, to varying degrees, by manystates, has been disfavored by federal courts. The concern is that the
pro se litigant would have professionally written pleadings while unfairly receiving the benefit of more lenient treatment as a pro se. The
Conference for Pro Se Law Clerks, District Methods Analysis Program Working Group on
the Pro Se Litigation (Federal Judicial Center Sept. 10, 2015) [hereinafter National Conference for Pro Se Law Clerks], available at http://fjconline.fjc.dcn/content/301975/nationalworkshop-pro-se-law-clerks (audio only) (If you have a pro bono program, “use it wisely. . . .
If you assign an attorney to a case with a very difficult client, they’re going to feel used andburned and they are not going to remain as a volunteer in your program.”) (comment by
Richard L. Robinson, Pro Se Law Clerk (E.D. La.)).
178. National Conference for Pro Se Law Clerks, supra note 177 (“In addition to the
Karmic rewards in the afterlife, . . . because a lot of federal statutes provide for an award of
attorney’s fees, . . . [more attorneys] may be willing to take appointments in cases that . . .
the court has already pre-screened as being potentially meritorious.”).
179. See Alan Hirsch, Diane Sheehey & Tom Willging, Awarding Attorneys’ Fees andManaging Fee Litigation 16 & n.90 (Federal Judicial Center, 3d ed. 2015) (“Awarding attorneys’ fees to pro se litigants who sought advice from outside counsel may be appropriate,”
citing Blazy v. Tenet, 194 F.3d 90, 92 (D.C. Cir. 1999) (upholding denial of attorneys’ fees
for lack of adequate documentation, but affirming that “pro se status does not by itself preclude the recovery of fees for consultations with outside counsel”)). See also Bandera v. Cityof Quincy, 220 F. Supp. 2d 26, 48–52 (D. Mass. 2002) (awarding attorneys’ fees to successful pro se plaintiff); Jefferson v. City of Fremont, No. C-12-0926 EMC, slip op. at 8 (N.D.
Cal. Apr. 30, 2012) (pro se plaintiff may ask “for attorney’s fees if he gets advice from anattorney, even if the attorney does not make a formal appearance,” citing Blazy).
180. See ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 07-446 (2007)(“Undisclosed Legal Assistance to Pro Se Litigants”).

56II. Suggested Case-Management Practices for Civil Pro Se Litigation

ABA committee, however, reasoned that “if the undisclosed lawyer
has provided effective assistance, the fact that a lawyer was involved
will be evident to the tribunal. If the assistance has been ineffective,
the pro se litigant will not have secured an unfair advantage.”181
By contrast, federal courts view ghostwriting as a deceitful practice and an attempt by the attorney to avoid his or her responsibilities
under Federal Rule of Civil Procedure 11.
The pro se plaintiff enjoys the benefit of the legal counsel while also being subjected to the less stringent standard reserved for those proceeding without the benefit of counsel. This situation places the opposing
party at an unfair disadvantage, interferes with the efficient administration of justice, and constitutes a misrepresentation to the Court.182

The federal courts’ responses to ghostwriting have included “(1) ceasing to give pro se litigants any leniency, (2) ordering ghostwriting
attorneys to appear before the court, (3) striking ghostwritten documents, and (4) warning litigants and attorneys of sanctions should theghostwriting continue.”183 A judge who suspects that a pro se pleading has in fact been drafted by an attorney should consider making an
inquiry and reexamining whether to extend the usual lenient treatment for pro se pleadings. See also the discussion supra in Part II.C
181. Id. at 3.
182. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075,
1078 (E.D. Va. 1997). See also Duran v. Caris, 238 F.3d 1268, 1273 (10th Cir. 2001) (inappellate court, “any ghostwriting of an otherwise pro se brief must be acknowledged by thesignature of the attorney involved . . . and future violations of this admonition will result in
the possible imposition of sanctions”); Ricotta v. State of California, 4 F. Supp. 2d 961, 987(S.D. Cal. 1998) (“[A] licensed attorney does not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, andothers with whom he or she may want to share specialized knowledge. . . . Attorneys crossthe line, however, when they gather and anonymously present legal arguments, with theactual or constructive knowledge that the work will be presented in some similar form in a
motion before the Court.”). But cf. In re Fengling Liu, 664 F.3d 367, 372–73 (2d Cir. 2011)(where attorney acted in good faith to help petitioners rather than gain an unfair advantage
or mislead the court or opposing parties and the petitions were “fairly simple and unlikely tohave caused any confusion or prejudice . . . , we conclude that Liu’s ghostwriting did notconstitute misconduct and therefore does not warrant the imposition of discipline”).
183. Jessie M. Brown, Ghostwriting and the Erie Doctrine: Why Federalism Calls for Respecting States’ Ethical Treatment of Ghostwriting, J. of Prof’l Lawyer 217, 225–26 (2013).

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about providing a pro se litigant with an attorney for the limited purpose of assisting with settlement.

E. Discovery
Problems with discovery can arise in any litigation, pro se or not.
When a pro se party is involved, the keys to success seem to be takethe initiative, inform, simplify, and monitor.
At the first status conference, consider issuing an order to get theinitial exchange of basic information started. As one judge noted, byusing a form order, a judge can “lay it all out for [the litigants], givethem the deadlines, and tell them they’re going to bear their own
costs, that discovery is pay as you go, even if they’re proceeding IFP. I
put that all in writing right up front.”184 For example, a general discovery order might state:
Discovery is the process by which the parties request information from each other regarding their claims or defenses. Discovery requests are not made to the Court. Discovery is governed by
Rules 26 through 37 of the Federal Rules of Civil Procedure and isconducted between the parties without the Court’s involvement.
Pursuant to Fed. R. Civ. P. 33 and 34, plaintiff may request, inwriting, answers to questions and documents from defendants’ attorney. The more specific the request, the more likely the information will be produced. . . .
The parties may conduct depositions upon oral examination
pursuant to Fed. R. Civ. P. 30. An oral deposition is a seven (7)hour question-and-answer session in which the person being deposed testifies under oath or affirmation. The deposition in its entirety, both the questions and answers, are transcribed by the court
reporter and may be used in the litigation. . . . Each party bears
their own costs of conducting discovery.185

184. Bloom, Pro Se Headaches, supra note 16.
185. Judge Lois Bloom, Practical Tips for Navigating Pro Se Cases 54–55 (E.D.N.Y.
Oct. 2012) [hereinafter Bloom, Practical Tips], available at http://fjconline.fjc.dcn/sites/
default/files/2014/MagJ21303.pdf.

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II. Suggested Case-Management Practices for Civil Pro Se Litigation

As part of the initial order, “include dates for cutoff of discovery, forsubmission by the defendant of all relevant records and documents. . . (because the relevant facts usually are in the defendant’s control,
early disclosure will facilitate resolution of the action)[, and] establish
the least disruptive discovery method adequate to the task,” such asallowing a deposition with written questions instead of having a live
deposition conducted by a pro se.186
For specific types of suits that occur frequently in your court,“consider whether you want to use a standing set of discovery demands to which the defendant must respond.”187 For example, in an
employment discrimination case, order the defendant to produce,
among other things, the plaintiff’s complete personnel file, including
the claimed reason(s) for “the adverse action(s) taken against plaintiff
that is/are the subject of plaintiff’s complaint,” plus “any supporting
documents, reports, memos, evaluations.”188 This will help to reduce
the opportunities for the pro se plaintiff to make inadequate or inappropriate discovery requests and for potential discovery disputes between the parties.
In a similar vein, “if there are specific items for discovery that areraised at the conference, you may want to issue an order that sets a
deadline for that disclosure. This may help focus the discovery pro186. Civil Litigation Management Manual, supra note 31, at 141.
187. Netburn, supra note 119, at 5.
188. Bloom, Practical Tips, supra note 185, at 56–57. Courts may also want to look at
the Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action 4–5 (Federal Judicial Center Nov. 2011), available at http://fjconline.fjc.dcn/
content/pilot-project-regarding-initial-discovery-protocols-employment-cases-alleging-adverseacti-0. The protocols are designed “to encourage parties and their counsel to exchange themost relevant information and documents early in the case, to assist in framing the issues tobe resolved and to plan for more efficient and targeted discovery.” An initial report on thepilot program indicated that, although cases using the discovery protocols were not resolved
more quickly compared to a random sample of other employment discrimination cases, they
had fewer discovery motions and motions to dismiss or for summary judgment and appear
more likely to settle than the comparison cases. See Emery G. Lee III & Jason A. Cantone,
Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action 1 (Federal Judicial Center Oct. 2015), available at
http://fjconline.fjc.dcn/content/309827/report-pilot-project-regarding-initial-discovery-protocolsemployment-cases-alleging.

59Pro Se Case Management for Nonprisoner Civil Litigation

cess.”189 If the original pleadings have been amended to eliminate
some claims, and the initial status conference was used to help narrow
the relevant issues, that, too, can narrow the focus and avoid unnecessary effort, delay, and expense.
Consider using Rule 16(c)(2)(C) for “obtaining admissions andstipulations about facts and documents to avoid unnecessary proof,
and ruling in advance on the admissibility of evidence.” Be sure to
warn the pro se litigant that any requests for admission must be answered or they will be taken as admitted under Rule 36(a)(3):A matter is admitted unless, within 30 days after being served, theparty to whom the request is directed serves on the requesting party
a written answer or objection addressed to the matter and signed by
the party or its attorney. A shorter or longer time for responding
may be stipulated to under Rule 29 or be ordered by the court.

If your district’s materials for pro ses do not include a comprehensive guide to discovery procedures and issues, consider referring
them to another district’s guide. The District of Minnesota’s guide,
for example, has an extensive section on discovery in a question-andanswer format.190 The Northern District of California also has an excellent, concise section on discovery that clearly explains most aspects
of discovery and what a litigant can and cannot do.191
If discovery disputes do arise between the parties, consider holding
conferences, in person or by phone, as often as necessary to keep the caseon track. Pro se litigants “may not understand what they’re being asked
for, so . . . it’s much better . . . to have a discovery conference than justdealing with the back and forth on papers. . . . It’s more of your time,
but usually if there’s a real discovery dispute you can get to the bottomof it.”192 It may also be helpful to hold interim conferences after the ini189. Netburn, supra note 119, at 5.
190. See Minnesota Guidebook, supra note 96, at 57–92.
191. See N.D. Cal. Handbook, supra note 44, at 41–50 (see sections “What is Discovery?” and “What Can I Do if There are Problems With Disclosures or Discovery?”).
192. Bloom, Pro Se Issues 2014, supra note 15 (also noting that if there have been problems regarding depositions, it is helpful if the judge is available by phone during depositions
to quickly handle any disputes that arise). This is similar to the recommendations for resolving discovery disputes when both parties are represented. See Benchbook, supra note 114, at

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tial discovery order to evaluate progress and possibly head off any brewing disputes.193 See also the discussion infra in Part II.B.2 about holding
a premotion conference under Rule 16(b)(3)(B)(v) before allowing motions regarding discovery disputes to be filed.
If the pro se litigant seems to be having trouble meeting deadlines, be lenient as long as he or she seems to be acting in good faith.
Allow reasonable extensions unless you think the litigant is willfully
attempting to delay or otherwise obstruct discovery. If the pro se is
missing deadlines, not appearing at conferences or for depositions,
not responding to discovery requests, not conferring with opposing
counsel about disagreements, or otherwise failing to meet his or her
discovery obligations, give an explicit warning on the record, explain
the potential consequences of not cooperating, and set a new deadline. If the conduct recurs, consider applying sanctions if the litigant
does not have valid reasons for the failure to follow orders or rules,
including dismissal if lesser sanctions are insufficient. With the usual
leeway given to pro se litigants, the court should weigh other factors
surrounding the litigant’s actions, such as the willfulness or bad faithdemonstrated by the violations, the number of violations, the degreeof actual prejudice to the opposing party, whether the litigant was
adequately warned in advance of possible sanctions, the effect on the
court, and whether lesser sanctions, such as excluding evidence orcanceling a deposition, would be sufficient. Different circuits may
require consideration of different sets of factors. For a discussion of
discovery sanctions, see infra Part III.F.1.194
196 (“Consider requiring the parties to present discovery disputes informally (e.g., via a
telephone conference or a short letter) before allowing the parties to file formal discovery
motions and briefs. Many courts have found that they are able to resolve most discovery
disputes using these less formal—and considerably less expensive and less time-consuming—
methods. These courts do not allow counsel to file motions to compel or for sanctions before
getting the judge on the phone (with a court reporter or a tape machine) to discuss the issue.
Many courts find that they are able to resolve most discovery disputes over the telephone andthat simply being available encourages the parties to resolve many disputes on their own.”).
193. See Bloom, Practical Tips, supra note 185, at 58 (sample order for employment
case discovery, setting a status conference for six weeks after the date of the initial discovery
order).
194. See also id. at 28–30 (discussing cases allowing dismissal for discovery violations).

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F. Summary Judgment Warning and Standards
1. Providing Notice of Rule 56 Requirements
Responding to a motion for summary judgment is another potential
problem area for pro se litigants, who often understand neither theproper procedure nor the danger of failing to properly respond.195
Half of the circuits now require a district court to advise pro se litigants on how to respond to a summary judgment motion and warnof the consequences of responding incorrectly or not at all.196 Significantly, no circuit has prohibited a district court from so advising andwarning a pro se litigant, prisoner or nonprisoner. Even in the circuitsthat have refused to require a warning, a district court has the discretion to do so on its own initiative. Some legal authorities have suggested that, even when it is not required, “there is no harm in providing special notice to a pro se opponent, and it may help to deter or
defeat a subsequent Rule 60(b) motion for relief.” 197 In light of theconcepts of procedural fairness discussed supra in Part I, it would

195. See FJC Survey, supra note 7, at 22, table 18 (Two-thirds of responding judges
said that “[p]roblems with pro se responses to motions to dismiss or for summary judgment”
are “[p]resent in most or all pro se cases.” Although the survey did not distinguish between
motions to dismiss and for summary judgment, it seems unlikely that litigants would be any
less confused with summary judgment than with dismissal.). See also Bankruptcy Case Management Manual, supra note 101, at 751 (“Pro se litigants add a difficult dimension to thecourt’s work in ruling on a motion for summary judgment. Some have little knowledge ofthe law or of how the courts operate. . . . Pro se litigants on occasion believe that they canrely on their pleadings to oppose a motion for summary judgment or believe that a letter is asufficient response. They often do not understand the need for an affidavit, declaration . . . ,or other sworn or verified documentary evidence.”).
196. The other circuits either require advice and warnings only for prisoner pro ses, require it for no litigants, or have not addressed the issue. For a more thorough discussion ofcase law on this and other summary judgment issues, see infra Part III.B.
197. Judge William W Schwarzer, Judge Wallace Tashima & James Wagstaffe, Federal
Civil Procedure Before Trial § 14:73.3, at 14-22 (rev. ed. 2014). See also Bankruptcy CaseManagement Manual, supra note 101, at 752 (“Without specific notification, the pro selitigant might believe that the motion can be addressed at trial. Thus, the pro se litigant
ought to be provided with information concerning the type of response that is required andthe consequences of failing to provide such a response.”).

62II. Suggested Case-Management Practices for Civil Pro Se Litigation

seem that the better policy is to provide at least minimal notice of therule’s requirements to pro se litigants.
Simply providing a standardized handout would be beneficial.
[T]he better view as a matter of policy supports the provision of awarning that details the essentials of Rule 56 to all pro se parties including prisoners. It is true that the text of Rule 56 is silent regarding any special rules toward pro se parties. However, those casesthat require a movant to warn a pro se nonmovant of the dangers
of failing to comply with Rule 56 stand upon a solid constitutionalfooting by avoiding a significant and administratively costly problem that raises due process concerns. Providing a handout concerning the Rule 56 mechanism to all pro se litigants ensures fairness
and is a small price to pay for a summary judgment process that is
free of any arguments of unconstitutionality.198

Such a warning could also be included in a district’s pro se manual.

2. Court Discretion to Grant, Deny, or Delay the
MotionCourts’ efforts to enable pro se litigants to better respond to summary
judgment motions seem to be supported by the 2010 amendments toRule 56 and the accompanying commentary, which specificallyacknowledges that “[m]any courts take extra care with pro se litigants.”199 The newer provisions in the rules give district courts additional flexibility to examine the underlying merits of the case insteadof having the motion decided on the technical defects in—or outrightabsence of—the nonmoving party’s response. For example, amended
Rule 56(e) grants more discretion to the court when “a party fails toproperly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),” a common
situation with pro se litigants. The rule now provides that

198. Edward J. Brunet, John T. Parry & Martin H. Redish, Federal Law and Practice§ 9:12 (2014). See also infra Part III.B.1.a for sample warnings from the Southern and Eastern Districts of New York and the District of Wisconsin.
199. Fed. R. Civ. P. 56(e) advisory committee’s notes to 2010 amendments.

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the court may: (1) give an opportunity to properly support or address
the fact; (2) consider the fact undisputed for purposes of the motion;(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.200

The 2010 Advisory Committee Notes for Rule 56(e) emphasizethatsummary judgment cannot be granted by default even if there is acomplete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements.
Nor should it be denied by default even if the movant completely
fails to reply to a nonmovant’s response. Before deciding on otherpossible action, subdivision (e)(1) recognizes that the court may afford an opportunity to properly support or address the fact. In
many circumstances this opportunity will be the court’s preferredfirst step.201

The note for subsection (e)(4) seems to directly support the cases thatcall for pro se litigants to be warned about the complexities and hazards of summary judgment.
Subsection (e)(4) recognizes that still other orders may be appropriate. The choice among possible orders should be designed to encourage proper presentation of the record. Many courts take extra
care with pro se litigants, advising them of the need to respond andthe risk of losing by summary judgment if an adequate response is
not filed. And the court may seek to reassure itself by some examination of the record before granting summary judgment against a
pro se litigant.202

To this end, amended Rule 56(c)(3) states: “The court need consider only the cited materials, but it may consider other materials in
the record,” including “materials not called to its attention by the200. Fed. R. Civ. P. 56(e).
201. Fed. R. Civ. P. 56(e) advisory committee’s notes to 2010 amendments (emphasis
added).
202. Id.

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parties.”203 Thus, if a pro se litigant fails to properly cite to materials
in the record in responding to a motion, the district court has the discretion to independently consider all materials in the record that
could support the pro se’s opposition. Along these same lines, if aparty fails to adequately contest a fact, rather than considering thefact as undisputed for purposes of the motion, “the court may choose
not to consider the fact as undisputed, particularly if the court knowsof record materials that show grounds for genuine dispute.”204
Another aspect of Rule 56 that may ameliorate a pro se litigant’s
inadequate response is that the court has discretion to deny a motion
for summary judgment even if the rule’s standards are met. “It is established that although there is no discretion to enter summary
judgment when there is a genuine issue as to any material fact, there
is discretion to deny summary judgment when it appears that there isno genuine issue as to any material fact.”205 This reference to discretion to deny summary judgment is in keeping with established caselaw.206 As explained in Federal Practice and Procedure,in most situations in which the moving party seems to have discharged his burden of demonstrating that no genuine issue of fact exists, the court has discretion to deny a Rule 56 motion. This is appropriate since even though the summary-judgment standard appears
203. Fed. R. Civ. P. 56(c)(3) & advisory committee’s notes to 2010 amendments.
204. Fed. R. Civ. P. 56(e)(2) advisory committee’s notes to 2010 amendments.
205. Fed. R. Civ. P. 56 advisory committee’s notes to 2007 amendments. See also Fed.
R. Civ. P. 56 advisory committee’s notes to 2010 amendments (discussion about changing“should” back to “shall” after deciding neither “should” nor “must” were “suitable in light ofthe case law on whether a district court has discretion to deny summary judgment when
there appears to be no genuine dispute as to any material fact.”).
206. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) ( “Neither do wesuggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason
to believe that the better course would be to proceed to a full trial.”); Kunin v. Feofanov, 69
F.3d 59, 62 (5th Cir. 1995) (“[E]ven if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that a ‘better course would be toproceed to a full trial.’”); United States v. Certain Real and Pers. Prop. Belonging to Hayes,
943 F.2d 1292, 1297 (11th Cir. 1991) (“A trial court is permitted, in its discretion, to denyeven a well-supported motion for summary judgment, if it believes the case would benefit
from a full hearing.”).

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to have been met, the court should have the freedom to allow thecase to continue when it has any doubt as to the wisdom of terminating the action prior to a full trial. Of course, too frequent exercise of
discretion to deny summary judgment by the courts could vitiate theutility of the procedure. . . . Thus, the court’s discretion to denysummary judgment when it otherwise appears that the movant has
satisfied the Rule 56 burden should be exercised sparingly.207

It would be proper to deny summary judgment, for example, where
the nonmoving party has failed to offer any counter-affidavits or toprovide any explanation under Rule 56(f) as to why opposing affidavits are unavailable . . . if the opposing party is suffering fromsome handicap that prevents him from satisfying Rule 56(e) or
Rule 56(f), such as if the opposing party is a prisoner unrepresented
by counsel.208

Denial would also be proper “if the noncompliance with the rule
merely is technical and the opposing party appears to be proceedingin good faith,” such as “when the evidence offered in opposition to
the motion is defective in form but is sufficient to apprise the courtthat there is important and relevant information that could be proffered to defeat the motion.”209 Such flexibility is well suited to cases
involving pro se litigants, who often “fail[] to offer any counteraffidavits” and whose “evidence offered in opposition to the motion isdefective in form.”
In such instances, the court “should exercise discretion and grant
the adversary a continuance to remedy the defect.” The court may
also deny the motion when “it believes that further development of
the case is needed in order to be able to reach its decision . . . [and]the better course is to postpone consideration of the motion until further pleadings are served.”210

207. Wright, Miller & Kane, Federal Practice & Procedure: Civil § 2728, at 525–27(3d ed. 1998) (footnotes omitted).
208. Id. at 527.
209. Id. at 528–29.
210. Id. at 529–31.

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It should be stressed, however, that how to account for a litigant’s
pro se status remains within the judge’s discretion. In a case where
the plaintiff simply failed to present sufficient factual evidence to oppose summary judgment, for example, the Seventh Circuit affirmed
the district court’s decision to grant the motion. “We realize that thismay be the result of Arnett’s pro se status and lack of legal skills in
conducting discovery, but Arnett’s pro se status doesn’t alleviate hisburden on summary judgment.”211 Whatever the court does, the2010 amendments imposed a new requirement in Rule 56(a) that it“should state on the record the reasons for granting or denying the
motion.” The Advisory Committee Notes add that “[i]t is particularly
important to state the reasons for granting summary judgment. The
form and detail of the statement of reasons are left to the court’s discretion.”212

3. Declaration in Lieu of Affidavit
Previously, one other aspect of responding to a motion for summary
judgment that seemed to frequently trip up pro se litigants was theformer requirement in Rule 56(e) that their response must be supported by affidavit. However, after the 2010 amendments “[a] formal
affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn declaration, certificate, verification, or statement subscribed inproper form as true under penalty of perjury to substitute for an affidavit.”213 Under § 1746(2), a party may support or oppose a motion
by providing the signed and dated statement, “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true andcorrect.”
Note also that the “requirement that a sworn or certified copy ofa paper referred to in an affidavit or declaration be attached to theaffidavit or declaration is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be

211. Arnett v. Webster, 658 F.3d 742, 760 (7th Cir. 2011).
212. Fed. R. Civ. P. 56(a) & advisory committee’s notes to 2010 amendments.
213. Fed. R. Civ. P. 56(c)(4) advisory committee’s notes to 2010 amendments.

