Pro Se - Scott Key & Associates

Abraham Lincoln is often credited with the saying that “he who represents himself has a fool for a client.” If you regularly defend municipalities in §1983 cases, you’ve likely noticed a sharp increase in pro se litigation over the past few years — and many of those self-represented plaintiffs are proving Lincoln’s point.

A major factor driving this trend is the widespread availability of AI tools. While AI itself is not the problem, many pro se litigants are misusing it to generate complaints and motions that would have been far more difficult — and often impossible — to produce just a few years ago.

The resulting pleadings are often long, rambling, and filled with a confusing mix of legal-sounding language and pure gibberish. They frequently qualify as classic “shotgun pleadings” — lumping every conceivable claim against every conceivable defendant with little organization or factual support.

But the challenges go well beyond poor drafting. Many of these pro se plaintiffs are emotionally charged, deeply angry, and sometimes outright hostile. In some cases, they are genuinely frightening. Defense counsel and municipal clients often face legitimate safety concerns about these individuals showing up at city hall, police stations, or even counsel’s office.

Compounding the difficulty is how courts typically respond. Federal judges often give pro se pleadings “less stringent standards” than those drafted by lawyers. While this rule stems from a desire for fairness, in practice it frequently creates an uneven playing field. Deadlines are extended, vague allegations are tolerated, and cases that should be resolved early on the pleadings sometimes drag on for years.

The result is a uniquely draining type of litigation for municipalities and their counsel — one that consumes significant time and resources while creating real emotional and practical burdens for city staff and law enforcement.

This is the first in a series of posts exploring these challenges in more depth and offering practical strategies I’ve learned from years of litigating against pro se plaintiffs in civil rights cases.

From Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded.

Professor Hashimoto’s Argument

The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.

Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.

Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.

While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.

Tag Archive for: Pro Se

The Rise of Pro Se §1983 Litigation: Why These Cases Are So Difficult

Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

Professor Hashimoto’s Argument

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