The Federal Rules of Pro Se Procedure

Abstract

Last year, more than 10% of litigants in non-prisoner civil cases filed federal lawsuits without lawyers. In some district courts, unrepresented litigants make up almost one-third of the docket. Yet, the Federal Rules of Civil Procedure single out pro se litigants only once, and not since 2011 has the Supreme Court considered the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking govern thousands of such litigants each year.

This Article is the first work of legal scholarship to illuminate this neglected corner of the federal courts. It collects and analyzes every pro se-specific rule and practice—nearly 500 in all—in the 94 federal district courts. The Article first categorizes these rules and then digs deeper into the most resource-intensive practice—the appointment of counsel—in the roughly 40 district courts that maintain a pro bono program. In doing so, the Article unearths the procedures unrepresented litigants must follow when they walk into federal court.

In addition to its descriptive contribution, the Article pushes the bench, bar, and academy to revisit these federal rules of pro se procedure. It considers how to improve the process of making such local rules to better consider the needs of pro se litigants. The Article does not just break new scholarly ground—it also points the way forward for civil justice reform in the federal courts.

Keywords: federal courts, inequality, civil procedure, access to justice