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supported by materials in the record.”214 Rule 56(h) carries forward
the penalties for submitting an affidavit—and now a declaration—in
bad faith.

G. Final Pretrial Conference and Trial[T]he conduct of a jury trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practice is a difficultand arduous task. The heavy responsibility of ensuring a fair trial insuch a situation rests directly on the trial judge. . . . In order thatthe trial proceed with fairness, . . . the judge finds that he must explain matters that would normally not require explanation andmust point out rules and procedures that would normally not require pointing out. Such an undertaking requires patience, skill andunderstanding on the part of the trial judge with an overriding viewof a fair trial for both sides.215

As with all civil litigation, few pro se cases actually make it to trial.216
When they do, the court can lessen the chance of the trial being a“difficult and arduous task” through thorough pretrial preparation.
“The prep is what the key is . . . . The more work you do pretrial, thebetter the trial will run. That’s just the way it is.”217
An extensive manual or guide may provide pro se litigants withmuch of the information they need to prepare for and proceed with atrial. The most comprehensive manuals provide an entire section on
the basics of trial preparation and the trial itself.218 The Southern Dis214. Id.
215. Ono v. Rogers, 466 N.E. 2d 658, 661 (Ill. App. 1984).
216. For the 12-month period ending Sept. 30, 2015, of the 274,362 civil cases thatwere terminated in the district courts, only 2,968 cases, approximately 1.1%, made it to trial(2,091 jury, 877 nonjury). Even among the civil consent cases terminated by magistrate
judges, only 2.3% (378 out of 16,424) made it to trial. See Admin. Office of the U.S.
Courts, 2015 Annual Report of the Director, at tables C-4 & M-5.
217. Bloom, Pro Se Issues 2014, supra note 15. See also Pechman & Robinson, supranote 139, at 11 (“By the time a trial actually starts, most of the decisions about how it will
run should have been made and communicated to the lawyers so that they know what toexpect and what the judge expects from them.”).
218. See, e.g., Minnesota Guidebook, supra note 96, at 106–15; N.D. Cal. Handbook,supra note 44, at 53–57.

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trict of New York even provides pro ses with a separate, hundredplus-page trial manual, covering everything from trial preparation,
jury selection, opening statements, evidence, witnesses, and closing
arguments, to the verdict, posttrial motions, and appeals. The manualis designed to be “an informative and practical resource and guide tounderstanding basic trial rules and procedures and . . . an overview oftrial practice in the Court.”219
Without a manual, “you will need to provide guidance as the prose party attempts to handle the trial alone.”220 Although the court cantake steps before trial to help the litigant prepare, “you will undoubtedly need to personally instruct the pro se litigant [during trial] as
well, while carefully maintaining your impartiality.”221
Before taking on that task, however, consider making an appointment of counsel for the limited purpose of handling the trial orassisting the pro se litigant (assuming he or she consents).222 A pro secase that has survived motions to dismiss and for summary judgment
and has made it through the discovery process should be much more
attractive to pro bono attorneys than a case that is just beginning.223
219. See S.D.N.Y. Trial Manual, supra note 99, at 1. See also Self-Represented Litigant
Guide Recommendations and Best Practices, supra note 54, at 16–21 (suggesting that courts
consider including a section on trial procedure when creating a pro se manual to “[t]ell thelitigant what a trial entails, how a jury is selected, how to present evidence, how a decision isreached, whether it be a jury trial or bench trial, and how to behave in court”).
220. Civil Litigation Management Manual, supra note 31, at 143.
221. Id.
222. See also FJC Survey, supra note 7, at 26 (“[T]rial presents by far the greatest needfor the assistance of counsel; 73% of the respondents said there is a ‘great need’ for counsel attrial. No other court event comes close in the respondents’ experience.”); Civil Litigation
Management Manual, supra note 31, at 143 (“If the case proceeds to trial, you will want tomake a serious effort, if you have not already, to appoint counsel.”); Pyle, supra note 83, at 6n.6 (“If a case gets past a motion for summary judgment, appointment of volunteer counsel
should be strongly considered.”).
223. See also Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (internal citation
omitted) (“Because district judges are reluctant to ‘squander[ ] [their] limited resources ofattorneys willing to take pro bono appointments,’ they often postpone the appointment
decision until after dispositive motions as a means of weeding out frivolous or unmeritorious
cases. The timing of the appointment may also reflect the district court’s assessment of theadequacy of the record for purposes of its own decisionmaking. A district court that initiallydenies a motion to appoint counsel because it feels comfortable resolving a motion to dismiss

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The District of South Carolina has a program specifically designed toappoint a pro bono attorney solely for the trial stage of a case:
A volunteer attorney would be appointed only after summary
judgment is denied and the case is set for trial. At that point, thevolunteer attorney takes over the case to prepare for and conduct
the trial. In other words, in most cases, there is no discovery to betaken; all that is required is participation at a pretrial conference,jury selection, and trial. Most judges, upon request, relieve the trial
attorney from any obligation to continue in the case if an appeal istaken.224

Appointing an attorney at this stage could also improve the prospects
for settlement, especially if the opposing party thinks that trial might
now be more difficult than anticipated.

1. Narrow the Issues for Trial at the Final Pretrial
Conference
Presumably, some matters may have been taken care of before thefinal pretrial conference. Perhaps some of the original claims weredismissed or resolved by summary judgment. The court may havealready ruled that certain evidence will not be admitted, and settlement discussions may have helped to narrow the issues that remain to
be tried.
A final pretrial conference provides an opportunity to prepare the
pro se litigant for trial. Such a conference is strongly encouraged. It is
the judge’s
primary way to ensure that the lawyers and the parties are prepared
to try the case and . . . to avoid surprises. The final pretrial conference allows the judge, with the parties and counsel, to identify thelegal issues that still need to be resolved. It also provides an opporon the basis of a record produced by a pro se plaintiff may later appoint counsel to ensure thedevelopment of a record adequate for summary judgment or trial.”).
224. See D.S.C. Website, “Volunteer Pro Bono Opportunities,” http://www.scd.
uscourts.gov/Attorney/ProBono.asp. The district also has “a fund consisting of monies paidby attorneys seeking pro hac vice admission” that may be used “to reimburse out-of-pocket
costs of attorneys who participate in this pro bono program.”70II. Suggested Case-Management Practices for Civil Pro Se Litigation

tunity to identify and address problems that otherwise might disrupt, delay, or unnecessarily complicate the trial.225

Consider it a dress rehearsal for the trial, a chance to see if the pro selitigant understands, for example, trial procedure, his or her burdenof proof, and the kinds of evidence that may or may not be presented,
with the opportunity to provide additional instruction as needed.226
As previously noted, “[c]ase management techniques and principles for standard civil cases with represented parties will usually, withminor modifications, be useful in a pro se case.”227 The Benchbook’s
section on the final pretrial conference (section 6.01) covers an arrayof case-management ideas that are readily adaptable to a case involving a pro se party. It provides a useful guide to preparing the parties
for the issues and evidence that are to be covered at trial as well as
limiting what will be covered in the trial. The less a pro se litigant has
to contend with at trial, the better. Any matters that can be eliminated or simplified should be.
Before the conference, the court can require the parties to makevarious submissions that will then be discussed at the conference.
Topics that may be particularly helpful in pro se cases include•••

identifying the factual issues to be resolved at trial and summarizing the party’s position on eachidentifying remaining disputed legal issues
if not already done, disclosing under Rule 26(a)(3) the identities of expected trial witnesses and any witnesses who will be

225. Benchbook, supra note 114, at 199. See also Self-Represented Litigant Guide Recommendations and Best Practices, supra note 54, at 15 (noting that a final pretrial conference provides “an opportunity to discuss the following: issues that will be tried, admissibilityof exhibits, pending motions, issues concerning jury selection, witnesses, possibility of settlement, length of trial, and any other relevant issues”).
226. Civil Litigation Management Manual, supra note 31, at 143–44. See also Zorza,
Toward Best Practices, supra note 51, at 37 (“Pretrial conferences allow questions of admissibility, organization of evidence, and courtroom procedure to be resolved without the formality, pressure, and time of the courtroom. The conference can resemble a ‘dress rehearsal’ of
the trial, going over the principal elements of testimony beforehand.”).
227. Pyle, supra note 83, at 1.

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Pro Se Case Management for Nonprisoner Civil Litigation••

presented by their depositions, and a list of all document andtrial exhibits
objections to trial exhibits or to the use of any deposition
motions in limine 228

In jury trials, the parties usually submit proposed voir dire questions,jury instructions, and verdict forms, and in a bench trial may be
asked for proposed findings of fact and conclusions of law. While“[p]reparing jury instructions and verdict forms is a useful discipline
for attorneys, requiring them to analyze their case and, more critically, the sufficiency of the available proof,”229 these actions may provechallenging for many pro se litigants. On the other hand, “[m]ost
circuits have pattern instructions that contain clear statements of thelaw and comments about when they should be used.”230 Since jury
instructions are, of necessity, designed to be understood by nonlawyers, working through case-specific jury instructions may give pro
se litigants a clearer understanding of their burden of proof, what thejury will have to decide and, therefore, what they will have toprove.231 By the time a case reaches the trial stage, the court shouldhave a good idea of whether the pro se would be able to handle suchmatters.

228. See Benchbook, supra note 114, at 200–01. Cf. Minnesota Guidebook, supra note
96, at 105 (The parties and judge “will discuss which facts in the case are undisputed, theissues to be tried, and anything else the judge believes may expedite the trial. The parties will
also be expected to discuss (1) disclosure of all witnesses; (2) the listing and exchange of all
exhibits; (3) motions in limine and objections to evidence; (4) all outstanding motions; (5)an itemized statement of damages; (6) their estimates of the length of the trial; and (7) jury
selection.”).
229. Civil Litigation Management Manual, supra note 31, at 102.
230. Pechman & Robinson, supra note 139, at 8.
231. See, e.g., Massachusetts Guidelines, supra note 39, at 4 (“In the judge’s discretion,
the elements of claims and defenses, as well as the burden of proof, may be explained in thesame manner that they would be explained to a jury.”).

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2. Evidentiary Issues
Because pro se litigants often have trouble with evidentiary issues,232 it
is even more important than usual to simplify the presentation of evidence and resolve possible disputes. At the final pretrial conference,the court can work with the parties and their preconference submissions “to narrow and refine the issues for trial. Ruling on motions inlimine may be an important part of this work. Narrowing and refining the issues and ruling in advance on as many issues as the record
permits allow the court and parties to conduct the trial more efficiently.”233
As in any civil case, the court can use the pretrial conference to“[p]review proposed testimony and eliminate what is repetitious ordoes not address a genuine dispute[;] . . . [p]review proposed exhibits
and have the [parties] pare their lists down to essentials; suggest redaction to eliminate irrelevant portions[; and] . . . [r]eceive exhibits inadvance and rule on evidentiary objections to the extent possible.”234
It is also helpful to have the parties “stipulate to uncontested facts andthe admission of as much of the documentary evidence as possible.”235
Consider requiring the parties to “mark all the exhibits [they] intend to introduce at trial before the trial, a process known as premark232. See, e.g., Terry Carter, Judges Say Litigants Are Increasingly Going Pro Se—at Their
Own Peril, ABA J., July 12, 2012, http://www.abajournal.com/news/article/judges_
say_litigants_increasingly_going_pro_se--at_their_own_ (survey of almost 1,000 state judges
found that the “greatest problem is failure to present necessary evidence, . . . followed byprocedural errors, ineffective witness examination and failure to properly object to evidence”).
233. Benchbook, supra note 114, at 202.
234. Pechman & Robinson, supra note 139, at 9. See also Civil Litigation Management
Manual, supra note 31, at 102 (“Exclude evidence bearing on uncontested matters and evidence that is cumulative or unnecessary.”); S.D.N.Y. Trial Manual, supra note 99, at 17–18(“at the final pretrial conference the Judge may discuss with the parties the substance andlength of each proposed witness’s testimony; require a party to limit a witness’s testimony;
direct that witnesses may not testify about certain matters; or rule that certain witnesses cannot testify at all”).
235. Gray, supra note 20, at 55. See also Civil Litigation Management Manual, supranote 31, at 102 (“Arrive at a final and binding statement of the factual and legal issues to betried, and encourage stipulations.”).

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Pro Se Case Management for Nonprisoner Civil Litigationing exhibits. This process generally saves time and avoids confusion
during the trial.” 236 It would also allow the pro se more time to consider and raise any objections to the other party’s exhibits and avoid
having to try to do so during the trial. Even if exhibits are marked
before trial, make sure the pro se understands the process involved in
actually having an exhibit admitted as evidence before the jury mayview it or a witness may discuss it during the trial. The litigant must
provide a copy of the exhibit to the judge and to the opposing party
to review (if not already provided before trial), lay a foundation for
the evidence, and request that the exhibit be admitted into evidence.237
If the pro se will have a significant number of witnesses and exhibits, establishing a foundation for that evidence in advance, or atleast making sure the litigant knows how to do so, could save significant time and frustration during the trial. “Evidence that requires
foundation—documents and hearsay—seems to produce the mosttime-wasting confusion in trials. A focus on the required foundations
in a pretrial conference will improve trial efficiency.”238
If the circumstances warrant, a trial court may even require a pro
se litigant to submit questions for witnesses in advance of a jury trial.
Appellate courts have repeatedly stated that trial courts should use
Rule 16 to expedite litigation and prevent surprise during trial. . . .

236. S.D.N.Y. Trial Manual, supra note 99, at 66. See also Benchbook, supra note 114,
at 201–02 (“To ensure that the evidence is ready for trial and to minimize surprises, consider
requiring the parties to exchange not only lists of exhibits, but actual copies of exhibitsmarked for introduction into evidence. . . . The final pretrial conference provides an opportunity to preadmit exhibits if there will be no objections or if the court is able to resolve theobjections and rule on admissibility.”).
237. Cf. National Bench Guide, supra note 20, at 6-16 (“[L]itigants should be advisedas part of the introductory script that any documents or other evidence received by the court
must be shown to the other party first. The judge should also explain the process for marking
exhibits and for referring to them.”).
238. Zorza, Toward Best Practices, supra note 51, at 40. See also Snukals & Sturtevant,supra note 69, at 95 (“If the pro se litigant is knowledgeable enough to proceed with his caseto trial, laying a proper foundation for admission of evidence and navigating the hearsay
exceptions are sure to make the already difficult job of self-representation nearly impossible.”).

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The court in this case attempted to do exactly what Rule 16
envisions, albeit by somewhat novel methods. The court, based upon its observation of plaintiff Miller, concluded that Miller was
likely to pose questions at trial that would warrant continuous objection by his adversary. The court feared that constant objections,many of which might be meritorious, would not only lengthen thetrial unnecessarily, but would also work to Miller’s ultimate detriment. The court therefore exercised the broad discretion available
to it under Rule 16 . . . in requiring Miller to submit his questionsin advance [so the court could rule on the defendants’ objections
before trial]. We believe that the court’s requirement in this case,like a requirement that parties disclose witnesses and the subject
matter of witnesses’ testimony, or that exhibits be submitted in advance so that objections can be made at the pretrial stage, is clearly
permissible under the Rules. See Fed. R. Civ. P. 16(c).239

The appellate court recognized that requiring only one side to disclose its questions could result in a serious disadvantage, but concluded that did not happen here.
There is no basis for holding that the court’s order resulted in any
unfairness. Although the appellant suggests that he was deprived of
spontaneity in his questioning, he has not indicated what he would
have done differently or what questions he might have asked had hebeen completely free to ask spontaneous questions on direct examination. The plaintiff was permitted unfettered redirect examinationof his witnesses, full rebuttal, and cross-examination of the defendant’s witnesses. Although the district court did not request in advance the precise questions that the defense counsel wished to ask
of its witnesses, the nature of the defense and the witnesses to bepresented were comprehensively disclosed prior to trial.
The questions that the plaintiff submitted contained a numberof inappropriate and irrelevant lines of inquiry, which were properly foreclosed. The result was that the plaintiff was able to present

239. Miller v. Los Angeles Cty. Bd. of Educ., 799 F.2d 486, 488 (9th Cir. 1986). See
also Fed. R. Civ. P. 16(e) (“The court may hold a final pretrial conference to formulate a trial
plan, including a plan to facilitate the admission of evidence.”).

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his case to the jury with a minimum of interruption. The district
court’s procedure clearly worked to his advantage in that regard.240

For bench trials, consider requiring that direct testimony by witnesses—including the pro se litigant241—be presented by written narrative, with live questioning on cross-examination and redirect asneeded.
Under this procedure the parties submit written narrative testimony of each witness they expect to call for purposes of direct evidence. The witness then testifies orally on cross-examination andon redirect. . . .
The bankruptcy court’s procedure . . . is consistent with Fed.
R. Evid. 611(a), which allows the court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid
needless consumption of time.”. . .
The use of written testimony “is an accepted and encouraged
technique for shortening bench trials.”. . . The bankruptcy court’s
procedure permits oral cross-examination and redirect examinationin open court and thereby preserves an opportunity for the judge toevaluate the declarant’s demeanor and credibility.242

240. Miller, 799 F.2d at 488. Cf. Malone v. U.S. Postal Serv., 833 F.2d 128, 129, 133–
34 (9th Cir. 1987) (in case where both parties were represented and a mistrial had been declared, district court did not abuse its discretion in issuing pretrial order that required bothparties to file “a complete list of witnesses and a ‘thorough and complete list of each andevery’ direct question and anticipated response” prior to a new trial. “[T]he pretrial order atissue served a valuable purpose by trying to organize a very disorganized case.”).
241. Pyle, supra note 83, at 6 (“[I]t should be discussed how the [pro se] plaintiff will
testify. The best way may be in narrative form with the trial judge encouraged to interrupt
and redirect plaintiff if he repeatedly gets into objectionable areas.”).
242. In re Adair, 965 F.2d 777, 779 (9th Cir. 1992) (internal citations omitted). See also Ball v. Interoceanica Corp., 71 F.3d 73, 77 (2d Cir. 1995) (“Like the Ninth Circuit, weapprove the procedure allowing the parties to produce direct evidence from their witnesses inwriting while permitting subsequent oral cross-examination—particularly when the parties
agree to that procedure in advance.”); Saverson v. Levitt, 162 F.R.D. 407, 410 (D.D.C.
1995) (when full cross-examination would be permitted at trial, “[r]equiring the parties tosubmit their direct testimony in writing in lieu of the usual question-and-answer form is76

II. Suggested Case-Management Practices for Civil Pro Se Litigation

Note that there was some discussion about changing Rule 43(a) to
specifically allow written testimony in lieu of oral, but the Advisory
Committee on Civil Rules concluded that “Rule 611(a) . . . provides
sufficient authority for using this procedure when appropriate.”243
Be sure to tell pro ses that, with only a few exceptions, they “willnot be able to present exhibits or call witnesses at trial if they are notlisted in the pretrial order. Thus, [they] must be certain that [they]listed all of [their] potential witnesses and exhibits in the pretrial order. [They] are not, however, obligated to call every witness or introduce at trial every piece of evidence listed in the pretrial order.”244
Also make sure that pro se plaintiffs understand that they should raise
any issues they want to present to the fact finder during their initialpresentation of witnesses and evidence. They generally cannot refer toany matters later, on redirect or in rebuttal, unless they were previously raised by the plaintiff or by the defense.245 For more discussionof evidentiary issues that may arise during trial, see infra Part III.E.

3. Court Practices and Procedures“Many judges use the final pretrial conference to educate lawyers andparties on the court’s trial practices,” and the court should make sure
sanctioned under the inherent powers of the Court, the Federal Rules of Civil Procedure andthe Federal Rules of Evidence”); In re Stevinson, 194 B.R. 509, 511 (D. Colo. 1996) (finding that “the bankruptcy court’s standard procedure of requiring direct testimony by written
declaration while permitting oral cross-examination and redirect in open court offends neither due process nor Rule 43(a)—particularly where, as here, the parties fail to object to thatprocedure as notified in the scheduling order”).
243. See Attachment to Letter to Hon. Robert E. Keeton, Chairman, Standing Committee on Rules of Practice and Procedure, from Sam C. Pointer, Jr., Chairman, Advisory
Committee on Civil Rules 3 (May 17, 1993), available at http://www.uscourts.gov/rulespolicies/archives/committee-reports/advisory-committee-rules-civil-procedure-may-1993.
244. S.D.N.Y. Trial Manual, supra note 99, at 16.
245. See, e.g., id. at 62 (“Questions on redirect examination are generally limited to thesubjects covered in cross examination.”); D. Kan., Filing Your Lawsuit in Federal Court: A
Pro Se Guide 22 (rev. ed. 2016) [hereinafter Kansas Pro Se Guide], available at
http://www.ksd.uscourts.gov/filing-your-lawsuit-in-federal-court-a-pro-se-guide-2/ (“Whenthe defense is through, you will have a chance to put on any additional witnesses. These arecalled ‘rebuttal witnesses.’ If you have any rebuttal witnesses, you may not ask them any newquestions on topics that were not already discussed.”).

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the pro se party is aware of these. The court should also consider informing the parties of its “expectations for the conduct of trial counsel. For example, the judge can educate the parties about proper practice for marking and presenting exhibits, for approaching witnesses,
or for the use of courtroom equipment. Such an education can beparticularly valuable for trials involving pro se litigants.”246 Other useful topics for discussion include “[w]ho goes first, order of the case,
who can be at counsel table, . . . difference between direct and crossexamination (no leading witnesses on direct), no argument until closing, and necessity to formalize objections and wait for ruling.”247
If it has not been done already, consider informing pro se litigants
about courtroom decorum, since they may be completely unfamiliar
with seemingly simple matters like where and when to sit, how todress, how to address the court, and so on. Some districts’ pro se
manuals cover this, and the court can simply make sure litigants havea copy. The manual from the District Court of Kansas, for example,
instructs litigants that
WHEN YOU ARE IN COURT:•••Do not bring your cell phone, cameras, or recording devices.
No weapons, drugs or other illegal items allowed.
Dress properly and take off your hat (be neat and clean).

•No gum chewing; no eating; no drinking; no reading newspapers or magazines; no sleeping; no loud talking.

•

When the judge enters or leaves the courtroom, you muststand up.
Call the judge “Your Honor;” speak clearly.

•

246. Benchbook, supra note 114, at 203. See also Gray, supra note 20, at 55 (“Explain
the process and ground rules (e.g., that you will hear from both sides, who goes first, everything said will be recorded, witnesses will be sworn in, witnesses may be cross examined, how
to make an objection).”).
247. See, e.g., Judge Robert E. Jones, Judge Gerald E. Rosen, William E. Wegner &Judge Jeffrey S. Jones, Federal Civil Trials and Evidence § 4:240 (July 2015) (“Every judge
has personal ‘ground rules’ regarding conduct of trial and courtroom demeanor and many
have reduced these rules to writing. The specifics vary among judges and should be madeknown during the final pretrial conference.”).

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II. Suggested Case-Management Practices for Civil Pro Se Litigation•

Be respectful to the court security officers. They are here foryour protection.248

The Southern District of New York’s Representing Yourself at Trialmanual has an extensive list of similar do’s and don’ts and even provides a sketch of the layout of a typical courtroom, showing the litigant where the parties, judge, and jury are usually located.249

4. Other Matters
In a bench trial, consider waiving opening statements if the court isfamiliar with the facts and the issues to be decided and the pro seplaintiff would essentially say the same thing as he or she would during testimony.250 If it is a jury trial, make sure the pro se litigant understands that the purpose of making an opening statement to thejury is “for each party to describe the issues in the case and state what
they expect to prove during the trial. An opening statement is neither
evidence nor a legal argument,”251 and the parties “must not mention
any evidence or issues that the judge has excluded from the trial.”252
Consider asking the pro se about other common trial preparations that he or she may not have thought of, such as having a trial
248. Kansas Pro Se Guide, supra note 245, at 24. See also Self-Represented Litigant
Guide Recommendations and Best Practices, supra note 54, at 19 (suggesting that courts
may want to include a section on proper court etiquette when creating a pro se manual).
249. S.D.N.Y. Trial Manual, supra note 99, at 7–8. See also Gray, supra note 20, at 52(“Give a basic introduction to courtroom protocol, for example, the importance of timeliness, checking in with the clerk (if that is necessary), who sits where, directing arguments toyou, not other parties or attorneys, rising when you enter, and other matters you consider
important (attire, gum chewing, reading while court is in session, etc.).”).
250. S.D.N.Y. Trial Manual, supra note 99, at 31 (“The Judge may ask the parties towaive, or skip, their opening statements. This most often occurs in a bench trial where theJudge is already familiar with the facts, or when the Judge determines that opening statements will be redundant or lengthen the trial needlessly.”).
251. N.D. Cal. Handbook, supra note 44, at 56.
252. Minnesota Guidebook, supra note 96, at 111. See also Zorza, Toward Best Practices, supra note 51, at 40 (“Sometimes the self-represented get carried away and have difficulty
limiting themselves to what is to be or has been shown by the evidence. Chambers conferences may be useful to review the key points to be made, minimizing the risk of judicial
interventions before the jury, which could be highly prejudicial.”).

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notebook to organize materials or preparing witnesses and making
sure they will be available for the trial. Pro se litigants “often fail toadequately prepare their case by forgetting to subpoena witnesses orprovide the court with case law and statutory support for their legal
positions, all of which have a number of significant consequences that
affect more than just the individual pro se litigant.”253 It may help toallow “a non-attorney advocate to sit at the pro se party’s counsel table, and [explain] that this advocate may provide support but will not
be permitted to argue on behalf of the party or to question witnesses.”254
Finally, provide the parties with another chance to discuss settlement.
The final pretrial conference presents one last opportunity to discuss settlement with counsel and the parties, who may now realize
for the first time the actual burdens of going forward. For thosecases that do not settle, actual trial time may be shortened as a consequence of frank settlement discussions at this time.255

While formulating the plan for trial, keep in mind that “[j]udges
have broad inherent discretion to manage the trial of the cases assigned to them”256 and that “a trial court [has] wide procedural leeway to conduct its civil business in the interest of the sound and efficient administration of justice.”257 This provides judges with great
253. See Snukals & Sturtevant, supra note 69, at 96.
254. Civil Litigation Management Manual, supra note 31, at 144.
255. Id. at 104.
256. Id. at 109. See also Daniel J. Meador, Inherent Judicial Authority in the Conduct ofCivil Litigation, 73 Tex. L. Rev. 1805, 1810 (1995) (“Written rules and statutes are unlikely
as a practical matter to provide for all the many things a trial judge may need to do—or may
find it useful to do—in dealing effectively with cases during the pretrial phase.”).
257. Meador, supra note 256, at 1805–06. “Provisions such as those in Federal Rules ofCivil Procedure 16, 26, 37, and 42 . . . explicitly authorize trial courts to exercise wideranging managerial control over civil cases. Nevertheless, much of what trial courts do, andindeed must do, in the conduct of their business is not provided for in any rule or statuteand thus necessarily rests on . . . a broad, inherent authority . . . to exert a high degree ofaffirmative case management if they choose to do so.” Id. at 1806–07. See also In re San Juan
Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1012 at n.2 (1st Cir. 1988) (“[D]istrict
courts ‘have inherent powers, rooted in the chancellor’s equity powers, “to process litigation80II. Suggested Case-Management Practices for Civil Pro Se Litigation

flexibility to tailor pretrial discussions and trial procedures to both thefacts of the case and the characteristics of the individual litigants.
Getting as many issues resolved as possible and educating a pro selitigant about trial procedures and courtroom protocol before trial
will allow the litigant to focus on the essentials and not waste timeand energy during the trial trying to cover matters that are not relevant or will not be allowed. Perhaps more importantly, it lessens the
chance that a litigant will become confused, discouraged, or worse if
the trial court has to frequently deny admission of evidence, interrupt
to stop improper questioning, or otherwise correct or instruct the litigant during what is likely an already stressful trial experience.

5. During the Triala. Opening Remarks
At the beginning of the trial (before the jury is seated, if there is one),ask the parties if they have any additional questions about trial procedure. This assumes that trial procedures were already covered in a final pretrial conference. It may be helpful to review “how the proceeding will be conducted, the legal elements of the matter, and types andforms of acceptable evidence.”258 Remind the parties that they will begiven adequate opportunity to state their case and that they must notinterrupt the other party. “Except when examining or crossexamining witnesses, litigants should address their remarks and questions to the judge. They should not direct comments to the opposing
party or counsel for the opposing party.”259 Assure the pro se litigantthat these rules apply equally to both parties.
to a just and equitable conclusion.”’ . . . The judiciary is ‘free, within reason, to exercise thisinherent judicial power in flexible, pragmatic ways.’”) (citations omitted); Eash v. Riggins
Trucking Inc., 757 F.2d 557, 567 (3d Cir. 1985) (en banc) (“A court’s inherent power tomanage its caseload, control its docket, and regulate the conduct of attorneys before it, provides authority to fashion tools that aid the court in getting on with the business of deciding
cases.”).
258. Albrecht et al., supra note 20, at 45.
259. Massachusetts Guidelines, supra note 39, at 5. See also Tait, supra note 14, at 13–
14 (“Make sure the courtroom ground rules are clear—it’s a lot easier for people to follow
the rules if they know what they are. For instance, let court participants know that while81

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If it is a jury trial, explain to the jury, perhaps even during jury selection, that the plaintiff (or defendant) is representing himself or
herself, that he or she has the right to do so, and that the jury should
not draw any negative inferences from the lack of an attorney or treat
the parties differently in any way. Consider giving a jury instruction
to this effect, as well as telling the jury that there may be more discussions between the judge and the parties than if both sides had an attorney, that this is not unusual, and that it should not influence theirdecision in any way.260 Also let the jury know that if the court interrupts the testimony or asks questions of witnesses, it is only to help
keep the case on track and to clarify facts and issues as needed—it
should not be taken as an indication that the judge favors one side or
the other. Occasional reminders to the jury during trial may be given
as needed, and reiterated in the final jury instructions.
b. Testimony
Staying on point while examining a witness, or during their own testimony, may prove difficult for pro se litigants. The case may move
more efficiently if the court helps the litigant to “stay focused on matters that are relevant to the . . . ultimate decision. Most litigants appreciate assistance in focusing their testimony, often because of uncertainty about what the judge needs to hear. Explaining the refocusing will make it easier for the litigant to stay on topic.”261
A related problem is that it may be unclear whether testimonythat the litigant is giving or trying to elicit from a witness is relevantto the issue at hand. Giving litigants an opportunity “to explain how
it will help you [or the jury] decide the case may be the fairest andsimplest approach. In some cases, it may then become necessary tohear the testimony or to explain the lack of legal relevance.”262
they’re not supposed to interrupt, you might need to interrupt them in order to make bestuse of the time available. Then if you do interrupt, it doesn’t come across as disrespectful.”).
260. Zorza, Toward Best Practices, supra note 51, at 41.
261. Richard Zorza, A New Day for Judges and the Self-Represented: The Implications ofTurner v. Rogers, 50 The Judges’ Journal, no.4, 16, 19 (Fall 2011) [hereinafter Zorza, A
New Day].
262. Id.

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A pro se litigant may also become flustered if opposing counsel ismaking frequent objections. Of course, some objections are inevitable(although there should be relatively few if evidence was previewed at
the final pretrial conference), but the court may need to determine
whether they are made in good faith.
Initial objections should be treated respectfully. But if counsel appears to be making objections for tactical purposes, rather than to
exclude inappropriate evidence, permit a standing objection andwarn counsel to limit the frequency of objections, stating the reason
for this instruction. Giving the attorney an opportunity at the endof that phase of the proceeding to identify any particular harm thatthe modified proceeding has caused should then fully protect therecord.263

If needed, a short recess can give the pro se time to regroup and allows for any heightened emotions to subside. “Call breaks where necessary if a litigant is becoming confused or tempers on either side are
becoming frayed (or your patience is running low).”264 And if the caseinvolves a jury, the court may have to balance solicitude toward the
pro se with keeping inadmissible evidence from the jury.
The court may also have to respond to overly aggressive tactics designed to harass, intimidate, or confuse a witness. “Counsel is entitledto be exploratory in cross-examination and to make helpful factual
263. Zorza, Toward Best Practices, supra note 51, at 37. See also Massachusetts Guidelines, supra note 39, at 10 (“This does not mean that a judge must become a lawyer for aself­represented litigant; however, the judge should recognize when opposing counsel is ‘engaging in improper tactics and taking advantage of the [self-represented litigant’s] unrepresented status’ and ‘promptly intervene[], not to be of assistance to the [self-represented litigant], but to assert a judge’s traditional role of making sure that all the parties receive a fairtrial. . . . A pro se [party] is not entitled to any greater protection than a [party] represented
by counsel—but he is not entitled to any less protection either.’”) (internal citations omitted).
264. Gray, supra note 20, at 56. See also National Bench Guide, supra note 20, at 6-20
to 6-21 (“It is possible that a litigant may become too anxious to participate reasonably inthe hearing. If so, a recess should be taken to allow the person a chance to calm down before
further action is taken. Providing the litigant with an opportunity to go out of the courtroom, have a glass of water, or otherwise ‘take a break’ can provide the time needed for him
or her to regain composure.”).

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points, not to humiliate or deter a witness. Judges should put counsel
on notice of the problems with their approach and escalate their interventions. The judge can request the basis of cross-examination or representations that the questions are based on a good-faith belief in thepossibility of their leading to relevant testimony.”265
c. Judicial Questioning
During the course of the trial, judges “may use their discretion, whenpermissible, to provide self-represented litigants the opportunity tomeaningfully present their cases. Judges may ask questions to elicit
general information and to obtain clarification.”266 If the litigant ishaving trouble properly introducing evidence, for example, the court
may “[a]sk questions to establish the foundation of evidence. Often
litigants don’t know the hearsay or foundational rules of evidence.
The judge can ask questions, perhaps detailed questions, to determine
weight or admissibility, even if there has been no objection to the evidence offered.”267
If the opposing attorney does make an objection, the court canrequire a detailed explanation of the grounds for objection to makesure the pro se litigant understands why the evidence may be inadmissible. Similarly, if the court rules evidence is inadmissible, explain
the basis for ruling so that the pro se can try to properly admit theevidence. “Concise objections are likely to confuse the selfrepresented litigant. Judges can request greater specificity and explanation, ask additional questions about the evidence, explain the pro-

265. Zorza, Toward Best Practices, supra note 51, at 37. “Similar techniques are appropriate with a self-represented party who is engaging in similar behavior.” Id. See also Gray,supra note 20, at 56 (“Require counsel to explain objections in detail. If counsel objects, ask
if he or she is arguing that the evidence is unreliable. . . . Do not allow counsel to bully or
confuse self-represented litigants or their witnesses.”).
266. Massachusetts Guidelines, supra note 39, at 9.
267. Zorza, A New Day, supra note 261, at 18.

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cess and the ruling, and possibly indicate another way to make thepoint.”268
In general, the court has discretion
to ask questions and follow-up questions to focus the litigants andget the information you need to decide the case in a timely manner.
Self-represented litigants usually appreciate it when judges help
them focus on the relevant issues. The time saving is obvious. If
you have indicated at the beginning of the hearing that you may
ask questions, it is often useful to remind the litigants of that earlier
indication at the time that you do ask them.269

If a jury is involved, the court should instruct the jury, and repeat asneeded, that they should not consider questions from the judge “asany indication of the judge’s opinion as to how the jury should decide
the case and that if the jury believes that the judge has expressed orhinted at any opinion about the facts of the case, they should disregard it.”270 For further discussion of judicial questioning, see infra
Part III.E.1, “Court Discretion to Call and Question Witnesses andDevelop Facts.”
d. Admission of Evidence in General
As noted supra in Part I.A.2.b, evidentiary issues can be particularly
difficult for pro se litigants, and within reason, concern for procedural fairness favors avoiding the strict application of evidence rules in268. Zorza, Toward Best Practices, supra note 51, at 37. See also Massachusetts Guidelines, supra note 39, at 10 (“Judges may require counsel to explain objections in detail, andjudges should explain their evidentiary rulings.”).
269. Juhas et al., supra note 35, at 18. See also Johnson v. Gen. Bd. of Pension &Health Benefits of United Methodist Church, 733 F.3d 722, 733–34 (7th Cir. 2013) (rejecting pro se plaintiff’s claim that trial court showed bias against pro se litigants, explainingthat “‘Federal judges have wide discretion to determine the role that they will play during thecourse of a trial. A district judge is free to interject during a direct or cross-examination toclarify an issue, to require an attorney to lay a foundation, or to encourage an examining
attorney to get to the point.’ The district court’s occasional interjections during trial, thedenial of some of Johnson’s requests for sidebar conferences, and the other sundry events
that Johnson identifies fall well within the district court’s discretion to manage the trial.”)(internal citations omitted).
270. Massachusetts Guidelines, supra note 39, at 11.

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order to give a pro se litigant a better chance to make his or her case.
Whether particular evidence is material and has sufficient indicia of
reliability are often matters for the court’s judgment and discretion,
especially in a bench trial. It may be fairer to a pro se litigant, and in
keeping with both the spirit and text of Rule 102, to construe therules of evidence in a flexible manner, “to the end of ascertaining thetruth and securing a just determination.”271 Although greater careshould be taken when a jury is involved, judges have great discretionin deciding what evidence to allow in a civil case, and reversals seemto occur more frequently for errors in excluding evidence rather thanfor admitting too much.
[A]n analysis of evidentiary issues in federal cases found that the vast
majority was overturned because the judges did not admit evidence,
not because they admitted it erroneously. Although there are few
published case law and ethics opinions regarding self-represented litigants, what is written is instructive. On appeal, trial judges are commended for being helpful rather than hurtful to self-represented litigants. In only the most extreme circumstances have judges been reversed or sanctioned for assisting self-represented litigants in presenting their cases. Stepping off the bench to do independent research fora self-represented litigant, for example, is not allowed. But asking
questions of both sides to ascertain information needed to make adecision is absolutely appropriate, and often required.272

While some rules of evidence are fairly strict about what may or may
not be admitted,
most of the evidence rules provide a bit of guidance but leave thetrial judge free to make an ad hoc decision that balances probativevalue and potential prejudice. The trial judge has so much discre271. Fed. R. Evid. 102.
272. Adam, supra note 76, at 22. See also Murray & Sheldon, supra note 51, at 34 n.49(“Out of almost forty thousand federal civil and criminal, jury and nonjury trial court verdicts and judgments entered from July 1, 1988, to June 30, 1990, across the country, only
thirty cases were reversed for evidentiary error. . . . Seventeen of those were civil cases, and ofthem about two-thirds—eleven out of seventeen—were reversed because the court erroneously excluded evidence. . . . In other words, reversals for the wrongful admission of evidence, in all such civil cases, were almost immeasurably few.”) (internal citations omitted).

86II. Suggested Case-Management Practices for Civil Pro Se Litigation

tion in making many evidence rulings she effectively has the lastword. . . . On appeal, the need to show that an error in admitting
or excluding evidence had a substantial impact on the outcome also
insulates evidence rulings from reversal.273

For further analysis of evidentiary issues at trial, see infra Part III.E.
e. Issuing the Decision
Most pro se cases are decided by the court rather than by a jury, andthe court will have to decide when to issue its decision. There are differing opinions on whether the court should try to issue the decision
promptly at the close of evidence or take the matter under advisement
and issue a written opinion. The circumstances of each case should
determine which course to take.
Judges should exercise discretion in deciding whether to issue a decision at the close of the hearing while both parties are present, orto inform the parties that the matter will be taken under advisement and that a written decision will be mailed to them. In cases
where there is no immediate need to enter an order, the judge may
inform the parties that the judge wishes to consider their evidence
and arguments before making a decision. If possible, the judge
should give a time frame within which the case will be decided.
....
Depending upon the circumstances, there may be practical reasons
not to issue an immediate order, apart from the judge’s need to review the file and the law. . . . A decision issued from the bench,
particularly if it is not favorable to the self-represented litigant, may
result in an outburst directed to the other side, disruption of thecourt session, or security concerns. Sometimes the self-represented
273. Elizabeth G. Thornburg, The Managerial Judge Goes to Trial, 44 U. Rich. L. Rev.
1261, 1280 & n.94 (2010). See also DVD: Court Web: Hearsay (Federal Judicial Center
July 16, 2015) (feat. Prof. David A. Sonenshein) (“The number of reversals on evidentiary
rulings is miniscule . . . . In a very close case, I think a judge is, and probably should be, free
to do what he thinks or she thinks is the fairest thing to do and not really worry about reversal because . . . you have to really be way off. If it’s close, it’s very hard to say you are going to
be reversed.”); Meador, supra note 256, at 1816 (appellate courts “tend to accord broad deference to trial courts on matters of procedure and case management”).

87Pro Se Case Management for Nonprisoner Civil Litigation

party will seek to reargue the case to be sure the judge “understands.” These problems can cause serious delays in busy sessions. A
written decision, issued by mail, allows the parties to receive it privately, away from the stress of the proceedings, and to reflect on
how they wish to proceed.274

On the other hand, “judges may have trouble finding time to decide
the case once it is submitted, and cases become more difficult to decide as they grow cold with the passage of time.” Many judges will“tak[e] a case under submission only if it cannot be decided from thebench and then set[] a deadline on their calendar for its decision. A
prompt decision saves resources, increases the parties’ and public’s
satisfaction with the court, and eases the judge’s burden.”275
Whether the decision is given immediately or written later, provide an explanation for it and consider recognizing the positions ofboth sides. “When litigants understand the reasoning behind the decision, it is often easier for them to respect and comply with [it]. . . .
A litigant whose position seems to have been fully considered, even if
ultimately rejected, is more likely to respect that decision and find away to comply with it.”276
If the pro se litigant lost on some or all of the issues, inform him
or her of any right to appeal and that, unless overturned by the appeals court, any issues decided in the case may not be raised again in afederal district court.
274. Massachusetts Guidelines, supra note 39, at 13. Cf. Juhas et al., supra note 35, at
19 (“While some judges have been reluctant to issue decisions immediately, fearing outbursts
or security problems, as a practical matter in most cases such complications do not occur.
Rather, the announcement of the decision increases the chance of comprehension and thelikelihood that litigants will understand their obligations. It also provides an opportunity toclear up any confusion or ambiguities and to resolve any problems that may be clear to theparties but not necessarily to the judge.”).
275. Civil Litigation Management Manual, supra note 31, at 113–14. In pro se cases,“[w]hen the trial concludes, decide the matter promptly, if at all possible, and enter yourdecision.” Id. at 144.
276. Zorza, A New Day, supra note 261, at 20. See also Massachusetts Guidelines, supranote 39, at 56 (“Issue an order in plain English explaining the decision, addressing all material issues raised, resolving the contested issues of fact, and announcing conclusions of law.”);Juhas et al., supra note 35, at 19 (“Make sure that the litigants understand your decision,
what they have been ordered to do, and the consequences of noncompliance.”).

88II. Suggested Case-Management Practices for Civil Pro Se Litigation

H. Interpreters
1. Statutes and Case Law
Pro se litigants who have a limited command of English and limited
finances might request that the court provide them with the servicesof an interpreter at no cost. There is, however, no statutory provisionthat allows this for pro se plaintiffs, and only limited provision for
pro se defendants in civil litigation. Under the Court Interpreters Act
at 28 U.S.C. § 1827(d)(1), courts are authorized to provide an interpreter for a party or witness at no cost, but only “in judicial proceedings instituted by the United States.” This limitation is strictly enforced, and courts have rejected attempts by pro se plaintiffs, including those who qualify for in forma pauperis status, to obtain the services of an interpreter under this section.277 Some courts have ruledthat § 1827(d) applies to translating written materials, too, such as
pleadings or transcripts.278

277. See, e.g., Abdi v. Garbisch, No. 12-306 (JNE/JJG), slip op. at 2 (D. Minn. Sept.
10, 2013) (stating that “in civil matters, the burden of locating and paying for an interpreteris on the party requesting that service”); Sayed v. Proffitt, No. 09-cv-00869-MSK-KMT, slip
op. at 1 (D. Colo. Apr. 21, 2010) (holding the court was “without authority to order aninterpreter for the court proceedings in this case”); Fessehazion v. Hudson Grp., No. 08 Civ.
10665 (BSJ) (RLE), slip op. at 2 (S.D.N.Y. Aug. 21, 2009) (“Generally, pro se civil litigants
have no entitlement to an interpreter or translator.”); Loyola v. Potter, No. C 09-0575 PJH,
slip op. at 2 (N.D. Cal. Apr. 16, 2009) (“The court is not authorized to appoint interpreters
for litigants in civil cases, and, moreover, has no funds to pay for such a program.”). See also
Admin. Office of the U.S. Courts, Guide to Judiciary Policy vol. 5, ch. 2, § 260 (“Interpreter services needed to assist parties to civil proceedings not instituted by the United States,
both in court and out of court, are the responsibility of the parties to the action.”).
278. See, e.g., Gomez v. Myers, 627 F. Supp. 183, 186 (E.D. Tex. 1985) (althoughholding that complaint written in Spanish must be accepted, court could not authorize payment for translation). See also Pedraza v. Phoenix, No. 93 Civ. 2631 (MGC), slip op. at 1
(S.D.N.Y. May 9, 1994) (denying plaintiff’s request that defendants translate all motions
into Spanish: “while Fed. R. Civ. P. 43(f) [now 43(d)] grants the trial judge discretion toappoint an interpreter for trial, there is no federal rule that gives an indigent non-English
speaking civil plaintiff the right to a court-ordered translation of pre-trial motions”). Cf.
Fisch v. Rep. of Pol., No. 07 Civ. 7204 (LAP)(KNF), slip op. at 2 (S.D.N.Y. Oct. 23, 2007)(no right under § 1915(e)(1) for IFP plaintiff to have court pay for translating documents
needed for service of process into English).

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The Court Interpreters Act covers the “hearing impaired” as wellas “persons who speak only or primarily a language other than the
English language,” and the same limitations apply, with one exception: under § 1827(l), “the presiding judicial officer may appoint a
certified or otherwise qualified sign language interpreter to provide
services to a party, witness, or other participant in a judicial proceeding, whether or not the proceeding is instituted by the UnitedStates,” if the court determines “that such individual suffers from ahearing impairment.” The appointment is “subject to the availabilityof appropriated funds” under § 1827(l).279 The statute does not provide similar discretion to appoint a foreign language interpreter.
If the litigant makes it to the trial stage of the proceedings, Rule43(d) “provides for the appointment of an interpreter at trial, but
fails to extend that authority to pre-trial preparation.”280 Note, however, that although the court may provide compensation for an interpreter during trial, Rule 43(d) also allows the court to “tax the compensation as costs,” and a pro se litigant who loses could be held liable for the payment.281
In a prisoner civil rights suit, the court discussed whether failingto provide for the translation of documents could implicate a person’s
right of access to the courts. Because the pro se plaintiff appeared tohave a meritorious case, the court was able to appoint counsel who
would then be responsible for any necessary translation. Any attorney279. But cf. Bankruptcy Case Management Manual, supra note 101, at 748 (“28 U.S.C.
§ 1827(l) provides that a judge may provide a sign language interpreter in other judicial
proceedings, and Judicial Conference policy is that judges must do so. Judges must provide,at judiciary expense, sign language interpreters or other auxiliary aides and services to participants in federal court proceedings who are deaf, hearing-impaired, or have communication
disabilities and may provide these services to spectators when deemed appropriate. See Guide
to Judiciary Policy, vol. 5, ch. 2, § 255.”).
280. Gomez, 627 F. Supp. at 187.
281. See Fed. R. Civ. P. 43(d) (“The court may appoint an interpreter of its choosing;
fix reasonable compensation to be paid from funds provided by law or by one or more parties; and tax the compensation as costs.”). But cf. Taniguchi v. Kan Pac. Saian, Ltd., 132 S.
Ct. 1997, 2003–05 (2012) (holding that “compensation of interpreters” in 28 U.S.C.
§ 1920(6) is limited to the cost of oral translation and does not include the cost of documenttranslation).

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who has been appointed to represent someone proceeding in forma
pauperis “is expected to bear the costs of litigation, which presumably
includes the costs of interpretation and translation. . . . After completion of the litigation, however, an attorney who represents the prevailing party may be reimbursed for litigation costs and be awarded
reasonable attorney’s fees under 42 U.S.C. § 1988.”282

2. Alternatives to Certified Interpreters
Unfortunately, unless the district has instituted some kind of interpreter program, an individual judge is left with few options when acourt-appointed, certified interpreter is not available. He or she is left
to consider less formal arrangements, with one of the most frequent
options being a bilingual friend or family member of the litigant.283
Courts have the discretion to approve the use of such noncertified
translators.284
282. Gomez, 627 F. Supp. at 187 n.5. See also Fessehazion v. Hudson Grp., No. 08
Civ. 10665 (BSJ) (RLE), slip op. at 1 (S.D.N.Y. Aug 31, 2009) (on reconsideration of Aug.
21 order, appointing counsel to assist pro se civil plaintiff who had requested counsel and aninterpreter, finding that plaintiff has a meritorious claim and, “while the language issues
raised in her original application do not prevent Fessehazion from articulating her allegations, the Court finds that she is unable to investigate critical facts without assistance ofcounsel”); Castillo v. Cook Cty. Mail Room Dept., 990 F.2d 304, 307 (7th Cir. 1993) (Although defendant never requested counsel, “it would serve the interests of justice in this casefor Castillo to be represented by counsel. Castillo has presented a colorable claim. In addition, Castillo’s pro se filings indicate that he has some difficulty with the English language.
For this reason, he is not particularly capable of presenting his own case. Therefore, it would
have been advisable for the district court to have appointed counsel for Castillo.”).
283. Navigating Civil Cases Without an Interpreter, The Gideon: The Pro Se Litigation
Committee Newsletter, Fall 2013, at 3 [hereinafter The Gideon] (“If there is no objection,and the proceeding simply involves argument, or very limited testimony, many judges willallow a friend or family member to interpret after limited inquiry about translation ability.”).
284. See, e.g., S.D.N.Y. Manual, supra note 96, at 28 (“If you are unable to afford a certified court interpreter, the Judge has discretion to permit you to use a relative or friend toact as an informal interpreter during pretrial proceedings (but not at trial).”); E.D.N.Y.,
Individual Practices of Magistrate Judge Lois Bloom: 5. Interpreter Services, available athttps://www.nyed.uscourts.gov/pub/rules/LB-MLR.pdf (“Interpreter services are generally
not provided by the Court in civil cases. If a party speaks a language other than English, theparty must make his/her own arrangement to conduct his/her case in English. A party may
bring an English-speaking friend or family member to court conferences. However, persons

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As noted in the previous section, if the situation allows for appointed counsel, then counsel may be responsible for providing adequate interpretation of testimony and documents and have the potential to be reimbursed for those costs if they are the prevailing party.
One variation on this could be to first appoint counsel on a limited
basis, to give an initial assessment of the case while also assessing thelitigant’s English proficiency. (See discussion supra in Part II.D, “Explore the Possibility of Limited-Scope Representation.”) If the litigant
has a strong case, the attorney might be willing to take on the wholecase and the responsibility for providing an interpreter. If the case isweak, other avenues, including dismissal, could be explored thatmight reduce the need for an interpreter.
This concept could also be used for translators—a kind of “limited-scope interpretation” to provide an initial assessment for the
court and the litigant at modest cost. Along the same lines, if the litigant has some proficiency in English, consider finding an interpreterfor only certain aspects of the case, like hearings, document preparation, settlement discussions, or trial.
One suggestion is to ask for help.
If you know that [your court] has somebody who speaks, let’s say
Mandarin, you can ask your court interpreter, ‘is there ever a time
when somebody is being hired for a criminal case to do an arraignment,’ which takes five minutes, where you could piggyback because the interpreter will be paid for half a day.285

While this idea might not work for trials or lengthy hearings, it could
work for shorter proceedings.
The use of “student interpreters from a local university interpreter
certification program” has also been suggested.286 Courts could consider developing relationships with the language programs of nearby
colleges and universities to provide interpreting experience for upperlevel language students. The bankruptcy court in Los Angeles andacting as interpreters must translate exactly what is said; they may not speak for or advocate
for the party.”).
285. Court Web: Best Practices, supra note 34.
286. National Bench Guide, supra note 20, at 5-8.

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Woodland Hills, California, has had “a local public interest legal organization work with the interpreter’s program at a local college toprovide volunteer student interpreters to litigants. . . . The student
interpreters show up at a designated time and have the opportunity tointerpret in a real court setting, gaining valuable experience.”287
Some district courts participate in the Telephone Interpreting
Program (TIP), which “provides remote interpretation for court
proceedings where certified or highly qualified court interpreters are
not reasonably available locally. From 2001–2013, fifty-six U.S.
district courts in 102 locations used TIP for approximately 42,000
events, saving an estimated $14 million for the Judiciary in travel andcontract costs.”288 Unfortunately, TIP is limited to criminal cases. But
the experience could be valuable if courts want to investigate setting
up a similar program for civil cases. In some instances, “courts havearranged for a telephonic interpretation service through Attorney
Admissions Funds.”289
State courts often use remote interpreting in civil cases for litigants with limited proficiency in English. A survey by the National
Center for State Courts in 2012 showed that[t]he most commonly used technique is the speaker telephone, with
82% of respondents replying they utilize speakerphones for interpreting. Fifty-four percent (54%) of the respondents stated thatthey use integrated audio/video equipment. Twenty-eight percent(28%) replied that they use specialized telephone equipment thatallows simultaneous interpretation and confidential conversations
between a party and their attorney.290

287. The Gideon, supra note 283, at 3.
288. See Admin. Office of the U.S. Courts, Telephone Interpreting Program: Access toJustice for All, Judiciary News (Feb. 25, 2014), http://www.uscourts.gov/news/2014/02/25/
telephone-interpreting-program-access-justice-all.
289. See The Gideon, supra note 283, at 3.
290. See National Center for State Courts, A National Call to Action: Access to Justicefor Limited English Proficient Litigants: Creating Solutions to Language Barriers in State
Courts 4 (2013), available at http://www.ncsc.org/~/media/Files/PDF/Services%20and%
20Experts/Areas%20of%20expertise/Language%20Access/Call-to-Action.ashx.

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In sum, it appears there are no imminent easy solutions for theneed to provide interpreters for pro se litigants who cannot afford
their own. “Judges are increasingly presented with litigants or witnesses in civil cases who speak little or no English. . . . There are noclear rules on what a judge should do in these situations. . . . Most
judges find whatever solution best provides due process for all within
our limited funding and statutory authority.”291

I. Challenging Litigants
1. Mental or Emotional Issues
In the Western District of Pennsylvania, a man filed a claim against“Satan and his staff,” alleging “that Satan has on numerous occasions
caused plaintiff misery and unwarranted threats, against the will ofplaintiff, that Satan has placed deliberate obstacles in his path and has
caused plaintiff’s downfall.”292 Twenty years later in the Eastern District of Pennsylvania, another man filed a claim against God and Jesus in a complaint that “simply states ‘Treating Inhuman Sex.’”293
More recently, a woman in Nebraska filed suit against “Homosexuals” and seemingly sought to have the court declare that homosexuality is sinful.294

291. The Gideon, supra note 283, at 3. For an extensive overview and analysis of the
problem of providing adequate interpreter and translation services in the federal courts, andrecommendations for improvements, see Laura K. Abel, Language Access in the Federal
Courts, 61 Drake L. Rev. 593, 607–35 (2013).
292. United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282, 283 (W.D. Pa.
1971).
293. Jones v. God, Jesus, Others, Civ. A. No. 90-0742 (E.D. Pa. Mar. 25, 1991) (unpublished order).
294. Driskell v. Homosexuals, 533 B.R. 281, 282 (D. Neb. 2015). According to one
news story, the plaintiff “filed the handwritten complaint as an ‘Ambassador for Plaintiffs
God, and His, Son, Jesus Christ,’ asking ‘To be heard in the matter of homosexuality. Is
Homosexuality a sin, or not a sin.’” See Christopher Coble, Nebraska Woman’s Lawsuit
Against All Homosexuals Dismissed, Legally Weird: The FindLaw Curiosities Blog (May 7,2015), http://blogs.findlaw.com/legally_weird/2015/05/nebraska-womans-lawsuit-against-allhomosexuals-dismissed.html.

94II. Suggested Case-Management Practices for Civil Pro Se Litigation

In the first case, the court allowed the claim to be filed but denied
leave to proceed in forma pauperis. There is no record of the plaintiff
attempting to refile his claim. The other two cases were dismissed sua
sponte.295 The courts did not simply label the claims as frivolous or“fantastical” but also explained that there was no federal jurisdiction
over the claimed wrong and that it would be difficult, at best, tocomplete service of process on the putative defendants.296
While these cases may be at the extreme end of the pro se spectrum, federal judges are all too familiar with frivolous or delusional
claims of one variety or another. As outlined elsewhere in this publication, courts can lessen the impact of these suits on judicial resources
through the use of such things as prescreened complaints and sua
sponte dismissals, sanctions, and filing injunctions. Also, if a litigant
has what seems to be a legitimate claim, but not the mental capacity
to pursue it, a court can call for a mental evaluation under Rule 17(c)and perhaps appoint a guardian ad litem or attorney. See infra Part
III.D for a discussion of competency exams under Rule 17(c)(2).
Short of finding that a pro se litigant is mentally incompetent,
courts may face litigants who have mental or emotional issues but
may also have a potentially valid claim (or defense) that will allow thecase to move forward, at least past the sua sponte dismissal stage. Are
there actions that judges can take to help manage these cases andmove them toward resolution? Yes, but
judges should understand that there are no formulas for dealing
with litigants’ mental health problems. What works well with one
295. This is the only way these cases could be dismissed, since, as each court pointed
out, there were no named defendants on whom process could actually be served and therefore no defendants to file a motion to dismiss.
296. See Mayo, 54 F.R.D. at 283 (“[T]he Court has serious doubts that the complaint
reveals a cause of action upon which relief can be granted by the court. We question whether
plaintiff may obtain personal jurisdiction over the defendant in this judicial district.”);Driskell, 533 B.R. at 282 (“The Court may decide what is lawful, not what is sinful. . . . And
her attempt to sue a class of unidentified defendants raises a number of problems, the first ofwhich is that no defendant has been identified with sufficient specificity for service of process.”); Jones, Civ. A. No. 90-0742 (E.D. Pa. Mar. 25, 1991) (“[T]he complaint must be
dismissed because quite apart from the question of service on the principal defendants, there
is no factual basis for the exercise of this court’s subject matter jurisdiction.”).

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litigant may be completely ineffective or even harmful to anotherwith the same disorder. While medical professionals have clusteredmental health symptoms into patterns of diagnoses, there is no patient profile that predicts anyone’s interpersonal reactions in any
particular situation. The most important thing is to pay careful attention to each individual. Each case is different and requires thejudge’s specific attention and assessment.297

Some litigants “may be suffering from a delusion or hearing voices, ormay be in some other equally frightened state of mind,”298 and thecourt may have to attempt to reduce the litigant’s anxiety level before
he or she can fully participate in the case. One way to do that is bysimplifying the process, even more so than with the average pro se.
The more anxious the litigant, the more important is a case structure that is manageable and understandable for all. Breaking thecase into small steps, explaining each one, while repeating where
necessary, can be very helpful. The litigant is less likely to lose trackof the issue at hand, and the other parties will be better able to understand and address the anxious litigant’s position.299

Even if the litigant is able to understand court procedures, thesubstance of their claim might be outside of the court’s jurisdiction or
authority. “For example, they might ask the court to stop the government from implanting a microchip in their tooth; to restrain theirneighbor from coming through the wall at night while they sleep; or
to offer relief from the poison the phone company has put into their
air vents.”300 Rather than attempting to change their perception ofreality, one approach to try is sticking to the facts as presented andbeing honest with the litigant about what the court can and cannot
do in the situation:

297. National Bench Guide, supra note 20, at 11-6. See also generally infra Part I.A,
“Procedural Fairness.”
298. Id. at 11-7. See also Zorza, Toward Best Practices, supra note 51, at 38 (“For thosefor whom all the world is a frightening place, the courtroom is even more so, with its rituals,
power, and risk of sudden life-changing outcomes.”).
299. Zorza, Toward Best Practices, supra note 51, at 38.
300. National Bench Guide, supra note 20, at 11-7.

96II. Suggested Case-Management Practices for Civil Pro Se Litigation

The judge can say that the litigant’s story sounds unusual; that heor she has never heard of the government implanting chips before,
and so forth. This can be done without directly dismissing the person’s own sense of reality. There is no need to verbally label the
person as crazy or directly point out his or her mental illness. Point
out what evidence would be needed to get the relief requested—is
it possible to get an x-ray from a dentist showing the chip in thetooth? a photograph of the neighbor coming through the wall? oran analysis of the poison air from the vent? In asking for this proof,
the judge is merely asking what he or she would ask of anyone.
Once this is explained to litigants with mental illness, they generally accept this information as an indication that they are not being
singled out.301

Keep in mind, however, that “the litigant’s mental health may makeit hard for them to understand the limitations upon judicial power,”and some litigants may want more than a simple statement that the
court is unable to provide the remedy they seek. 302
In general, treating these litigants with respect and giving them
your full attention (as recommended supra in Part I for all pro se litigants) may prompt them to be more cooperative while helping themfeel like they have been treated fairly.
The litigants will be paying close attention to whether the judge istrying to simply ‘get rid’ of them. They have most likely had many
experiences with people being frightened by them and trying todismiss them as quickly as possible, and so are highly sensitive tothis sort of treatment.303
301. Id. at 11-8. See also Zorza, Toward Best Practices, supra note 51, at 38 (“Seriously
disturbed litigants may bring issues over which the court has no real world jurisdiction, suchas the assertion that the landlord is beaming radio waves into their teeth. . . . [B]eing explicit
about what the court can and cannot do, and being respectful of the litigant’s emotions, may
help at least to move forward.”).
302. Zorza, Toward Best Practices, supra note 51, at 38. As with other litigants who may
bring claims over which the court does not have jurisdiction, it may be helpful for the courtor the clerk’s office to offer information about other resources that may provide the relief
sought, such as state or local agencies, as well as the availability of mental health services.
303. National Bench Guide, supra note 20, at 11-8. See also Bloom, Pro Se Issues 2014,
supra note 15 (“It’s not just reading them the riot act, it’s letting them know you’re not

97Pro Se Case Management for Nonprisoner Civil Litigation

Respectful treatment applies to written orders and opinions as well.
Sarcasm, a form of ridicule, . . . has no place in opinion writing.
Judges should refrain from using sarcasm to attack litigants, whether directly or—by mocking their claims—indirectly. . . .
Judges must be careful to treat distraught litigants, including
mentally challenged or even delusional litigants, with respect. Delusional litigants are, regrettably, common enough that law-review articles have been written about them. The issue for the opinion
writer—recalling that how a judge writes counts as much ethicallyas what a judge decides—is how to resolve these claims. . . . A judge
should treat the court system and the litigants with dignity. In doing so, the judge will gain the readers’ trust and assure them that all
litigants will be treated equally.304

See also infra Part III.D, “Competency.”

2. Abusive Litigants
For a litigant who abuses the process—by repeated frivolous or vexatious filings, missing deadlines or court appearances, failing to comply with court orders, deliberately delaying the proceedings, or willfully failing to prosecute—it may come down to having to impose
sanctions, which can include fines, dismissal, or a filing injunction.
(For a discussion of the application of sanctions on vexatious or otherwise uncooperative litigants, see infra Part III.F, “Sanctions.”) Shortof imposing sanctions, what actions can a court take to manage a caseinvolving a vexatious, abusive, or otherwise uncooperative litigant?
In general, be firm but fair, with clear warnings of what is expected of the litigant and the potential consequences of failure to follow the court’s directives. Always make a record of any actions by alitigant that prompt warnings or sanctions. “You do not have to justcompletely against them, because they mostly assume that you are completely against them.
And so when you show that you’re not, that you’re going to give them the process, they
become more cooperative.”).
304. Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237, 280 (2008).

98II. Suggested Case-Management Practices for Civil Pro Se Litigationswallow and [accept misbehavior.] But you do have to make a recordand you must warn litigants.”305
If a litigant becomes combative, angry, or disrespectful during acourt proceeding, the same “firm but fair” principles can be applied.
Litigants do not really benefit from being allowed to go on endlessly, arguing with a judge. Certainly, giving litigants their “voice” in ahearing is central to any justice proceeding. However, when a litigant cannot refrain from repeating himself or herself, arguing withor even verbally abusing the judge or opposing party, the judge
must put a stop to it. . . .
Judges actually help litigants by setting limits on unacceptablebehavior. By keeping such behavior to a minimum, judges are reducing the chances that it might affect their decision-making process. Judges are responsible for maintaining a calm and comfortableprocess for everyone else in the courtroom. Being able to relax andsay “no” to an unhappy or angry litigant without becoming defensive or unkind demonstrates to the rest of the courtroom that thejudge is clearly in control of himself or herself, and of the situation.306

Making an appeal to a “litigant’s sense of fairness may be of help.
Similarly, expressing sympathy with the intensity of the emotion may
reduce the litigant’s alienation. Such statements may help the litigant
feel less anger at the judge as a person, thus helping the litigant focus
on the process as a whole.”307 Consider warning the litigant that “thecase cannot proceed at the expressed level of emotion. Generally, litigants want a decision and want to be able to move on.”308 The court

305. Bloom, Pro Se Issues 2014, supra note 15 (For example, if a litigant has missed adeposition, put out an order with an agreed-upon date and say “this is your deposition andyou shall appear timely, and if you fail to timely appear, I’m going to dismiss your case.”).
306. National Bench Guide, supra note 20, at 11-10 to 11-11 (“Litigants should not beallowed to escalate into angry or genuinely disrespectful behavior toward the judge or othercourtroom staff.”).
307. Zorza, Toward Best Practices, supra note 51, at 38.
308. Id.

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can also call for a recess, “a brief ‘cooling off’ period . . . to let the litigant get a grip and then participate fully in the process.”309
Some of the most difficult cases courts face
are those in which the litigant uses the case to make a politicalpoint about the legal system and the Constitution. The judge has
to maintain accessibility and the dignity of the courtroom andavoid abuse of the legal system. Limiting the focus of the proceedings to those appropriate to the particular court while maintaining
a respectful and nonconfrontational attitude to the litigant is thebest policy.310

If these measures still do not restore order, the court may resort tostronger measures such as
adjournment, which must, of course, not be allowed to prejudice
the nonresponsible party, or a range of sanctions for noncompliance, including the drawing of adverse inferences against the responsible party, particularly for behavior that threatens the integrityof the process, and summary contempt. Some judges use a threestep process of explaining the concept of contempt, the sanctions
authorized, and only then imposing the sanction (which can laterbe waived if the litigant then complies).311

In the end, if for whatever reason a litigant is determined to bedifficult, it may not be possible for the court to develop a mutuallyrespectful relationship. Until that happens, however, “it’s best to give
pro se parties a chance, and only deal with them peremptorily after
they’ve demonstrated an unwillingness to deal with the court responsibly.”312

309. Id. See also National Bench Guide, supra note 20, at 11-11 (“Do not hesitate totake a recess to stop or redirect unacceptable behavior. Sometimes a brief break is all ittakes.”).
310. Zorza, Toward Best Practices, supra note 51, at 39.
311. Id. at 38–39.
312. Outline accompanying Art of Judging (Video # 972-V/05, Federal Judicial Center
Dec. 2005), page 9 (available at http://fjconline.fjc.dcn/sites/default/files/2012/BankrVideo
03.pdf).

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III. Legal Issues Regarding Nonprisoner Pro
Se Litigants
Although it has long been established that pro se filings should beheld to “less stringent standards than formal pleadings drafted bylawyers,”313 there is not universal agreement on just how “less stringent” those standards should be. Some cases take a protective, flexible
approach: “[A]s a general rule, we are solicitous of the obstacles thatpro se litigants face, and while such litigants are not exempt fromprocedural rules, we hold pro se pleadings to less demanding standards than those drafted by lawyers and endeavor, within reasonable
limits, to guard against the loss of pro se claims due to technical defects.”314 This means that when a court “can reasonably read thepleadings to state a valid claim on which the plaintiff could prevail, it
should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”315
Other opinions are less sympathetic:
A defendant does not have a constitutional right to receive personal
instruction from the trial judge on courtroom procedure. Nor does
the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as amatter of course. . . . “The right of self-representation is not a li313. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
314. Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008). See also Clark v. Tansy, 13
F.3d 1407, 1412 (10th Cir. 1993) (“The rights of pro se litigants must be carefully protected
where highly technical legal requirements are involved, especially when strict enforcement of
those requirements would result in a loss of the opportunity to prosecute a claim on the
merits.”). Cf. Bankruptcy Case Management Manual, supra note 101, at 747 (“[C]ourts
generally may ensure that the claims of pro se parties are given adequate consideration, evenif such parties fail to comply with technical procedural requirements and formalities.”).
315. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See also Higgs v. Att’y
Gen. of the United States, 655 F.3d 333, 339–40 (3d Cir. 2011) (While “the obligation toliberally construe a pro se litigant’s pleadings is well-established, . . . [t]here is no questionthat pro se pleadings present particular challenges.”).

101

Pro Se Case Management for Nonprisoner Civil Litigationcense to abuse the dignity of the courtroom. Neither is it a license
not to comply with relevant rules of procedural and substantive
law.”316

Although there may be a lack of consensus on the precise parameters of the leniency to be extended to pro se litigants, district courts inpractice have wide discretion when accounting for a litigant’s pro se
status. For a start, the rules of civil procedure and evidence often contain built-in flexibility, and their very purpose militates against overly
strict adherence.317 The first rule of civil procedure states that therules “should be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”318 Similarly, the rules of evidence “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”319
The following sections examine the extent of a district court’s authority and discretion under case law, several of the key rules of civil

316. McKaskle v. Wiggins, 465 U.S. 168, 183–84 (1984). See also McNeil v. UnitedStates, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceedwithout counsel.”).
317. See Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966) (“The basic purpose of the Federal Rules is to administer justice through fair trials, not through summary
dismissals as necessary as they may be on occasion. These rules were designed in large part toget away from some of the old procedural booby traps which common-law pleaders could set
to prevent unsophisticated litigants from ever having their day in court. If rules of procedure
work as they should in an honest and fair judicial system, they not only permit, but should asnearly as possible guarantee that bona fide complaints be carried to an adjudication on the
merits.”).
318. Fed. R. Civ. P. 1. See also Conley v. Gibson, 355 U.S. 41, 48 (1957) (“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome and accept the principle that the purpose of pleading is tofacilitate a proper decision on the merits.”).
319. Fed. R. Evid. 102. See also Hormel v. Helvering, 312 U.S. 552, 557 (1941)(“Rules of practice and procedure are devised to promote the ends of justice, not to defeat
them. . . . Orderly rules of procedure do not require sacrifice of the rules of fundamental
justice.”).

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procedure and evidence, and the inherent authority of judges to determine practices and procedures in the courtroom.

A. Pleadings or Complaint
1. General Requirements
Under Rule 8(a)(2), a claim for relief must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.”
Until recently, all pleadings were to be construed liberally, following
the Supreme Court’s dictate in Conley v. Gibson that “a complaint
should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support ofhis claim which would entitle him to relief.”320 This part of Gibson,
however, was overruled in Bell Atlantic Corp. v. Twombly, which announced a stricter “plausibility” standard that requires “enough facts
to state a claim to relief that is plausible on its face.”321 Although
Twombly’s holding seemed to be limited to antitrust cases, two years
later in Ashcroft v. Iqbal the Court clarified that its holding set “thepleading standard for ‘all civil actions’” covered by Rule 8(a)(2).322
The decisions in Twombly and Iqbal changed the standard that all
pleadings must meet. Both cases involved represented parties, however, and did not address the effect of the decisions on the constructionof pro se complaints, which the Court had long held “to less stringent
standards than formal pleadings drafted by lawyers.”323 Just two
weeks after Twombly, the Court reiterated that, even under the newstandard, pro se pleadings are to be treated more leniently. “A document filed pro se is ‘to be liberally construed,’. . . and ‘a pro se com-

320. 355 U.S. 41, 45–46 (1957).
321. 550 U.S. 544, 570 (2007).
322. 556 U.S. 662, 684 (2009). “Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 679.
323. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

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plaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’”324
The appellate courts have also found that, although pro se pleadings must meet the plausibility standard set forth in Twombly and
Iqbal, they should continue to receive more lenient treatment. The
Ninth Circuit, for example, held that
Iqbal incorporated the Twombly pleading standard and Twombly
did not alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when evaluating them under
Iqbal. While the standard is higher, our “obligation” remains,“where the petitioner is pro se, particularly in civil rights cases, toconstrue the pleadings liberally and to afford the petitioner the
benefit of any doubt.”325

Even with a more liberal reading, a pro se complaint must still set
forth a valid claim. The Second Circuit dismissed a pleading because
the statute cited by the plaintiff did not apply to the claim as allegedin the pleadings.
To survive a motion to dismiss, the complaint must plead sufficient
facts to make out a plausible claim to relief. . . . When, as here, thecomplaint is filed by a pro se plaintiff, we construe the complaint
liberally, interpreting it “to raise the strongest arguments that [it]suggest[s].” . . . Caro’s assertion that he would plead a tortious in-

324. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). See also Fed. Express
Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (acknowledging, in nonprisoner case, that“pro se litigants are held to a lesser pleading standard than other parties”).
325. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). See also Luevano v. Wal-MartStores, Inc., 722 F.3d 1014, 1027–28 (7th Cir. 2013) (“the pleading standards for pro seplaintiffs are considerably relaxed, . . . even in the wake of [Twombly and Iqbal]”; also notingthat even after Iqbal “the plaintiff need only ‘give enough details about the subject-matter ofthe case to present a story that holds together’”) (citations omitted); Bridge v. Ocwen Fed.
Bank, FSB, 681 F.3d 355, 358 (6th Cir. 2012) (after citing Twombly, stating, “We are evermindful that pro se complaints are liberally construed and are held to less stringent standards
than the formal pleadings prepared by attorneys.”); Huertas v. Galaxy Asset Mgmt., 641
F.3d 28, 32 (3d Cir. 2011) (“[W]e must construe Huertas’s complaint liberally because he isproceeding pro se.” (citing Erickson)).

104III. Legal Issues Regarding Nonprisoner Pro Se Litigants

tent is simply a recitation of the missing element in his claim—an
exercise insufficient to rescue the complaint from its deficiencies.326

The Supreme Court has emphasized that Twombly and Iqbal“concern the factual allegations a complaint must contain to survive a
motion to dismiss” and that neither those cases nor Rule 8(a)(2)“countenance dismissal of a complaint for imperfect statement of thelegal theory supporting the claim asserted. . . . In particular, noheightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke [42 U.S.C.] § 1983 expressly
in order to state a claim.”327

2. Opportunity to Amend Pleadings
Following amendments in 2009, Federal Rule of Civil Procedure
15(a)(1) allows one amendment of the pleading as a matter of course
within twenty-one days of serving it or after service of a responsive
pleading or motion under Rule 12(b), (e), or (f). In all other cases,
Rule 15(a)(2) allows a party to amend a pleading only with the opposing party’s consent in writing or the court’s leave, but the court“should freely give leave when justice so requires.” As the Supreme
Court firmly stated over fifty years ago,
this mandate is to be heeded. . . . If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief,
he ought to be afforded an opportunity to test his claim on the326. Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010) (citations omitted). See also
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009) (“A pro se complaint, such as Atherton’s, ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’ . . . But even a pro se complainant must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct.’” (citing Erickson and
Iqbal)); Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (“[R]egardlessof whether the plaintiff is proceeding pro se or is represented by counsel, ‘conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.’”) (citations omitted).
327. Johnson v. City of Shelby, 135 S. Ct. 346, 346–47 (2014) (per curiam) (petitioners had “stated simply, concisely, and directly . . . the factual basis for their complaint [and],on remand, should be accorded an opportunity to add to their complaint a citation to§ 1983”).

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merits. In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leavesought should, as the rules require, be “freely given.”328

The relaxed standard for amending pleadings “applies with particular force to pro se litigants. ‘[A] pro se complaint is to be read liberally,’ and should not be dismissed without granting leave to amend
at least once when such a reading ‘gives any indication that a valid
claim might be stated.’”329
Some courts have said that a pro se plaintiff should be given somenotice of why the complaint is deficient:
Pro se plaintiffs are often unfamiliar with the formalities of pleading
requirements. . . . [W]e think that the district court should nothave dismissed Platsky’s complaint without affording him leave toreplead. . . . Instead of simply dismissing the complaints for naming federal agencies as the defendants [instead of individual employees as required], it would have been appropriate for the district
328. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Becker v. Univ. of Neb. at
Omaha, 191 F.3d 904, 908 (8th Cir. 1999) (“[A] motion to amend should be denied on the
merits ‘only if it asserts clearly frivolous claims or defenses.’ . . . Likelihood of success on the
new claim or defenses is not a consideration for denying leave to amend unless the claim isclearly frivolous.”).
329. Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (citation omitted). See
also Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (“[E]ven
though pro se parties generally should be given leave to amend, it is appropriate to dismiss
without allowing amendment ‘where it is obvious that the plaintiff cannot prevail on thefacts [s]he has alleged and it would be futile to give [her] an opportunity to amend.’”) (citation omitted); Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (“[D]istrict courts should
not dismiss pro se complaints pursuant to Rule 12(b)(6) without first providing the plaintiff
an opportunity to amend, unless it is obvious from the record that the plaintiff has pled hisbest case.”). Cf. Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 281 (1st Cir. 2013)(error to deny amendment by pro se plaintiff, distinguishing case from “one where a plaintiff
has filed several fatally flawed complaints and nevertheless sought amendment, without explaining which new allegations she would bring or how any new facts could save prior complaints already deemed deficient”; allowing amendment here “is in accord with Fed. R. Civ.
P. 8(e)’s mandate that ‘[p]leadings . . . be construed as to do justice,’ and with Fed. R. Civ.
P. 15(a), which ‘reflects a liberal amendment policy’”) (citation omitted).

106III. Legal Issues Regarding Nonprisoner Pro Se Litigants

judge to explain the correct form to the pro se plaintiff so that
Platsky could have amended his pleadings accordingly.330

In remanding the dismissal of a complaint where the district court
did not allow the pro se plaintiff leave to amend or warn him of the“heightened pleading standard applicable to Bivens actions,” the D.C.
Circuit stated that pro se litigants are to be given “more latitude thanlitigants represented by counsel to correct defects in service of process
and pleadings,” and although a court does not “need to provide detailed guidance to pro se litigants[, it] . . . should supply minimal notice of the consequences of not complying with procedural rules . . .
[and] at least minimal notice of our pleading requirements.”331
There has been some question whether the right to amend pleadings once under Rule 15(a) applies to in forma pauperis (IFP) cases
under 28 U.S.C. § 1915(e)(2), which requires, inter alia, dismissal of
any case that is “(i) frivolous or malicious; [or] (ii) fails to state aclaim on which relief may be granted.” The Second Circuit specifically held that a nonprisoner IFP plaintiff retained the right to amend
under Rule 15(a):Although the language of § 1915 is mandatory, stating that “thecourt shall dismiss the case” in the enumerated circumstances, weconclude that a pro se plaintiff who is proceeding in forma pauperis
should be afforded the same opportunity as a pro se fee-paid plaintiff to amend his complaint prior to its dismissal for failure to state
330. Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991). See also Merritt v. Countrywide
Fin. Corp., 583 F. App’x 662, 664 (9th Cir. 2014) (“‘Unless it is absolutely clear that no
amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.’ . . . In its notice,
the district court need not provide a paragraph-by-paragraph analysis.”) (internal citation
omitted).
331. Moore v. Agency for Int’l Dev., 994 F.2d 874, 876–78 (D.C. Cir. 1993). Cf.
Felder v. Del. Cty. Office of Servs. for the Aging, No. 08-4182, slip op. at 3 (E.D. Pa. July28, 2009) (“It would be unfair to allow a Plaintiff to file a pro se Complaint on the standard
form [provided by the district court], which provides minimal room for elaboration on thefactual issues, and then dismiss Plaintiff’s Complaint under Rule 8 for failure to provide
more factual allegations. This is particularly true here, where Plaintiff has provided a numberof supporting documents from which this Court, and the Office of Aging, can discern thegist of Plaintiff’s employment discrimination claim as well as the individuals involved.”).

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Pro Se Case Management for Nonprisoner Civil Litigationa claim, unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed instating a claim.332

The Seventh Circuit agreed, holding that courts “must allow IFP
plaintiffs leave to amend at least once in all circumstances in whichsuch leave would be granted to fee-paying plaintiffs under Rule15(a). . . . Dismissals under section 1915(e) should be treated likedismissals under Rule 12(b)(6).”333

3. Repleading
As an alternative to the motion-to-dismiss/leave-to-amend cycle, theopposing party can file a motion under Rule 12(e) “for a more definite statement of a pleading . . . which is so vague or ambiguous thatthe party cannot reasonably prepare a response.” Also, a motion to
strike “any redundant, immaterial, impertinent, or scandalous matter” may be filed by the opposing party, or the court may strike suchmaterial on its own under Rule 12(f). Either method could be a useful tool in getting a pro se complaint to conform to the pleading requirements of Rule 8.334 However, if the opposing party is able torespond to an imperfect pleading, the motion should be denied.335
332. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).
333. Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1023–24 (7th Cir. 2013).
334. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“If a pleading
fails to specify the allegations in a manner that provides sufficient notice, a defendant canmove for a more definite statement under Rule 12(e) before responding.”); McHenry v.
Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (where plaintiffs did not file “the ‘short andplain statement’ which Rule 8 obligated plaintiffs to submit,” court had “discretion, in response to a motion for more definite statement under Federal Rule of Civil Procedure 12(e),[to] require such detail as may be appropriate in the particular case, and may dismiss thecomplaint if his order is violated”).
335. See Hubbs v. Cty. of San Bernardino, 538 F. Supp. 2d 1254, 1262 (C.D. Cal.
2008) (“[A] motion for a more definite statement under Rule 12(e) should be granted only
where the complaint is so indefinite that the defendants cannot ascertain the nature of theclaims being asserted and ‘literally cannot frame a responsive pleading’”; here, although it
contains inconsistent allegations and is not in the proper form, “plaintiff’s pro se complaint
does state its claims, and defendants’ motion to dismiss ‘amply demonstrate[s] that [defendants] do understand the issues presented by the First Amended Complaint.’ . . . Accordingly,
defendants’ motion for a more definite statement under Rule 12(e) should be denied.”). Cf.

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The court also has the discretion to convert a motion to dismiss
under Rule 12(b)(6) into a motion for a more definite statement
when it may help determine whether the plaintiff has alleged sufficient facts to state a claim. For example, in a case where a pro seplaintiff “may have intended to assert a contract claim of some sort”
but the complaint was “utterly devoid of facts,” the district court was“unable to discern the nature of Plaintiff’s claim and the relief he[was] seeking. Therefore, the Court will . . . , pursuant to Federal
Rule of Civil Procedure 12(e) and its inherent authority, convert [defendant’s] Motion to Dismiss pursuant to Rule 12(b)(6) into a motion for a more definite statement pursuant to Rule 12(e).”336
The motion for a more definite statement may be particularly
useful when the plaintiff has filed a plausible claim and alleged somefacts but has omitted one or more details that are required for relief.
For instance, a plaintiff filed a defamation claim and adequately alleged what the defendant did but failed to allege facts to establish thatthe defendant acted with actual malice, as required by statute. The
defendant moved to dismiss the claim. Under the circumstances,
however, the court held that “outright dismissal” of the complaint
would be “a drastic outcome, disproportionate to the defect in Dickens’s complaint and therefore unjust. Thus, on its own motion andpursuant to Fed. R. Civ. P. 12(e), the Court grants Dickens leave to
file a more definite statement . . . to conform his allegation of actual
malice to the [statute].”337
Omni Innovations, LLC v. Impulse Mktg. Grp., Inc., No. C06-1469MJP, slip op. at 4
(W.D. Wash. July 18, 2007) (“A vague complaint that survives a 12(b)(6) motion can still
be subject to discretionary use of Fed. R. Civ. P. 12(e). . . . This is appropriate when a complaint is sufficiently intelligible to satisfy pleading requirements but is so vague or ambiguousthat the other party cannot respond to it.”).
336. Hall v. Tyco Int’l Ltd., 223 F.R.D. 219, 257 (M.D.N.C. 2004) (citing Fikes v.
City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996) (holding that a district court has
the power to sua sponte order a more definite statement to narrow the issues).
337. Dickens v. Werner Enter., Inc., No. 1:12CV76, slip op. at 5 (N.D. W. Va. Oct.
10, 2012). See also Gadiel v. Kennicott Ridge Assocs., No. 85 C 10389, slip op. at 3 n.4(N.D. Ill. Nov. 12, 1986) (“Certain lack of detail may not be a sufficient ground for a motion to dismiss; however, such deficiencies may provide an adequate basis for a motion for amore definite statement.”).

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Although not in cases involving pro se plaintiffs, the Eleventh
Circuit has concluded that, while Rule 12(e) states that a “party” maymove for a more definite statement, district courts have the inherent
power to order a litigant to replead and can provide specific instructions on how to amend the pleading. In a case involving “a perfect
example of ‘shotgun’ pleading, . . . in that it is virtually impossible toknow which allegations of fact are intended to support which claim(s)for relief,” and the defendants did not move for a more definite
statement, the district court, “acting sua sponte, should have struck
the plaintiff’s complaint, and the defendants’ answer, and instructed
plaintiff’s counsel to file a more definite statement.”338 A few othercourts have begun to apply the principle that courts have inherent
authority to order repleading.339
The cases just cited involved represented parties, but the principlethat courts have authority to order a party to replead sua sponte provides a potentially useful tool in pro se cases. At least one district
court has used it for a pro se plaintiff. On the defendants’ motion to338. Anderson v. Dist. Bd. of Tr. of Cent. Fla. Cmty. Col., 77 F.3d 364, 366–68 &n.5 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely,issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). See also Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001) (“[I]f, in the face ofa shotgun complaint, the defendant does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, must intervene sua sponte andorder a repleader.”).
339. See, e.g., Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 833 (N.D. Tex.
2003) (citing Eleventh Circuit case in using court’s “inherent authority to demand repleader
sua sponte” to order plaintiff to file amended complaint rather than dismissing complaint or
denying summary judgment); Kung v. Ohio Dept. of Ins., No. 2:05-CV-1048, slip op. at 2
(S.D. Ohio Aug. 10, 2006) (where complaint was so unclear that court would have to “hazard a guess” in deciding defendant’s motion to dismiss, court “sua sponte orders Plaintiffs tofile . . . a more definite statement of its causes of action, clarifying whether federal or state
law is involved and the specific statutory or common law causes of action asserted in each of
the five counts,” citing Fikes); Serdlow v. City of Portland, No. Civ. 00-580-HA, slip op. at
3 (D. Or. Aug. 17, 2001) (same, ordering plaintiff to file second amended complaint); In re
Premium Motor Cars, Inc., 404 B.R. 128, 135 (Bankr. W.D. Pa. 2009) (as part of denying
defendant’s summary judgment motion where facts were somewhat uncertain, court cited
Taylor v. City of Cleveland, No. 1:05cv2983, slip op. at 1 (N.D. Ohio July 13, 2006), in
ordering plaintiffs “to re-plead their case allowing them a final opportunity to ‘get it right’”).

110III. Legal Issues Regarding Nonprisoner Pro Se Litigants

strike the complaint, the court agreed that “significant portions of theComplaint [were] improper and extraneous, [but] enough of theComplaint [satisfied] the federal pleading requirements such that theComplaint [could not] be stricken in its entirety.” Although the defendants did not move for a more definite statement under Rule12(e), “the Court may, sua sponte, order Plaintiff to file an amended
complaint that clarifies his claims.”340 Some circuits have approved
the practice in pro se prisoner cases.341

B. Summary Judgment
1. Providing Notice of Rule 56 Requirements
Currently, half of the circuits require that a pro se litigant facing asummary judgment motion receive notice of the procedures for opposing summary judgment and the consequences of failing to respond.342 Two other circuits have specifically limited the notice re340. Taylor, slip op. at 1 (citing Byrne for authority to order amendment).
341. See, e.g., Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (in prisoner pro secase, “even where a violation of Rule 10(b) is not harmless, dismissal is not typically theappropriate course of action. Once a defendant has been served with a complaint that is
defective in this way, it should be met with a motion for a more definite statement under
Rule 12(e) or a motion to strike under Rule 12(f), rather than a motion to dismiss under
Rule 12(b)”); Alston v. Parker, 363 F.3d 229, 234 n.7 (3d Cir. 2004) (in a prisoner civil
case, noting alternatives to dismissing a complaint: “the District Court on its own initiative,
may have sought a more definite statement to resolve any ambiguity or vagueness. Fed. R.
Civ. P. 12(e). Matters in the complaint that were deemed immaterial or impertinent could
have been stricken. Fed. R. Civ. P. 12(f).”). Cf. Spears v. McCotter, 766 F.2d 179, 181 (5thCir. 1985) (“For a number of years the courts have used questionnaires to assist trial judges
to bring into focus the factual and legal bases of prisoners’ claims. We have referred to suchquestionnaires as being ‘in the nature of a motion for more definite statement’ under Fed. R.
Civ. P. 12(e). . . . The prisoners’ answers to such questionnaires elaborate on the allegations
contained in their complaints under Fed. R. Civ. P. 15(a), and do not constitute an independent pleading. . . . This practice of having the prisoner state with more definiteness theform and substance of his claim occurs before service of process is required.”) (citations omitted), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319, 324 (1989).
342. See Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (court “had an obligation to
make certain that the Ruotolos were aware of and understood the consequences to them of
their failure to comply with the Local Rules” regarding summary judgment); Timms v.
Frank, 953 F.2d 281, 285 (7th Cir. 1992) (“[A]ll pro se litigants, not just prisoners, are enti-

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quirement to prisoner pro ses.343 Some districts have codified the required notice in their local rules.344 The Fifth and Eighth Circuits
tled to notice of the consequences of failing to respond to a summary judgment motion. . . .
[T]his notice should include both the text of Rule 56(e) and a short and plain statement in
ordinary English that any factual assertion in the movant’s affidavits will be taken as true by
the district court unless the non-movant contradicts the movant with counter-affidavits orother documentary evidence.”) (citation omitted); Jaxon v. Circle K Corp., 773 F.2d 1138,
1140 (10th Cir. 1985) (pro se plaintiffs should receive “notice of the requirements and reasonable opportunity to submit counteraffidavits”); Griffith v. Wainwright, 772 F.2d 822,
825 (11th Cir. 1985) (“an adverse party must be given express, ten-day notice of the summary judgment rules, of his right to file affidavits or other material in opposition to the motion, and of the consequences of default”); Roseboro v. Garrison, 528 F.2d 309, 310 (4thCir. 1975) (pro se plaintiff is entitled to the “reasonable safeguard” of notice); Hudson v.
Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (“as a bare minimum” pro se plaintiff shouldhave received “fair notice of the requirements of the summary judgment rule”).
343. See United States v. Ninety-Three Firearms, 330 F.3d 414, 427–28 (6th Cir.
2003) (“[T]his court clearly has held that no such rule providing ‘special assistance’ exists
with respect to nonprisoner pro se litigants.”); Jacobsen v. Filler, 790 F.2d 1362, 1365–66(9th Cir. 1986) (refusing to extend requirement of notice to to nonprisoner pro ses). But cf.
Fonseca v. Sysco Food Serv. of Ariz., 374 F.3d 840, 846 (9th Cir. 2004) (reversing summary
judgment for defendant in civil case, citing prisoner case for proposition that district court
should have provided this pro se plaintiff with notice of complex procedural issues involvedin summary judgment).
344. See, e.g., S.D. & E.D.N.Y. LCR 56.2. The notice, which is supposed to be filedwith the motion by the moving party, warns:
THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSEDWITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filingsworn affidavits and other papers as required by Rule 56(e) of the Federal Rules of Civil Procedure and by Local Civil Rule 56.1. An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. The full text of Rule 56 of theFederal Rules of Civil Procedure and Local Civil Rule 56.1 is attached.
In short, Rule 56 provides that you may NOT oppose summary judgment simply by
relying upon the allegations in your complaint. Rather, you must submit evidence, such as
witness statements or documents, countering the facts asserted by the defendant and raisingmaterial issues of fact for trial. Any witness statements must be in the form of affidavits. You
may submit your own affidavit and/or the affidavits of others. You may submit affidavits thatwere prepared specifically in response to defendant’s motion for summary judgment.
If you do not respond to the motion for summary judgment on time with affidavits or
documentary evidence contradicting the material facts asserted by the defendant, the court
may accept defendant’s factual assertions as true. Judgment may then be entered in defendant’s favor without a trial.

See also E.D. Wis. Civ. R. 56 (requiring moving party to include in a motion against a
pro se litigant “a short and plain statement that any factual assertion in the movant’s affida-112

III. Legal Issues Regarding Nonprisoner Pro Se Litigants

have declined to require notice for any pro se litigants,345 and the other circuits have not ruled on the issue.
The case law on whether to provide notice about summary judgment procedure to pro se litigants thus focuses on whether such notice is required. There do not seem to be any cases holding that a
judge cannot, as a matter of discretion, provide some form of notice.
Each individual judge has the discretion to provide notice when none
is required, or perhaps go beyond the minimum notice that may berequired in his or her circuit. If the district has a pro se manual, thatis an ideal place to provide notice of the requirements for responding
to summary judgment motions and a warning about the consequences of a failure to properly respond.346
In the circuits that do require it, the notice need not come fromthe court. “There is no requirement that the district court affirmatively advise the pro se litigant of the nature and consequences of a summary judgment motion if the pro se litigant has otherwise been adequately notified or is already aware of such consequences.”347 Somecircuits have stated thatvit, declaration, or other admissible documentary evidence will be accepted by the Court as
being true unless the party unrepresented by counsel submits the party’s own affidavit, declaration, or other admissible documentary evidence contradicting the factual assertion.”).
345. Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (district court is not required toprovide “particularized instructions” to pro se litigant responding to summary judgment
motion); Martin v. Harrison Cty. Jail, 975 F.2d 192, 193 (5th Cir. 1992) (“particularized
additional notice of the potential consequences of a summary judgment motion and the rightto submit opposing affidavits need not be afforded a pro se litigant. The notice afforded by
the Rules of Civil Procedure and the local rules are, in our view, sufficient.”). See also Stingley v. Den-Mar Inc., 347 F. App’x 14, 20 (5th Cir. 2009) (applying Martin to nonprisoner
pro se plaintiff); Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002)(applying Beck to nonprisoner pro se plaintiff).
346. See also Hailey L. Scoville & Richard A. Bales, Pro Se Litigants and Summary
Judgment, 214 F.R.D. 231, 233–34 (2003) (recommending that “litigants should receive an
extensive warning when they choose to proceed pro se, coupled with a packet explaining thebasics of court procedure including summary judgment. . . . Because the packet would be
prepared ahead of time and would not be individually tailored to each litigant, providing thepacket would maintain judicial neutrality and, after an initial investment of time preparing
the packet, spare judges the burden of providing individualized instruction.”).
347. M.B. v. Reish, 119 F.3d 230, 232 (2d Cir. 1997).

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the moving party should routinely provide a pro se party with notice of the requirements of Rule 56, and of the consequences ofnoncompliance therewith, contemporaneous with the serving of the
motion for summary judgment on the pro se litigant. In the absenceof such action, the district court should promptly provide the pro sewith such required notice.348

2. Providing Notice Before Converting Motion toDismiss into Summary Judgment Motion
Some of the same circuits that require giving a nonprisoner pro selitigant notice of summary judgment procedures and the consequences of failing to respond have reached similar holdings when a Rule12(b)(6) or (c) motion to dismiss is converted into a Rule 56 motion
for summary judgment under Rule 12(d).
The term “reasonable opportunity” in Rule 12(b) [now Rule 12(d)349]
embraces the requirement that the court give some notice to all parties that it is treating the 12(b)(6) motion as one for summary
judgment. . . . Such notice must be reasonably calculated to informthe nonmoving party of the conversion, and of his right to filecountering affidavits or to undertake reasonable discovery in an effort to produce a triable issue of fact. . . . In addition, the . . . noticemust be sufficiently clear to be understood by a pro se litigant andcalculated to apprise him of what is required under Rule 56.350

348. Irby v. N.Y.C. Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001) (summary judgment was appropriate after pro se plaintiff was adequately, though belatedly, warned by opposing party of requirements of summary judgment). See also Timms v. Frank, 953 F.2d
281, 285 (7th Cir. 1992) (“Counsel should include this notice with the summary judgment
motion, but if they fail to do so this responsibility will fall on the district court.”).
349. See Fed. R. Civ. P. 12(d) (“All parties must be given a reasonable opportunity topresent all the material that is pertinent to the motion.”).
350. Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (Although Davis was aprisoner case, the opinion did not limit itself to prisoner pro ses and has been cited in nonprisoner cases, e.g., Dolgaleva v. Va. Beach City Pub. Sch., 364 F. App’x 820, 825 (4th Cir.
2010)). See also Neal v. Kelly, 963 F.2d 453, 456–57 (D.C. Cir. 1990) (pro se litigant must
be informed of consequences of failure to respond and need to file affidavits to counter movant’s claims; although a prisoner case, Neal has been used for nonprisoner litigation); Farred
v. Hicks, 915 F.2d 1530, 1534 (11th Cir. 1990) (if district court converts Rule 12(b)(6)114

III. Legal Issues Regarding Nonprisoner Pro Se Litigants

See supra Part II.F, “Summary Judgment Warning and Standards,”
for further discussion of district court discretion in handling summary judgment motions against pro se litigants.

C. Default Judgments 351
1. Default Generally Disfavored
A default judgment may be appropriate “when a litigant is confronted
by an obstructionist adversary and plays a constructive role in maintaining the orderly and efficient administration of justice.’ . . . Nonetheless, it is a ‘drastic’ sanction . . . that runs contrary to the goals of
resolving cases on the merits and avoiding ‘harsh or unfair results.’”352

motion into Rule 56(c) motion, it “is required to give ‘clear notice of the need to file affidavits or other responsive materials and of the consequences of default’” to pro se litigant) (citation omitted); Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983) (after conversion, district court “did not give the type of unequivocal notice to which a pro se litigant isentitled . . . [or] apprise Menzies of the steps she should have taken to submit rebutting evidence”); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982) (“It goes without saying thatthe rule [for summary judgment motions] applies with equal force when affidavits are submitted in support of a motion to dismiss under Rule 12(b)(6).”); Youssef v. Dep’t of Healthand Senior Serv., 423 F. App’x 221, 224 (3d Cir. 2011) (court must give pro se plaintiff“notice of its intent to convert the motion to dismiss into a motion for summary judgment,
and an opportunity to submit an affidavit or declaration contesting the facts and legal conclusions set forth in [defendants’] certification”). Cf. Mala v. Crown Bay Marina, 704 F.3d
239, 245 (3d Cir. 2013) (dicta: “when a court acts on its own in a way that significantly
alters a pro se litigant’s rights—for example, by converting one type of motion into a different type of motion—the court should inform the pro se party of the legal consequences”).
351. Although there are differences between an “entry of default” and a “default judgment” and the legal requirements for granting or opposing each one, the focus of this section
is on the treatment of pro se litigants rather than the specifics of default.
352. Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 54 (1st Cir.
2009) (citations omitted). See also Wright et al., supra note 207, § 2681 at 10 (“Under modern procedure, defaults are not favored by the law and any doubts usually will be resolved infavor of the defaulting party. The reason for this attitude is that contemporary procedural
philosophy encourages trial on the merits.”) (citations omitted). Cf. E.F. Hutton & Co., Inc.
v. Moffatt, 460 F.2d 284, 285 (5th Cir. 1972) (“The entry of judgment by default is a drastic remedy and should be resorted to only in extreme situations. . . . It is only appropriate
where there has been a clear record of delay or contumacious conduct.”).

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Furthermore, because default judgments “are generally disfavored,” and should be “reserved for rare occasions,” any doubt “as towhether a default should be granted or vacated . . . should be resolvedin favor of the defaulting party. In other words, ‘good cause’ and thecriteria of the Rule 60(b) set aside should be construed generously.”353

2. Pro Se Litigants
Defaults are even less favored for pro se litigants, whose “fail[ure] toplead or otherwise defend” under Federal Rule of Civil Procedure55(a) is often due to their lack of knowledge or experience rather thandeliberate obstruction. As the Second Circuit noted,
concerns regarding the protection of a litigant’s rights are heightened when the party held in default appears pro se. A party appearing without counsel is afforded extra leeway in meeting the procedural rules governing litigation, and trial judges must make someeffort to protect a party so appearing from waiving a right to beheard because of his or her lack of legal knowledge. . . . Hence, as a
general rule a district court should grant a default judgment sparingly and grant leave to set aside the entry of default freely when
the defaulting party is appearing pro se.354
353. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). See also Fed. R.
Civ. P. 60(b) (“On motion and just terms, the court may relieve a party . . . from a final
judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise,or excusable neglect; . . . (6) any other reason that justifies relief.”).
354. Id. (error for district court to not consider, among other things, defendant’s “status
as a pro se litigant” in determining whether to set aside default). See also United States v.
Mraz, 274 F. Supp. 2d 750, 756 (D. Md. 2003) (denying government’s motion for default
judgment where defendant had filed answer three weeks after it was due, in light of defendant’s pro se status and strong preference for resolving cases on their merits); United States v.
Thornton, 113 F.R.D. 499, 502 (D. Conn. 1986) (setting aside entry of default because “inthis case there is no basis for a finding that the default was willful”—defendants unsuccessfully attempted to retain counsel, then “appeared pro se to respond to the application forjudgment, and presented a credible defense to the government’s claims”); Quaker Valley Sch.
Dist. v. Emp’rs Mut. Liab. Ins. Co. of Wis., 96 F.R.D. 423, 424–25 (W.D. Pa. 1983) (insetting aside entry of default against third-party defendants, court stated that the record here
“suggests that at most, the [defendants] were neglectful”). But cf. United States v. Ware, 172
F.R.D. 458, 459 (D. Kan. 1997) (finding that “a pro se defendant’s unfamiliarity with thelegal system or ignorance of the law does not fall within the definition” of “excusable ne-116III. Legal Issues Regarding Nonprisoner Pro Se Litigants

However, a litigant’s pro se status provides less protection if thelitigant’s own culpable conduct led to the default. The Ninth Circuit
affirmed the denial of a pro se defendant’s motion to vacate a default
judgment under Rule 60(b) where, “despite receiving three notices
concerning the status of this matter, [he] resolutely ignored the court
and the [plaintiff] until a judgment [of default] had been filed against
him; then, when he did appear, he made protestations of innocencethat were found to be wholly untrue by the district court.” The defendant also “repeatedly attempted to avoid the [plaintiff]’s attempts
to provide him with documents pertaining to the lawsuit” and “refused to appear before the magistrate judge” for the hearing on his
claim that he was never properly served.355
Similarly, the Tenth Circuit affirmed a default judgment enteredagainst a pro se defendant after she had “failed to comply with numerous court orders,” including “the preparation of a court-ordered
stipulated scheduling and discovery order.” She also “failed to appear
at a properly noticed and court-ordered deposition, failed to appear ata court-ordered hearing relating to a discovery motion that she had
filed, and failed to timely respond to written discovery.” Perhaps not
surprisingly, she then “did not appear at the court-ordered hearing
for entry of default and determination of damages.” The appellate
court concluded that the defendant “willfully and intentionally failed
to comply with numerous scheduling and pretrial orders of the district court and that she was aware of the possible consequences of her
failure to do so.”356

glect” under Rule 60(b)(1), granting government’s motion for entry of default judgment
where tax defendant had failed to file an answer after his motion to dismiss was denied).
355. Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107–09 (9thCir. 2000). See also United States v. Minson, 13 F. App’x 416, 418 (7th Cir. 2001) (pro se
defendant debtor had shown “no difficulty navigating the court system” yet “failed to file atimely answer within 90 days, even though the court granted her one extension and warned
her that failure to answer would result in a default”).
356. Fin. Instruments Grp., Ltd. v. Leung, 30 F. App’x 915, 918–19 (10th Cir. 2002).

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3. Intent to Defend
Some courts, noting the disjunctive language in Rule 55(a) of “whena party failed to plead or otherwise defend,”357 have held that showing
an intent to defend weighs against default even if the litigant has otherwise failed to file proper pleadings, a situation that is not uncommon with pro se litigants. The Second Circuit, for example, reversed
an entry of default against a pro se defendant who, after failing to obtain counsel, had been late or incomplete with her filings, but had
attempted to reply to the plaintiffs’ pleadings and made clear her intent to defend or settle the case. Finding that the district court abused
its discretion in refusing to set aside the entry of default for “goodcause” under Rule 55(c), the court stated that there
is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training. . . . The court’s
duty is even broader in the case of a pro se defendant who finds herself in court against her will with little time to learn the intricacies
of civil procedure.358

In contrast, default was warranted where the defendants did not
answer the complaint for almost a year and “never even notified the
Court of their intention to defend the action or made any kind of
appearance before the Court.” Although pro se litigants are usually
given leeway in matters of procedure, they “are still required to make
357. The full text reads, “When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and that failure is shown by affidavit orotherwise, the clerk must enter the party’s default.”
358. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). See also United States v. Varmado, 342 F. App’x 437, 441 (11th Cir. 2009) (reversing default judgment against pro sestudent loan defendant: “she was not given proper notice that default judgment would be
issued against her; any delay was slight; there was no evidence of willful misconduct or intentionally dilatory tactics; and she advanced what could be liberally construed as a meritorious
defense at this early stage of the proceedings”); Bertolet v. Bray, 277 F. Supp. 2d 835, 837–
38 (S.D. Ohio 2003) (denying entry of default judgment against pro se defendant who appeared in court “at least twice” and “raised a number of arguments that . . . could constitutea meritorious defense,” thereby demonstrating a sufficient “intent to defend” even though hehad failed to file an answer to the complaint).

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III. Legal Issues Regarding Nonprisoner Pro Se Litigantsa good faith effort to comply with Federal Rules in their defense of acivil action. At the very least, defendants are required to notify the
Court as to whether they intend to defend the action in any manner.”
Failure to do so “indicates that their delay was willful.”359
Although it did not specifically reference pro se litigants, a 2007
amendment to Rule 55(a) specifically recognized the intent-to-defendline of cases.
Former Rule 55(a) directed the clerk to enter a default when a party failed to plead or otherwise defend “as provided by these rules.”The implication from the reference to defending “as provided bythese rules” seemed to be that the clerk should enter a default even
if a party did something showing an intent to defend, but that act
was not specifically described by the rules. Courts in fact have rejected that implication. Acts that show an intent to defend havefrequently prevented a default even though not connected to any
particular rule. “[A]s provided by these rules” is deleted to reflect
Rule 55(a)’s actual meaning.360

D. Competency
1. Competency Exam Under Rule 17(c)(2)Federal Rule of Civil Procedure 17(c)(2) states that “an incompetentperson who does not have a duly appointed representative may sue by
a next friend or by a guardian ad litem. The court must appoint a
guardian ad litem—or issue another appropriate order—to protect aminor or incompetent person who is unrepresented in an action.”
The rule does not, however, specify how a court is to determine
whether a litigant is incompetent or when it is required to do so.

359. S.E.C. v. U.N. Dollars Corp., No. 01 Civ. 9059(AGS), slip op. at 1 (S.D.N.Y.
Jan. 28, 2003), affirmed, 96 F. App’x 778 (2d Cir. 2004). See also United States v. Mulvenna, 367 F. App’x 348, 351 (3d Cir. 2010) (in addition to failing to file an answer or otherwise respond to complaint, pro se defendant “took no action after receiving notice that default had been entered against him, thereby signaling that he was not going to take the requisite steps to defend the litigation”).
360. Fed R. Civ. P. 55(a) advisory committee’s note to 2007 amendment.

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The Second Circuit analyzed Rule 17(c) in a case involving a pro
se plaintiff who claimed she was not competent to litigate her Title
VII case and had requested appointment of counsel. Her request wasdenied, she refused to cooperate with discovery despite several warnings, and eventually the district court granted summary judgment forthe defendant. The appellate court affirmed, rejecting the plaintiff’s
claim that the language of Rule 17(c)obligates a court to conduct a sua sponte inquiry into a litigant’scompetency when he or she demonstrates signs of incapacity. We
read nothing in the rule itself that obligates a district court to monitor a pro se litigant’s behavior for signs of mental incompetence.
The obligation imposed by the final sentence of Rule 17(c)—theduty to “appoint” or “make such other order”—arises after a determination of incompetency. If a court were presented with evidence from an appropriate court of record or a relevant publicagency indicating that the party had been adjudicated incompetent,
or if the court received verifiable evidence from a mental healthprofessional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent, it likely would be an abuse of the court’s discretion
not to consider whether Rule 17(c) applied. . . . Standing alone,
however, a litigant’s bizarre behavior is insufficient to trigger amandatory inquiry into his or her competency.361

The court added, however, that[a]lthough we do not find that Rule 17(c) requires courts to inquire
into the necessity of appointing a guardian ad litem absent verifiable evidence of mental incapacity, we also note that nothing in that361. Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 199–202 (2d Cir. 2003).
See also Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (agreeing with Ferrelli “that a
district court need not inquire sua sponte into a pro se plaintiff’s mental competence based ona litigant’s bizarre behavior alone, even if such behavior may suggest mental incapacity. Thatis an important limiting factor as to the application of Rule 17. The federal courts are flooded with pro se litigants with fanciful notions of their rights and deprivations. We cannot
expect district judges to do any more than undertake a duty of inquiry as to whether there
may be a viable basis to invoke Rule 17. That duty of inquiry involves a determination ofwhether there is verifiable evidence of incompetence.”) (Powell is a prisoner pro se case, but
has been applied to nonprisoner cases).

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rule prevents a district court from exercising its discretion to consider sua sponte the appropriateness of appointing a guardian ad litem for a litigant whose behavior raises a significant question regarding his or her mental competency. Indeed, such consideration
may be particularly appropriate in the case of a defendant who
shows signs of severe incapacity, in part because a judgment enteredagainst a mentally incompetent defendant not represented by aguardian or a guardian ad litem may be subject to collateral attack
at a later date.362

The Fourth Circuit reached a similar conclusion for a pro se defendant whose court-appointed attorney on appeal argued that “hismental incompetence to defend himself without guardian or counsel,
was so manifest that the district court erred in failing to appoint a
guardian ad litem for him or, at least, in failing to conduct a specificinquiry into his competence.”363 “Obviously if there has been a legal
adjudication of incompetence and that is brought to the court’s attention, [Rule 17(c)(2)] is brought in play.”364 In this case, however,a common sense appraisal of Sellner on the basis of his out-of-court
and in-court conduct would likely have been that here was a person
courting destruction out of misplaced zeal or vindictiveness or simple meanness of spirit, who was nevertheless a highly intelligent,shrewd and able person insofar as understanding and managing his
immediate practical affairs was concerned. It is impossible to believe, for example, that had Sellner himself resisted an attempt tohave him adjudged “incompetent” at the time, he would not easily
have succeeded.365
362. Ferrelli, 323 F.3d at 203. See also McLean v. GMAC Mortg. Corp., 398 F. App’x
467, 470 (11th Cir. 2010) (per curiam) (citing Ferrelli in finding district court did not err infailing to sua sponte inquire into plaintiff’s mental health). Cf. Massie v. Metro. Museum ofArt, 651 F. Supp. 2d 88, 98 (S.D.N.Y. 2009) (following Ferrelli in considering sua sponte
pro se plaintiff’s mental health status as factor in determining whether oral settlement agreement was enforceable “in view of plaintiff’s . . . questionable mental state, the lack of specificity at the time of the agreement as to what sum he would receive, and plaintiff’s prompt
pre-performance disavowal of the agreement”).
363. Hudnall v. Sellner, 800 F.2d 377, 384 (4th Cir. 1986).
364. Id. at 385.
365. Id. at 386

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The court concluded that there was “no abuse of discretion on the
district court’s part in failing sua sponte to conduct a collateral inquiry
into Sellner’s mental competence.”366
On the other hand, where a defendant had been found by the Social Security Administration to be totally physically and mentally disabled, the Ninth Circuit found it was error to allow a trial to proceedwithout holding a hearing on whether to appoint a guardian. Under
Rule 17(c), “the court has broad discretion and need not appoint a
guardian ad litem if it determines the person is or can be otherwise
adequately protected, [but] it is under a legal obligation to consider
whether the person is adequately protected.” In this case, the districtcourt
was clearly on notice that Starr claimed to be incompetent and his
claim was made credible by official documentation. Despite this,the court apparently failed to make any inquiry into the issue andtook no steps to insure that Starr’s interests were adequately protected. This is not an abuse of discretion but a failure to exercise legally required discretion.367

Even if a psychiatrist diagnoses a plaintiff with a mental illness after a Rule 17(c) hearing, it is error to appoint a guardian ad litem
against the wishes of a plaintiff unless the mental incapacity actuallyinterferes with the ability of the plaintiff to effectively represent himself or herself. The Third Circuit vacated an appointment for an attorney who was acting pro se and who, despite a diagnosis of “a delusional disorder with grandiose and persecutory delusions,” was employed as an attorney, “presented as ‘intelligent, articulate, and enthusiastic,’ . . . and was analytical and organized.” The court stated that“[t]he purpose behind appointing a guardian is to protect the interests of the incompetent person, not the defendants. Richards is clearlyable to protect her interests in this litigation” by proceeding pro se,
366. Id. “Parties to litigation behave in a great variety of ways that might be thought tosuggest some degree of mental instability. Certainly the rule contemplates by ‘incompetence’something other than mere foolishness or improvidence, garden-variety or even egregious
mendacity, or even various forms of the more common personality disorders.” Id. at 385.
367. United States v. 30.64 Acres of Land, 795 F.2d 796, 804–05 (9th Cir. 1986).

122III. Legal Issues Regarding Nonprisoner Pro Se Litigantsand “the District Court abused its discretion in appointing a guardianad litem because it did not apply the correct standard or make any
factual findings to support such a decision.”368
Note that if a pro se plaintiff is filing in forma pauperis and is subject to 28 U.S.C. § 1915(e), the court need not undertake a Rule17(c)(2) analysis if the claim is frivolous or malicious or is not one forwhich relief may be granted.369

2. Procedural Issues
A litigant must receive notice and an opportunity to oppose a competency evaluation or the appointment of an attorney or guardian.
The appointment of a guardian ad litem deprives the litigant of theright to control the litigation and subjects him to possible stigmatization, but it does not altogether deprive him of his day in court.
Nonetheless, due process mandates some type of hearing. . . . Thus,
at a minimum, Thomas should have been given notice and an opportunity to be heard.370

368. Richards v. Duke Univ., 166 F. App’x 595, 598–99 (3d Cir. 2006) (per curiam).
Cf. Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d Cir. 1998) (in determining whether to appoint counsel under Rule 17(c), “the court should consider the fact that,without appointment of counsel, the case will not go forward at all. Of course, this does notmean that appointment of counsel is required when it is clear that no substantial claim might
be brought on behalf of such a party. But the fact that the party has no means of asserting his
rights other than through counsel is certainly a factor that must be considered.”).
369. See Powell, 680 F.3d at 307 (“In the context of unrepresented litigants proceedingin forma pauperis, [a Rule 17(c)(2)] inquiry would usually occur after the preliminary merits
screening under 28 U.S.C. § 1915A or 28 U.S.C. § 1915(e)(2).”); Mahoney v. New Hampshire, No. 14cv431-JD, slip op. at 2 (D.N.H. June 17, 2015) (following Powell where complaint failed to survive screening pursuant to § 1915(e)(2)).
370. Thomas v. Humfield, 916 F.2d 1032, 1033–34 (5th Cir. 1990). See also Sturdza
v. United Arab Emirates, 562 F.3d 1186, 1188–89 (D.C. Cir. 2009) (citing Thomas: “Whenthe party for whom the guardian is sought claims to be competent, at least ‘some hearing’ isrequired. . . . [B]efore adjudicating Ms. Sturdza incompetent and appointing a guardian, thedistrict court should have ordered her to show cause why a guardian should not be appointed
and informed her that in determining whether to appoint one, it would consider any failureon her part to comply or to submit to psychiatric evaluation.”). For a more extensive discussion of the procedures to be used in appointing a guardian ad litem, see Neilson v. ColgatePalmolive Co., 199 F.3d 642, 651–54 (2d Cir. 1999) (affirming district court appointment

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In a Ninth Circuit case, the pro se plaintiff was ordered to produce information needed to determine whether he was competent.
Although warned that failure to do so could result in dismissal, he did
not comply with the order, and the district court dismissed the plaintiff’s eight lawsuits with prejudice. The appellate court reversed, holding that where there is a substantial question about the mental competence of a pro se litigant, the “preferred procedure” is for the court
to “conduct a hearing to determine whether or not the party is competent, so that a representative [or an attorney] may be appointed if
needed. . . . [T]he court may not dismiss with prejudice for failure tocomply with an order of the court.”371
See generally supra Part II.I.1, “Mental or Emotional Issues.”

E. Evidentiary Issues and Judicial Discretion
Under Rule 611(a) of the Federal Rules of Evidence, “[t]he court
should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time;and (3) protect witnesses from harassment or undue embarrassment.”
The original Advisory Committee Notes to the 1972 Proposed Rules
for Rule 611(a) state that “[t]he ultimate responsibility for the effective working of the adversary system rests with the judge.”of guardian over plaintiff’s objection) (then-Judge Sotomayor dissenting in part, finding thatthe notice given was inadequate).
371. Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). The “district court has
discretion to dismiss the cases without prejudice, appoint a lawyer to represent Krain, or
proceed with a competency determination.” Id. See also Berrios v. N.Y.C. Hous. Auth., 564
F.3d 130, 134 (2d Cir. 2009) (“[I]f the court views it as clear that no substantial claim could
be asserted . . . , it may dismiss the complaint, but without prejudice.”); Sturdza, 562 F.3d at
1188–90 (citing Krain in stating that plaintiff, who objected to appointment of guardian,could avoid submitting to psychiatric evaluation by seeking dismissal without prejudice). But
cf. Sturdza v. United Arab Emirates, 644 F. Supp. 2d 50, 77–78 (D.D.C. 2009) (problem
with allowing plaintiff to move for dismissal without prejudice is that “any litigation that she
might initiate following the dismissal would likely be precluded by the running of the statutes of limitations on her claims”).

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Examining Rule 611(a), the Fifth Circuit declared that “[t]heconduct of a fair trial is vested in the sound discretion of the trial
judge. . . . His duty extends far beyond ruling on objections and preserving decorum in the courtroom. Though the trial judge must be
neutral, he need not be a passive spectator.” A judge also has an obligation “to see that the trial is just and not subject to delay. . . . He
may question witnesses, elicit facts, clarify evidence and pace the trial.” In some cases, “the trial judge may need to assume a greater responsibility for the direction of the trial.”372 The court also noted that“[g]reater latitude should be allowed in the conduct of a bench trial
than would be permitted in a trial conducted with a jury. In the former there is no possibility that the judge’s actions might improperly
influence jurors.”373
Rule 611, along with Rule 614 (discussed below), provide theflexibility judges often need in pro se cases. See also supra Part II.G.2.

1. Court Discretion to Call and Question Witnesses
and Develop Facts
Under Federal Rule of Evidence 614(a) and (b),374 the district court“may call a witness on its own or at a party’s request” and “may ex372. Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 391–93 (5th Cir.
1985). See also Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997) (The judge “is ‘the governor of the trial for the purpose of assuring its proper conduct,’ and has a perfect right—
albeit a right that should be exercised with care—to participate actively in the trial proper.”);Ayash v. United States, 352 F.2d 1009, 1010 (10th Cir. 1965) (“The trial Judge is not amere moderator or umpire in the trial of a case in federal court, and, within reasonablebounds, he has the right to participate in eliciting the truth.”).
373. Cranberg, 756 F.2d at 392. See also Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Evidence Manual § 2.06, at 2-52.1 (8th ed. Supp. 2010) (“A trial is a search forthe truth, and the court is more than a mere umpire of the proceedings.”); Fed. R. Evid. 102(“ascertaining the truth” is one purpose of the rules of evidence).
374. Rule 614 applies to both criminal and civil cases, and although there are some exceptions, the courts do not seem to distinguish between the two. See, e.g., Cunningham v.
Housing Auth. of City of Opelousas, 764 F.2d 1097, 1100 (5th Cir. 1985) (“While thispower is more often used in the context of a criminal case, see Fed. R. Evid. 614(a) advisorycommittee note, courts have called their own witnesses in civil cases as well.”). Also, whilealmost all of the cases involve represented litigants, the principles hold, or are even stronger,
for pro se litigants. See, e.g., Leo H. Whinery, Theodore P. Roberts & Robert B. Smith, The

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amine a witness regardless of who calls the witness.” The original Advisory Committee Notes state that “the authority of the judge to callwitnesses is well established. . . . The authority of the judge to question witnesses is also well established.”375
The right to examine witnesses seems tailor-made for cases involving pro se litigants, who often lack the skill to conduct a meaningful and efficient line of questioning or cross-examination. The
court may question witnesses “to clarify testimony for the jury, tocorrect misstatements, or to fully develop the relevant facts and assist
the jury in giving meaning to such facts by organizing them in a coherent manner. There is ‘nothing wrong’ with a judge suggesting aline of questioning to an attorney.”376
Note that there is no duty to call witnesses.
By providing that the trial court ‘may’ call witnesses, Rule 614(a)recognizes that calling witnesses is a matter of judicial discretion rather than duty, and that a court’s failure to call a witness on its
own, or at the suggestion of a party, is not a ground for reversal.
Ordinarily, the court’s exercise of its right will not lead to a reversal
either, unless the appellate court concludes that the trial court’s action interfered with the fairness of the trial.377

Rule 614(b) also uses may for the court’s power to interrogate witnesses, indicating that it, too, is a matter of discretion rather than aduty, and appellate review is for abuse of discretion.378
Judge’s Evidence Bench Book § 614:2 (2005 update) (listing “assist a pro se party” as one of
the reasons for a judge to call or interrogate witnesses). Although the cases here refer to witnesses in trials, the general principles should apply in other, less formal hearings.
375. Fed. R. Evid. 614 advisory committee’s notes to 1972 amendments (noting that
one reason for the practice is so that “the judge is not imprisoned within the case as made by
the parties”).
376. Weinstein & Berger, supra note 373, § 2.06, at 2-52.2.
377. Id. § 2.06, at 2-51.1–2.
378. Id. § 2.06, at 2-52.3; Charles Alan Wright & Victor James Gold, 29 Federal Practice & Procedure § 6235 (1997) (“While some case authority suggests that there are circumstances under which a court has an affirmative duty to interrogate witnesses, the language ofRule 614(b) leaves the decision to interrogate within the discretion of the court.”). See also
Stevenson v. D.C. Metro. Police Dept., 248 F.3d 1187, 1190 (D.D.C. 2001) (affirming trial
judge’s use of hypothetical question to a defense expert witness, stating that “Rule 614(b) of

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The Eighth Circuit affirmed a trial judge’s interrogation of a witness even though the defendant claimed that it “constituted an entirely new line of questioning and did not serve the purpose of clarifying
previous testimony.” The court stated that judicial questioning under
Rule 614(b) “is not limited to clarifying previous testimony. The
court may take an active role in developing the evidence.” Also, thecourt gave both sides the opportunity to question the witness further
and gave a curative instruction to the jury.379
In addition to directly eliciting evidence from a witness, a judge
has the authority to prompt a litigant to introduce or discuss evidence. During a jury trial in New York, for example, the pro se plaintiff’s opening statement at trial and papers she had previously submitted in opposition to a motion for summary judgment indicated that“she could testify to the necessary elements of her claims.” However,as she neared the end of her direct testimony, “she had not yet put inany evidence on her quasi-contract claim with respect to her expectation of payment, any demand for payment, or the reasonable value ofher services . . . . It became clear that [she] did not know that sheneeded to testify to those elements at trial.” Upon questioning by thejudge, she explained that she thought the judge, not the jury, would
the Federal Rules of Evidence expressly permits judges to question witnesses. . . . ‘Judges may
do so repeatedly and aggressively to clear up confusion and manage trials or where testimony
is inarticulately or reluctantly given.’”) (citations omitted).
379. Van Leirsburg v. Sioux Valley Hosp., 831 F.2d 169, 173 (8th Cir. 1987) (“A trial
judge will not be reversed for excessive judicial intervention unless the record shows that he
was actually biased or that he projected the appearance of advocacy or partiality to the jury.”). See also Chainey v. Street, 523 F.3d 200, 222 (3d Cir. 2008) (“[T]he abuse of discretion standard is a deferential one and in order to meet the standard the conduct of a trial
judge must be ‘inimical and partisan, clearly evident and prejudicial.’”). Cf. Holland v.
C.I.R., 835 F.2d 675, 676 (6th Cir. 1987) (affirming action of trial judge who, “rather thancalling his own independent witness, suggested that the government procure an expert witness whose testimony would thereafter be made a part of the government’s case in chief.
While we recognize that the procedure employed was somewhat unusual, an examination of
the record satisfies us that there was substantial compliance with the requirements” of Rule614); Cunningham, 764 F.2d at 1100–01 (affirming district court’s order that the parties
take the deposition of an uncalled potential witness, even after the case had been submitted
to the court for decision, stating, “We find that ordering the taking of this deposition is theequivalent of the court calling its own witness.”).

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determine any amounts owed for her services, and that her prior written submissions to the court on this issue were sufficient. The same
was true for her claim of intentional infliction of emotional distress.380“To avoid the manifest injustice which would flow from such a
misunderstanding, the court explained to her the necessity of testifying to those facts in front of the jury”:[Y]ou should be considering whether on the one hand you wish toleave the record as it is or on the other hand wish an opportunity to
add those incidents that you referred to earlier but haven’t referredto yet in this trial, because the record is the record at the trial andthe verdict will be judged by the trial record, not by the other matterswhich were brought to my attention during the course of the preparation of the case.381

The defendant, who had also proceeded pro se, claimed on appeal
that this demonstrated bias in favor of the plaintiff. The appellate
court rejected that argument:
The trial judge did assist Scott, who was proceeding pro se, by correcting some of her misunderstandings of law and instructing her
on what kind of proof she needed to offer. A trial court may ask
questions for such purposes as “clarifying ambiguities, correcting
misstatements, or obtaining information needed to make rulings.”. . . And, it “may actively participate and give its own impressionsof the evidence or question witnesses, as an aid to the jury, so longas it does not step across the line and become an advocate for one
side.” . . . Here, the trial judge assisted both pro se parties and did
not act as an advocate for either party.382

380. Scott v. Rosenthal, No. 97 Civ. 2143 (LLS), slip op. at 5–6 (S.D.N.Y. Aug. 24,
2001).
381. Id. at 6.
382. Scott v. Rosenthal, 53 F. App’x 137, 142 (2d Cir. 2002) (upholding awards of$400,000 to plaintiff on her quasi-contract claim and approximately $15,000 to defendanton his counterclaims).

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The district court also sua sponte dismissed an oral contract claim,raised by the defendant during the trial, and the appellate court affirmed, holding that the district court did not abuse its discretion.383
A court may also have the discretion to raise a legal issue that theparties have ignored or overlooked. In a case involving an alleged
breach of warranty, the district court sua sponte questioned whether
the contract contained a limitation of remedy provision, an issue neither party had raised. It did, and that provision became the basis forthe court’s decision to grant the defendant’s motion for summary
judgment. The Seventh Circuit rejected the plaintiff’s appeal, holding
the district court’s action was within its discretion:
While district courts must be careful not to create the impressionthat they are taking an advocacy position on a particular issue, they
are not required to ignore contractual provisions or applicable law.
Here, the substance of the [warranty] is at the very heart of the parties’ dispute in this case. The district court judge did not scour therecord searching for a reason to dismiss [plaintiff]’s breach of warranty claim—the remedy limitation is contained in the same section
as the hotly contested disclaimer of warranties. Given the current
state of Illinois law, one could wonder why [defendant]’s attorneychose not to raise the remedy limitation issue. Whatever the reason,
the district court was certainly permitted to do so.384

The court cited an earlier Seventh Circuit case that had held that“while a judge should never engage in advocacy from the bench, he or
she has an obligation to raise legal issues that the parties have overlooked or neglected. After all, the judge is on the bench in the firstplace (we trust) because of superior legal background, expertise, orcredentials, and for that reason ‘[should] not sit as a passive observer
who functions solely when called upon by the parties.’”385

383. Id.
384. S. Ill. Riverboat Casino Cruises, Inc. v. Triangle Insulation and Sheet Metal Co.,
302 F.3d 667, 677 (7th Cir. 2002).
385. Jones v. Page, 76 F.3d 831, 850 (7th Cir.1996) (citation omitted). “[T]he judge
should take an active role, when necessary, to ensure fairness and to conform the proceedings
to the law.” Id.

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In a criminal fraud case that involved letters written by a prisoner,
who was defending himself (though with standby counsel), the trial
court suggested to the prosecutor that the government’s handwriting
expert compare documents then in evidence with hand-printed voir
dire questions written by the defendant in court and handed to thejudge. The defendant argued that this constituted plain error because
it denied him a fair trial by displaying the trial judge’s bias and prejudice toward the defendant. The appellate court affirmed, stating thateven in a criminal case, the trial judge may
tak[e] proper steps to aid and assist the jury in the truth finding
quest leading to the proper determination of guilt or innocence. In
the promotion of this goal, the trial judge has an obligation, on his
own initiative, at proper times and in a dignified, and impartial
manner, to inject certain matters into the trial which he deems important in the search for truth.386

In another criminal case, outside the presence of the jury, the trial
judge expressed “some concerns about the quantum of evidence” tothe prosecutor, and suggested she had to provide more evidence for aconviction. They then had a discussion, “with the prosecutor explaining how she had made, or planned to make, her case, and the judge
explaining where he found holes in her evidence and what sort of testimony would be necessary to fill in the gaps.”387 The appellate court
held that this was not improper, agreeing with “our sister circuits[that] have held that there is nothing wrong with a judge suggesting aline of questioning to an attorney.”388
386. United States v. Pinkey, 548 F.2d 305, 308 (10th Cir. 1977). See also Massey v.
United States, 358 F.2d 782, 787 (10th Cir. 1966) (In a case involving a stolen car, “the trial
judge suggested that a Pontiac dealer should be able to shed more light on the subject ofidentification, and the government, heeding the suggestion, produced a factory representative of the manufacturer as a rebuttal witness. We note that the judge also assisted the appellant by reminding his counsel that he had failed to move for acquittal at the close of theappellant’s case. The activity of the trial judge was not that of an advocate, but clearly was
designed to get all the available facts fully and fairly before the jury.”).
387. United States v. Lopez-Martinez, 543 F.3d 509, 513 (9th Cir. 2008).
388. Id. (citing United States v. Ramos, 413 F.2d 743, 746 (1st Cir. 1969) (per curiam) (holding that suggestions “by trial judges to prosecutors concerning elements of proof
and appropriate lines of inquiry have often been held proper, even when made in the pres-130

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2. Court Discretion to Exclude Evidence
Under Federal Rule of Evidence 104(a), district courts “must decide
any preliminary question about whether . . . evidence is admissible.”This is not an independent basis for excluding evidence but rather“provides the trial court with the authority to decide questions thatmight make evidence inadmissible under some other rule of evidence(or under the Constitution, a federal statute, or other Supreme Court
rules).”389 This authority may be used to limit inadmissible evidence
that a pro se litigant attempts to introduce, thus avoiding confusionand potential delay. But a judge may also protect a pro se litigant who
may not know to object to inadmissible evidence that the other party
may try to introduce by excluding such evidence sua sponte.
A party’s failure to object usually waives the objection and forecloses the party from complaining if the evidence is admitted. But the
party’s failure does not preclude the trial judge from excluding theevidence on her own motion if the witness is disqualified for wantof capacity or the evidence is inadmissible, and the judge believes
the interests of justice require the exclusion of the testimony. The
Federal and Revised Uniform Rules of Evidence grant the judge
sufficiently broad power to intervene sua sponte in such circumstances.390

ence of the jury”)). See also United States v. Never Misses a Shot, 781 F.3d 1017, 1023–24(8th Cir. 2015) (district court did not abuse its discretion when it called for a sidebar andwarned prosecutor that additional testimony was needed from complainant to avoid directedverdict for defendant).
389. United States v. Evans, 728 F.3d 953, 960–61 (9th Cir. 2013) (district court has“gate-keeping” authority under Rule 104(a) to exclude inadmissible evidence). See also Andrews v. Bechtel Power Corp., 780 F.2d 124, 140–41 (1st Cir. 1985) (before trial, judge told
pro se plaintiff that certain evidence would be excluded from the trial); United States v.
Wright, 542 F.2d 975, 979 (7th Cir. 1976) (“A trial judge does not become an advocate inlitigation by stopping on his own motion, whether on direct or cross-examination, an improper line of inquiry.”).
390. Charles T. McCormick, McCormick on Evidence § 55, at 282–83 (6th ed. 2006)(also citing to “[t]he judge’s broad power to control the presentation of evidence to ‘makethe interrogation and presentation effective for the ascertainment of the truth’” under Rule611(a), and to Rule 103(e), which allows courts to “take notice of a plain error affecting asubstantial right, even if the claim of error was not properly preserved”).

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3. Privileges
The Federal Rules of Evidence only specifically list attorney-client
privilege and work product protection in Rule 502. For other privileges “[t]he common law—as interpreted by United States courts inthe light of reason and experience—governs a claim of privilege” except as otherwise provided by the U.S. Constitution, federal statute,or Supreme Court rule.391 In a civil case, however, “state law governs
privilege regarding a claim or defense for which state law supplies therule of decision.”392
Normally, the attorney for either party would raise the issue ofprivilege to protect a client or witness. A pro se litigant, however—ora witness called to testify by or against a pro se litigant—may be unaware that a particular privilege applies. If no one objects, may the
court step in and recognize the privilege? At least one respected authority indicates that judges have the discretion to do so. “[O]ther
persons present at the trial, including the adverse party, may call tothe court’s attention the existence of the privilege, or the judge may
choose to intervene of his own accord to protect it . . . on behalf ofthe owner of the privilege.”393 Note that only the holder of the privilege may actually claim it. The court or other objecting party only
brings it to the attention of the person holding the privilege, whothen chooses whether to assert or waive it.394
a. Spousal Privilege
The “confidential communications” branch of the marital privilege
applies to federal civil cases as well as criminal (the testimonial privilege only applies to criminal cases).395 Although the privilege applies
only to confidential communications made during a valid marriage,
391. Fed. R. Evid. 501.
392. Id.
393. McCormick, supra note 390, § 73.1, at 342–43.
394. Id.
395. Whinery et al., supra note 374, § 505:2, at 5-70 to 5-71. “[T]he privilege is universally accepted in the federal courts and applies in criminal cases and civil cases where federal law supplies the rule of decision. . . . It continues to be based on the rationale that theexistence of the privilege encourages spouses to confide in each other.” Id. § 505:9, at 5-75.

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the privilege “survives the termination of the marriage by annulment,
divorce, or death.”396
Note that privileges, including the confidential communicationsprivilege, “protect the holder’s outside interests, not the parties’ interest in securing justice in the present litigation. Accordingly, when aquestion calls for privileged matter and the holder is present, if necessary the judge may explain the privilege to the holder, but the judge
should not assert it on her own motion if the holder decides against
claiming the privilege.”397 Because “both spouses hold the privilege,”398 a court may be protecting the interests of a nonparty witness—not just the pro se litigant—by recognizing the privilege. The
D.C. Circuit has, in a criminal case brought under the laws of theDistrict of Columbia, advised judges to warn a witness-spouse of theprivilege. Interpreting a provision of the D.C. Code (enacted by the
U.S. Congress in 1961),399 the court advised that, “outside the presence of the jury, the trial judge should tell one who is called to testify
for or against his spouse that his testimony cannot be compelled but
may be received if volunteered.”400
b. Psychotherapist-Patient Privilege
In a case involving a claimed waiver of the psychotherapist-patient
privilege by a pro se plaintiff, the Second Circuit focused in part on thefact that the plaintiff was not represented by counsel at the time of theclaimed waiver. The plaintiff was a state prisoner pursuing a civil rights
claim against two corrections officers for use of excessive force and wasproceeding pro se after being denied an appointed attorney. At his396. Id. § 505:12, at 5-77.
397. McCormick, supra note 390, § 55, at 283.
398. Id. § 83, at 379.
399. Title 14, § 306 D.C. Code (1961). The statute read: “In both civil and criminal
proceedings, husband and wife shall be competent but not compellable to testify for oragainst each other.”400. Postom v. United States, 322 F.2d 432, 433–44 (D.C. Cir. 1963). See also UnitedStates v. Lewis, 433 F.2d 1146, 1150 (D.C. Cir. 1970) (“Undeniably, the safer course is tofollow the Postom suggestion in all instances where the spouse-witness’ knowledge of thetestimonial alternatives is not crystal clear.”).

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deposition, the defendants’ attorney asked a series of questions that led
to the plaintiff describing his stay in the prison’s psychiatric unit immediately preceding the alleged assault and some conversations he hadwith a psychiatric nurse in the unit. The plaintiff was eventually assigned counsel, and shortly thereafter the defendants demanded the
production of all of the plaintiff’s psychiatric records since his incarceration. Over the plaintiff’s objection that those records were protectedby the psychotherapist-patient privilege, that he had not intended toplace his mental or emotional state at issue, and that he would not seek
to make his mental condition an issue at trial, the district court substantially approved the defendants’ request. The plaintiff filed a petition for a writ of mandamus seeking reversal of the district judge’s order to release his psychiatric records.401
The appellate court granted the writ and reversed the order to release the records. Analyzing whether the plaintiff had waived the privilege, the court noted that “a waiver may be implied in circumstanceswhere it is called for in the interests of fairness,” that is, when a party
attempts to use the privilege as both “a shield and a sword.”402 This
fairness analysis is to be decided on a case-by-case basis and is factspecific. Part of the analysis concerns whether the witness-litigant wasappearing without an attorney. “[D]istrict judges should ‘make someeffort to protect a party so appearing from waiving a right . . . becauseof his or her lack of legal knowledge’ . . . [and] should not allow a pro
se litigant’s rights to ‘be impaired by harsh application of technicalrules.’”403
The court concluded that “nothing in the record here suggeststhat Sims made a knowing election to waive his psychotherapist–
patient privilege. Sims requested and was denied assignment of counsel, and nothing has been called to our attention to indicate that hewas even aware that he had such a privilege and was entitled to maintain the confidentiality of his psychiatric communications.” Thecourt further found that, “in basing its waiver finding on the proposi401. In re Sims, 534 F.3d 117, 120–27 (2d Cir. 2008).
402. Id. at 132.
403. Id. at 133 (internal citations omitted).

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tion that at his deposition Sims ‘testified freely’. . . about his communications with [the psychiatric nurse], the district court apparently
gave no consideration to the fact that at that deposition Sims was not
represented by counsel.” It is “relevant to the fairness analysis that therecord does not indicate that Sims was learned in the law and does
indicate that when Sims represented himself at his deposition it was
not by his choice.”404

F. Sanctions
With any sanctions, courts should give all litigants a warning about
the conduct at issue, notice of what sanctions are being considered,and an opportunity to respond. The court should also narrowly tailor
any order to fit the particular conduct and make sufficient findings
for appellate review. The main differences in pro se cases appear to be
similar to the general treatment of pro se litigants: be more lenient,explain matters more carefully, give more warnings, and make surethe litigant understands the consequences of any sanction that may be
imposed if the conduct continues.
A good example of how pro ses should be treated more leniently
is found in Rule 37(c)(1), the “automatic sanction” for failure to
make a required disclosure under Rule 26(a). The Committee Noteto the 1993 amendments states that[l]imiting the automatic sanction to violations “without substantial
justification,” coupled with the exception for violations that are“harmless,”405 is needed to avoid unduly harsh penalties in a variety
of situations: e.g., . . . the lack of knowledge of a pro se litigant of
the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirement for disclosure had

404. Id. at 136–38.
405. The phrases quoted from Rule 37(c)(1) were amended after 1993 and currently
read “unless the failure was substantially justified or is harmless.”

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been called to the litigant’s attention by either the court or anotherparty.406

Because nonprisoner pro se litigants are usually of limited meansor are filing in forma pauperis, monetary sanctions tend to be ineffective and are less often imposed than dismissal or a filing injunction.
The latter two sanctions are discussed in this section. Default judgments, which can also be imposed as a sanction, were discussed in
section C.

1. Dismissal
Courts have the authority to dismiss a case under several of the Federal Rules of Civil Procedure, as well as by virtue of their inherent
authority.407 One of the most frequently used rules in pro se cases is
Rule 41(b):If the plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—
except one for lack of jurisdiction, improper venue, or failure to joina party under Rule 19—operates as an adjudication on the merits.
406. Cf. Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172–73 (5th Cir. 1977)(The district court “abused its discretion in imposing the most drastic sanction possible”
under Rule 37(d), dismissal with prejudice, for single failure to appear at deposition by pro
se plaintiff who apparently “misunderstood the import of Alcoa’s efforts to depose him. Ignorance of his obligations under the Federal Rules does not excuse his default, but the district court should have considered Griffin’s ineptitude in determining whether a sanction lessthan dismissal effectively could protect Alcoa’s right to discovery.”).
407. See, e.g., Vazquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st Cir. 2011) (“In orderto operate effectively and administer justice properly, courts must have the leeway ‘to establish orderly processes and manage their own affairs.’. . . As such, trial courts have substantial
authority to impose sanctions, including dismissal, against a party for noncompliance withvarious procedural rules and court orders.”); Bautista v. L.A. Cty., 216 F.3d 837, 841 (9thCir. 2000) (“District courts have the inherent power to control their dockets and in the exercise of that power they may impose sanctions including, where appropriate, dismissal of acase.”); Chong Su Yi v. Soc. Sec. Admin., 554 F. App’x 247, 248 (4th Cir. 2012) (per curiam) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of
the court.”).

136

III. Legal Issues Regarding Nonprisoner Pro Se LitigantsNote, however, that “[d]ismissal is a harsh penalty, . . . and should
therefore be imposed only in extreme circumstances.”408 In the Ninth
Circuit, district courts must consider five factors when deciding
whether to dismiss a case for failure to comply with a court order:“(1) the public interest; (2) the court’s need to manage the docket; (3)the risk of prejudice to the defendant; (4) the public policy favoring
disposition of cases on their merits; and (5) the availability of lessdrastic alternatives.”409 An order of dismissal for failure to properly
amend the complaint was reversed for failure to satisfy this test,
where, among other things, the district court’s “bare-bones order” toamend the complaint “did not specify what it required in the pleading, and it gave no warning that it would dismiss the next complaint
with prejudice if it did not comply.”410
In an appeal of a Rule 41(b) dismissal where “the record contains
no indication that the district court considered” the five-step test employed in the Second Circuit, the appellate court stated that although
it does not

408. Bautista, 216 F.3d at 841. See also LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001) (“[A] Rule 41(b) dismissal remains ‘a harsh remedy to be utilized
only in extreme situations’”; moreover, because “pro se plaintiffs should be granted special
leniency regarding procedural matters, . . . ‘deference is due to the district court’s decision todismiss a pro se litigant’s complaint only when the circumstances are sufficiently extreme.’”)(citation omitted); Rose v. Soc. Sec. Admin., 202 F.3d 270, 270 (6th Cir. 1999) (table)(“Although dismissal of a case is appropriate when a pro se litigant has engaged in a clear
pattern of delay, this court prefers that claims be adjudicated on their merits. . . . Indeed, it isincumbent upon the district court to take appropriate measures to permit the adjudication of
pro se claims on the merits, rather than order their dismissal on technical grounds. . . . The
court has a duty to ensure that the claims of a pro se litigant are given fair and meaningfulconsideration.”).
409. Bautista, 216 F.3d at 841.
410. Id. See also Olsen v. Mapes, 333 F.3d 1199, 1204–05 (10th Cir. 2003) (using circuit’s five-part test, holding that it was an abuse of discretion to dismiss a case for failure tofollow court orders to perfect service where the pro se plaintiffs were entitled to rely on service by the U.S. marshal, there was no evidence that the plaintiffs failed to cooperate withthe marshal, and they made sincere efforts to comply with the district court’s orders eventhough they were entitled to rely on service by the marshal). Although there are common
threads in each circuit’s multifactor test and one circuit may use another’s, there is no single
multifactor test for whether dismissal is warranted under Rule 41(b) or Rule 37.

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require the court to discuss the factors on the record, a decision todismiss stands a better chance on appeal if the appellate court has
the benefit of the district court’s reasoning. Furthermore, notionsof simple fairness suggest that a pro se litigant should receive an explanation before his or her suit is thrown out of court.411

Reversing, the court held that none of the factors warranted dismissal,
especially the lack of consideration of lesser sanctions for relatively
minor noncompliance.412
Similar principles have been applied to dismissals under Rule 37
for discovery abuses, for which some circuits also have multifactor
tests and emphasize that pro se litigants should receive adequate
warnings:
Pro se litigants, though generally entitled to “special solicitude” before district courts, . . . are not immune to dismissal as a sanction
for noncompliance with discovery orders. Dismissal of a pro se litigant’s action may be appropriate “so long as a warning has been
given that non-compliance can result in dismissal.”....
Several factors may be useful in evaluating a district court’s exercise of discretion to dismiss an action under Rule 37. These include: “(1) the willfulness of the non-compliant party or the reason
for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the noncompliant party had been warned of the consequences of . . . noncompliance.”413

411. LeSane, 239 F.3d at 209.
412. Id. at 210–11.
413. Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal
citations omitted) (affirming dismissal for pro se litigant who, over six months, failed toappear for his depositions or fulfill discovery requests or comply with court orders; plaintiff
was repeatedly warned that dismissal was possible and was not deterred by imposition oflesser sanction). See also Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159–60 (10thCir. 2013) (affirming “harsh sanction” of default judgment against pro se defendant afterwarnings and lesser sanctions did not end repeated failures to comply with court orders anddiscovery schedules).

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Even in an egregious case where dismissal is easily justified, such as
one where a pro se plaintiff “deliberately and defiantly refused tocomply with several court orders on discovery and [told] the courtthat he [would] not comply in the future,” explaining
why lesser sanctions will not do is a good practice on the part of a
district court using dismissal as a sanction. This information helps
us in reviewing the dismissal; and, as our case law shows, the failure
to explain why a lesser sanction was not used may result, in theclose cases, in a reversal or vacation of an order of dismissal.414

Note that although it may prove futile to warn a pro se litigantthat pro se status does not excuse noncompliance with court orders, it
may be a factor in whether a dismissal is upheld on appeal.415

2. Filing Injunctions
As the Fifth Circuit said several years ago, “one acting pro se has nolicense to harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court dockets.”416 To detersuch conduct, courts may resort to imposing sanctions on vexatious
414. Phipps v. Blakeney, 8 F.3d 788, 790–91 (11th Cir. 1993) (plaintiff “disobeyed
several discovery orders. He was warned repeatedly about dismissal as a sanction for disobedience. He was given numerous chances to cooperate. And, in fact, lesser sanctions weretried . . . . Then plaintiff declared, after he had been flatly threatened with dismissal, that he‘had no intention’ of appearing at his own deposition or at discovery conferences. No explanation on why lesser sanctions would not have worked was necessary.”).
415. See Welch v. Comcar Indus., 139 F. App’x 138, 139 (11th Cir. 2005) (affirming
dismissal where plaintiff was “unequivocally warned . . . numerous times that his pro se status
did not excuse noncompliance and that failure to comply with court orders could result in
the dismissal of his action”).
416. Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986) (affirming
injunction to prevent filing suit against defendants on same claims: “The court’s power toenter such orders flows not only from various statutes and rules relating to sanctions, but theinherent power of the court to protect its jurisdiction and judgments and to control its docket.”). See also Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004)(“[T]he All Writs Act, 28 U.S.C. § 1651(a) (2000), grants federal courts the authority tolimit access to the courts by vexatious and repetitive litigants.”); Tripati v. Beaman, 878 F.2d
351, 352 (10th Cir. 1989) (“There is strong precedent establishing the inherent power offederal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.”).

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or abusive litigants, including injunctions that prohibit or severely
limit future filings in both district and appellate courts. In general,
before entering a vexatious litigant order, the district court should
give the litigant an opportunity to oppose entry of the order, indicate
what court filings support issuance of the order, find that the filings
were frivolous or harassing, and narrowly tailor the order.
Courts must, however, distinguish between the abusive or vexatious litigant and those who are simply litigious or inept. The Tenth
Circuit recognized that “filing restrictions are a harsh sanction, andthat litigiousness alone is not a sufficient reason to restrict access tothe court. . . . However, where, as here, a party has ‘engaged in a pattern of litigation activity which is manifestly abusive,’ restrictions areappropriate.”417 Likewise, the First Circuit “emphasize[d] that litigiousness alone will not support an injunction against a plaintiff, . . .
and that the use of such measures against a pro se plaintiff should beapproached with particular caution . . . . Generally, this kind of ordershould not be considered absent a request by the harassed defendants.”418
The court must also
give notice to the litigant to show cause why the proposed injunctive relief should not issue. . . . This ensures that the litigant is provided with the opportunity to oppose the court’s order before it isinstituted. Likewise, the scope of the injunctive order must be narrowly tailored to fit the particular circumstances of the case.419

A filing injunction was vacated in one case because a “general request[by defendants] for ‘other appropriate relief’ was insufficient notice to[the plaintiff], who was proceeding pro se, of the possibility that his417. In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (citation omitted). See also
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061 (9th Cir. 2007) (“[T]he simple
fact that a plaintiff has filed a large number of complaints, standing alone, is not a basis fordesignating a litigant as ‘vexatious.’”).
418. Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980) (affirming order enjoining
pro se plaintiff “from filing any lawsuit in the federal district court of Massachusetts andprohibiting the clerk of court from accepting for filing any paper submitted by her withoutauthorization by a district judge”).
419. Brow v. Farrely, 994 F.2d 1027, 1038 (3d Cir. 1993).

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resort to the courts would be precluded without initial scrutiny by the
district court.”420
Any filing injunction should be limited in scope, such as to a particular dispute if the plaintiff files numerous complaints based on thesame matter. For example, where a pro se plaintiff’s four previously
dismissed frivolous complaints and promised future complaints were
all related to a dispute over his student loan, a general filing injunction was too broad: “[T]he scope of the District Court’s order should
be limited to any complaint or other paper in any way concerning[plaintiff’s] attendance at Kings College, his student loan, the collection of that loan, or any rulings by any administrative or judicial officers concerning the aforesaid matters.”421
In addition to narrowing the subject matter, a filing injunction
should usually be limited to the courts that have been involved in theabusive litigation. An injunction that covered “every state court, every
federal district court and every federal court of appeal” and required
the plaintiffs to “seek approval from the District of Colorado before
commencing any pro se litigation in any court in the United States
on any subject matter” was vacated as overbroad for including otherfederal district and appellate courts and state courts.422
420. Gagliardi v. McWilliams, 834 F.2d 81, 82–83 (3d Cir. 1987) (per curiam). See also Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (“The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard.”). Moates is a prisonercase, but the rule is cited and followed in nonprisoner pro se cases, too.
421. Chipps v. U.S.D.C. for the M.D. of Pa., 882 F.2d 72, 73 (3d Cir. 1989). See also
Cromer, 390 F.3d at 819 (“Although Cromer has certainly proved himself to be a ‘frequent
filer’ with respect to his employment discrimination suit and resulting settlement agreement,
nothing in the record justified infringing upon his right to bring suit in unrelated cases. . . .
Prohibiting Cromer from making any filings in any unrelated suit does not address the problem at issue, and is therefore an overbroad restriction.”).
422. Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1344-45 (10th Cir. 2006). Accord
Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 191–92 (5th Cir. 2008) (agreeing withSieverding in holding that “the district court abused its discretion in extending the pre-filinginjunction to filings in state courts, state agencies,” and the appellate court). See also Van
Deelen v. City of Kansas City, Mo., 262 F. App’x 723, 724 (8th Cir. 2007) (limiting filinginjunction “to apply only to actions filed in federal district courts within this circuit,” citing
Sieverding).

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However, in a case where the pro se plaintiff had brought meritless actions “in at least five circuits in recent years,” the Second Circuit upheld limited filing restrictions on the “bringing of new actions
in all federal district courts,” not just the district in the instant case:
The district court is part of the federal judicial system and has an
obligation to protect and preserve the sound and orderly administration of justice throughout that system. The order does notprohibit Martin-Trigona from seeking access to other federal district courts; it merely requires that he inform the court in questionof pertinent facts concerning the action he seeks to bring, including
the existence of the injunction order and of outstanding litigation
against the named defendants, and that he obtain leave of thatcourt to file the action. These conditions are hardly unreasonable.
We need not wait until a vexatious litigant inundates each federal
district court with meritless actions to condition access to thatcourt upon a demonstration of good faith.423

The court held, however, that the filing injunction was improperly
extended to state courts, although it found thata spirit of cooperative federalism calls upon us to alert state courts
to Martin-Trigona’s past activities so they may take judicial noticeof matters relevant to new litigation brought by him. Upon remand, therefore, the district court should continue the provisionsof the injunction requiring Martin-Trigona to append pertinent informational materials to pleadings in state courts.424

When the district court revised the above injunction, it specified
that “[a]ll provisions of this order that personally apply to Anthony
R. Martin-Trigona shall apply equally to persons or entities acting at
his behest, at his direction or instigation, or in concert with him.”425
At least two circuits have upheld this provision against the plaintiff’s423. Martin-Trigona v. Lavien, 737 F.2d 1254, 1261–62 (2d Cir. 1984).
424. Id. at 1263 (also noting that the injunction “may entail periodic revision . . . tokeep pace with Martin-Trigona’s imaginative pursuit of new methods of harassment”).
425. In re Martin-Trigona, 592 F. Supp. 1566, 1574 (D. Conn. 1985), aff’d 763 F.2d
140 (2d Cir. 1985).

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mother when she tried to bring suit on some of the same grounds
that he had.426
The Tenth Circuit included a similar provision for a pro se litigant with a fifteen-year history of abusive filings that continued despite repeated sanctions. The appellate court issued an order statingthatappellant and/or his wife or associated trusts are enjoined from filing any further complaints in the United States District Court for
the District of Colorado containing the same or similar allegations
set forth in this complaint or in any previous case involving appellant, his wife, and/or his associated trusts cited above in this orderand judgment.427

To help keep track of abusive litigants who are subject to prefilingorders, some districts keep a “bar” list of litigants who are barredfrom filing new claims without court permission. The Northern District of California, for example, recently compiled a list of “individuals who have been found to be vexatious litigants or have some othersubstantial pre-filing restriction in place” in the district, dating backto January 1, 2005. The list of vexatious litigants includes a summaryof prefiling orders as well as links to the actual orders.428

426. See Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993) (“We certainly owe deference to such an order of a district court which has been upheld by another circuit court of appeals. The injunction entered by the Connecticut district court and upheldby the Second Circuit is a reasonable response to the abusive litigation of Anthony MartinTrigona and his allies, including his mother, and it will be enforced in this circuit as it has
been in others.”); Martin-Trigona v. Gellis & Melinger, 830 F.2d 367, 368–69 (D.C. Cir.
1987) (upholding dismissal after mother failed to seek leave of Connecticut district court tofile, as required by filing injunction).
427. Stafford v. United States, 208 F.3d 1177, 1178–79 (10th Cir. 2000).
428. See N.D. Cal. Website, “Vexatious Litigant List,” http://home.cand.circ9.dcn/op
erations/vexatious-litigant-database/. Some state courts also keep such records. See, e.g., Texas
Judicial Branch Website, “List of Vexatious Litigants Subject to a Prefiling Order,”http://www.txcourts.gov/judicial-data/vexatious-litigants.aspx (Office of Court Administration “is required to maintain a list of vexatious litigants subject to prefiling orders under
Section 11.101 of the Civil Practice and Remedies Code”); Supreme Court of Ohio & Ohio
Judicial System Website, “Vexatious Litigators Under R.C. 2323.52,” http://www.supreme
court.ohio.gov/Clerk/vexatious/default.asp.

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Pro Se Case Management for Nonprisoner Civil Litigation

G. Treatment of Individual Pro Se Litigants May Vary
Depending on Ability
District courts have the flexibility to examine the knowledge and experience of each individual pro se litigant and adjust the amount ofleeway or protection granted to that litigant accordingly. Leniency
toward any particular pro se litigant may not be warranted, or may be
only partly warranted, and will have to be considered on a case-bycase basis. For example, absent extenuating circumstances, an attorney who is proceeding pro se will likely receive no special accommodation from the court. “While pro se litigants sometimes are accorded
a measure of latitude in procedural matters, . . . no such latitude iswarranted where, as here, the unrepresented party is himself a lawyer.”429
The Second Circuit has stated that a court should take a “totalityof the circumstances” approach to pro se litigants.
[W]hile a pro se litigant should ordinarily be afforded a substantial
degree of solicitude, the exact degree thereof will depend upon a variety of factors, including, but not necessarily limited to, the specific procedural context and relevant characteristics of the particularlitigant. In some circumstances, such as when a particular pro se litigant is familiar with the procedural setting as a result of prior experience such that “it is appropriate to charge [him] with knowledgeof . . . particular requirements,”. . . it falls well within a district
court’s discretion to lessen the solicitude that would normally be afforded.430

429. Barrett v. Lombardi, 239 F.3d 23, 28 (1st Cir. 2001). Accord Tracy v. Freshwater,
623 F.3d 90, 102 (2d Cir. 2010); Andrews v. Columbia Gas Transmission Corp., 544 F.3d
618, 633 (6th Cir. 2008); Godlove v. Bamberger, Foreman, Oswald, & Hahn, 903 F.2d
1145, 1148 (7th Cir. 1990); Azar v. Nat’l City Bank, 382 F. App’x 880, 885 (11th Cir.
2010); Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007).
430. Tracy, 623 F.3d at 102–03 (citation omitted). Although Tracy is a prisoner case, itdoes not distinguish between prisoner and nonprisoner civil litigants, and has been cited in
nonprisoner litigation. See, e.g., Blasi v. N.Y.C. Bd. of Educ., 544 F. App’x 10, 11 (2d Cir.
2013) (“[T]he degree of solicitude due to pro se litigants is ‘lessened’ in situations where, as
here, the litigant has previous legal experience.” (citing Tracy)).

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III. Legal Issues Regarding Nonprisoner Pro Se Litigants

It was error, however, to withdraw the “special solicitude” for theentire case based upon the pro se plaintiff’s experience with and apparent ability in filing motions.
Tracy’s previous participation in ten federal and state actions does
not on its own justify a complete withdrawal of solicitude for theentirety of this action, including any trial that may ensue. His voluminous motion practice, even if coupled with some degree of
demonstrated competence in prior filings, is insufficient to cure thisdeficiency.

While it might “have been appropriate to withdraw Tracy’s special
status in relation to the requirements of opposing a motion for summary judgment, . . . the showing here was not sufficient to justify afull withdrawal of special status with regard to all aspects of this litigation.” Such a withdrawal should be limited “to particular matters,
as appropriate, based on Tracy’s substantial litigation experience.”431
Similarly, a litigant’s skillful handling of matters during a case,
despite claims of no special legal acumen, may warrant the withholding or lessening of any special consideration. A plaintiff who “is educated and reasonably articulate and [has] demonstrated to the District
Court his ability as a pro se litigant . . . [cannot] argue that he should
be excused from adherence to the [civil] rules because he chose toproceed pro se.”432
431. Tracy, 623 F.3d at 103–04. See also Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir.
2009 ) (per curiam) (in dicta, stating that “when a court considers whether to withdraw a pro
se litigant’s special status, it should consider not only that litigant’s lifetime participation in
all forms of civil litigation, but also his experience with the particular procedural setting presented. Absent a strong showing that a pro se litigant has acquired adequate experience moregenerally, so as to render special solicitude unnecessary and potentially inappropriate, a court
would do well to limit the withdrawal of special status to specific contexts in which the litigant’s experience indicates that he may be fairly deemed knowledgeable and experienced.”).
Cf. Turner v. Corr. Med. Serv., Inc., 262 F.R.D. 405, 410 (D. Del. 2009) (fact that defendant was “sophisticated litigant” weighed against lenient treatment).
432. Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002). See alsoFin. Instruments Grp., Ltd. v. Leung, 30 F. App’x 915, 916 n.1 (10th Cir. 2002) (although
plaintiff “claimed a limited ability to use the English language,” her “pleadings before thiscourt and the district court demonstrate an obvious legal sophistication, a complete familiarity with the rules of civil procedure, and an excellent command of the English language”; also145

Pro Se Case Management for Nonprisoner Civil Litigation“[t]he district court expressed concern that an attorney was ghostwriting Leung’s pleadings,
allowing her to misrepresent her status as a pro se defendant in order to obtain more leeway
as an unrepresented party”); Andela v. The Am. Ass’n for Cancer Research, 389 F. App’x
137, 142 (3d Cir. 2010) (“Although proceeding pro se, Andela, a doctor, exhibited morethan enough knowledge of the law to expect that he would follow the Federal Rules of Civil
Procedure and file a motion for leave to amend if he wished to add new claims to the suit.”).

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IV. Conclusion
With rules and procedures largely designed for litigation between represented parties, how do federal courts handle nonprisoner pro se litigants, who may be unaware that such rules and procedures even exist,
let alone know how to use them? This manual attempts to answer
that question by providing suggestions for steps courts can take tobetter enable pro ses to navigate the complexities of federal civil litigation. The goal here is not just to help pro se litigants understand theprocess and make courts more accessible, but also to assist the courts
by fostering more efficient movement of pro se cases, which often get
bogged down due to the understandable confusion, ineffectiveness,and lack of knowledge on the part of many, if not most, pro se litigants.
Many of the case-management practices and procedures outlinedin this manual are already used in cases where both parties are represented by attorneys. For pro se litigation, it can simply be a matter of
employing them more frequently or intensively. As Yogi Berra might
have said, “Pro se litigation is a lot like litigation with lawyers, only
more so.” For example, Rule 16 provides a range of steps judges may
take at their discretion to manage the pretrial stage of litigation. They
can vary the amount of control exercised over pretrial proceedings,
providing minimal guidance for experienced attorneys but more active case management when pro se litigants are involved. Judges
should utilize the built-in flexibility of the procedural rules, alongwith a court’s inherent authority and broad discretion over procedural matters, to try different methods to find what works best in generaland in any given case.
As one magistrate judge succinctly put it, “Be flexible. Experiment.”433

433. Stanley, supra n.117, at 7.

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The Federal Judicial Center
Board
The Chief Justice of the United States, Chair
Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee
Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of
New York
Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit
Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California
Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia
Judge George Z. Singal, U.S. District Court for the District of Maine
Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit
James C. Duff, Director of the Administrative Office of the U.S. Courts
Director
Judge Jeremy D. Fogel
Deputy Director
John S. Cooke
About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.
By statute, the Chief Justice of the United States chairs the Center’s Board, which also
includes the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.
The organization of the Center reflects its primary statutory mandates. The Education
Division plans and produces education and training for judges and court staff, including inperson programs, video programs, publications, curriculum packages for in-district training,and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations.
The Center’s research also contributes substantially to its educational programs. The Federal
Judicial History Office helps courts and others study and preserve federal judicial history.
The International Judicial Relations Office provides information to judicial and legal officials
from foreign countries and informs federal judicial personnel of developments in international law and other court systems that may affect their work. Two units of the Director’s
Office—the Information Technology Office and the Editorial & Information Services Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources.