Newsletter of the Federal Courts
Vol. 43
Number 7
July 2011
Courts Warned to Prepare for Budget Shortfall
4th of July Naturalization Ceremony at Monticello “The only birthday I ever commemorate is that
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he fiscal year 2012 funding level for the Judiciary approved by the House Appropriations Committee would result in significant staffing losses in the federal courts. In the House 2012 Financial Services and General Government Appropriations bill, the Judiciary as
of our Independence, the Fourth of July.” —Thomas Jefferson
Continued on page 2
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Photo by Jack Looney
Leveling the Playing Field: Help For Self-Filers
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n the Fourth of July, Chief Judge Glen E. Conrad of the Western District of Virginia administered the oath of allegiance to 76 new United States citizens on the West Lawn of Monticello, the historic home of Thomas Jefferson, author of the Declaration of Independence. The new citizens represented 44 countries. The naturalization ceremony was part of the annual Monticello Independence Day Celebration. A district judge from the Western District of Virginia has sworn in new citizens at Monticello on July Fourth for 49 years. Chief Judge Conrad’s participation marks his second year presiding.
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ast year, nearly 73,000 people filed civil cases in federal courts without a lawyer, a number that, for non-prisoner filers, has grown steadily in recent years. People file “pro se”—Latin for “on one’s own behalf”—because of indigence or by choice. About Continued on page 9
IN N S ID DE Mentoring Program Adds Diversity .................................3 New Rules Officer ..........................3 Civil War and the Judiciary .........4
Budget Shortfall continued from page 1
a whole would receive $6.76 billion, a net $142 million below the FY 2011 enacted appropriations level. The Judiciary’s Salaries and Expenses account would receive $213 million below FY 2011 levels. As a result, the federal courts are being urged to implement immediately a hiring freeze on vacancies and limit spending to essential purchases. “These actions will better position the courts for a large budget shortfall expected in FY 2012,” said Administrative Office Director Jim Duff. At the House bill funding levels, courts would have to cut spending on salaries by the equivalent of about 5,000 court support staff, which might be accomplished through a combination
of attrition, layoffs, furloughs, buyouts, and early outs. The Senate has not yet considered the Judiciary’s appropriations bill for FY 2012.
“••••••• ••••• • ••• • •• •• • • •• • The chairs of the Judicial Conference Executive Committee, Judge David B. Sentelle, and the Budget Committee, Judge Julia S. Gibbons, have written to all federal judges and court executives asking for their assistance in preparing for the coming reductions to the Judiciary’s funding and urging them to take whatever steps they can now to contain costs within chambers and court offices. “This situation is unlike anything was have faced in recent memory, including the cost-containment efforts we initiated in fiscal year 2004,” they
wrote, “and could fundamentally change how we perform our constitutional and statutory responsibilities.” The Executive Committee and the Budget Committee are taking the lead in working with the other Conference committees on additional cost-containment efforts. Judiciary employees, led by judges and unit executives, are being asked to identify ways to reduce operational and administrative costs. Sentelle and Gibbons stressed the need for preparation: “It is critical that we prepare for the likelihood that, in spite of our best efforts, Congress will not be able to fund our needs . . . it will be necessary for all of us to take extraordinary steps to minimize the impact, not only on our staff, but the entire judicial process.”
Fogel Selected to Head Federal Judicial Center
Judge Jeremy Fogel
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he Board of the Federal Judicial Center (FJC) has selected Judge Jeremy Fogel, of the U.S. District Court for the Northern District of California, to be the Center’s tenth director.
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Chief Justice John G. Roberts, Jr., who chairs the FJC Board, said, “The Board selected Judge Fogel from a number of exemplary candidates. He is an experienced judge and educator who has been deeply involved in the Center’s programs over the past decade. The Board is confident that Judge Fogel will be a worthy successor to Judge Barbara J. Rothstein, whom I thank for her eight years of dedicated service as Center director.” Rothstein will return to the bench and resume her duties as a U.S. district judge. Upon being notified of his selection, Fogel said, “I am humbled and deeply honored, and I am looking forward to this opportunity to serve.” He hopes to undertake his new responsibilities in October 2011. Fogel was appointed to the federal bench in 1998, prior to which he served
“I am humbled and deeply honored, and I am looking forward to this opportunity to serve.”
nearly seventeen years in the California state courts. He has served as an FJC faculty member since 2001 and as a lecturer at Stanford Law School since 2003. He received an A.B. degree from Stanford University in 1971 and a J.D. degree from Harvard Law School in 1974. The FJC (www.fjc.gov) was created by Congress in 1967 to “further the development and adoption of improved judicial administration in the courts,” through research and education.
Mentoring Program Adds Diversity to CJA Panel
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n innovative mentoring program in the Southern District of New York is giving local practitioners federal court experience and in the process giving more minorities and women the skills to serve on the district’s Criminal Justice Act (CJA) panel. The district’s Criminal Justice Act Mentoring Program pairs experienced attorneys from its CJA panel as mentors to attorneys who have an interest in applying to the panel but who lack knowledge of the federal system. The mentees learn by assignment to a case of sufficient complexity to warrant the services of two attorneys. “They’re sitting at their mentor’s elbow,” said Judge John G. Koeltl, chair of the district’s Defender Services Committee, “but it’s very proactive. They’re there to observe, but also to do substantive work. They make contributions to cases, in terms of writing and court appearances.” A typical “teaching” case would be one where the mentor received a regular CJA appointment that presented many of the representation issues an attorney might encounter in a federal case, including bail and release, discovery review, guidelines calculation and sentencing factors, plea negotiation, client interviewing and conferences, legal research and writing, and possible evidentiary hearing or trial. In addition, the mentees work with their mentors on other CJA cases. Mentees are required to provide the first 15 hours of service free of charge. After that, they bill for their hours at a rate that is substantially lower than the hourly rate for court-appointed attorneys. There’s also an educational requirement. Mentees must complete a minimum of six continuing legal education credits that focus on federal criminal practice skills and attend seminars and workshops. Completing the program is no guarantee of being appointed to the CJA
panel, which is a highly selective and competitive process. But the results are encouraging. Over the last two years, four of the program’s “graduates” have been selected to serve on the CJA panel, adding to the panel’s diversity. Koeltl works with co-directors Peter Quijano and Anthony Ricco, two experienced CJA attorneys who developed the program and who are responsible for overseeing the recruitment of mentors and mentees. They designed the program to prepare attorneys for the challenges of federal practice and eventual CJA panel representation. The Southern District of New York’s Board of Judges adopted the mentoring program in 2008. “There are different substantive law and different procedures in federal practice,” said Koeltl, “and many state court practitioners do not qualify for the panel because they lack federal experience.” “But we’re not here to train someone for trial,” adds Quijano. “The program concept is to find experienced state practitioners and help transition them
to federal practice. Without background, without knowledge of the resources, protocols and procedures, and rules of federal practice, an attorney could be making critical mistakes and not even be aware.” In fact, mentees need to learn so much, the program length has expanded from 12 months to 18 months. The number of mentors per class also has increased. Other changes have been made as mentors and judges see what works best. The district’s judges are supportive, and there has been interest from other districts in beginning their own mentoring programs. “Our effort is always to get the best lawyer for a defendant,” said Koeltl. “The program entails a lot of work, but the quality of applicants has been sterling.” “We’re very excited and optimistic about the program,” said Quijano. “This is what we tell applicants: if we place you on the panel, in three to four years, you will be one of the outstanding practitioners in federal court—not just an outstanding CJA attorney.”
New Rules Committee Officer Selected
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onathan C. Rose, of counsel with the Washington office of Jones Day, has been selected as the new Rules Committee Officer for the Administrative Office. He succeeds John K. Rabiej who retired in January. Rose began his federal service as a White House staff assistant, after which he served in various key White House and Justice Department positions. For the past 27 years he has been a partner and, more recently of counsel at Jones Day, where his practice focused on government regulation, international litigation, and national security matters. Rose is a graduate of Yale University and Harvard Law School.
Jonathan C. Rose
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Civil War Tore Apart the Federal Judiciary, Too
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s the United States marks the 150-year anniversary of the start of the Civil War that so tested our nation, it must be noted that the long and bloody fight had a similar effect on the federal court system and its judges—a tearing at the very fabric of American justice. “The national judiciary had never faced a crisis of such magnitude,” wrote author Mark Lerner in his 2006 book, This Honorable Court. “Judges had to deal with potential treason, tensions between civil liberties and national defense, and the legal implications of federal military measures.” His book states that the broad wartime powers employed by President Abraham Lincoln’s administration forced a significant change to the role of the federal courts: “The Civil War bench was less concerned with relationships with state law and authority than earlier courts. Its focus was chiefly national.” Many future judges saw military duty during the war, on both sides. Many judges resigned from their lifetime appointments and joined the judiciary of the Confederate States of America. Others became judges under extraordinary circumstances. Here are some of their personal stories:
U.S. District Judge Andrew Magrath, District of South Carolina Appointed by President Franklin Pierce in 1856, Magrath addressed a meeting of a grand jury on November 6, 1860—the day Lincoln Photo Courtesy of the South Caroliniana Library, University was elected. He waited of South Carolina until the end of the jury’s work to make a personal announcement. 4
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“Feeling an assurance of what will be the action of the state, I consider it my duty, without delay, to prepare to obey its wishes,” he said, according to William Robinson Jr.’s 1941 book, Justice in Grey. “That preparation is made by the resignation of the office which I have held. For the last time, I have, as a judge of the United States, administered the laws of the United States within the limits of the state of South Carolina.” With that, Magrath tore off his robe and left the bench. Many who were present in his courtroom wept. Six weeks later, South Carolina seceded from the Union and declared its national independence. Magrath subsequently served during the war as a judge in the District of South Carolina for the Confederate States of America and then as South Carolina’s
governor. After the war, he practiced law in Charleston, from 1865 to 1893.
U.S. District Judge Thomas Boynton, Southern District of Florida When Florida seceded in early 1861, the city of Key West— at the southern tip of the Confederacy—remained a Unionist stronghold. U.S. District Judge William Marvin, a New York native, presided until his 1863 resignation despite many suspicions that he harbored Southern sympathies. In From Local Courts to National Tribunals, authors Kermit Hall and Eric
Rise tell how replacing Marvin presented Lincoln with a distinct problem. His first two appointees to the job never arrived in Key West to hold court. On October 13, 1863, Thomas Boynton, the local district attorney, wrote to Washington and urged that the Southern District backlog of cases be eased by letting a Northern District of Florida judge preside over them. Soon thereafter, Boynton received a recess appointment to the job from Lincoln. The President nominated Boynton to the same position in early 1864, and he was confirmed by the Senate. He was 25 when his bench service began, and he remains the youngest person ever appointed to an Article III judgeship. He served until 1870, when he resigned in poor health.
U.S. District Judge West Humphreys, Western, Middle, and Eastern Districts of Tennessee The Eastern and Western Districts were created by Congress in 1802, but one judge presided over both. When the Middle District was added in 1839, one judge presided over all three. It stayed that way through the Civil War, and a second federal judge wasn’t appointed for Tennessee until 1878. Humphreys, appointed to his threedistrict duties by President Pierce in 1853, pledged his allegiance to Tennessee and became a judge for the Confederate States in 1861, but refused to surrender his U.S. court commission. He was impeached by the House and convicted by the Senate in 1862, ending his U.S. judicial service. After serving as a Confederate judge for four years, Humphreys took the oath of allegiance to the United States after the war and received a pardon from President
Johnson. He practiced law in Nashville until 1882 and became a crusading champion of temperance.
U.S. District Judge Richard Field, District of New Jersey A strong supporter of Lincoln and the Lincoln administration when appointed to the federal bench in 1863, Field wasted little time in establishing that he would not flinch from hearing cases against antiwar dissidents. “For the last two years, we have been engaged in a war, which, whether we consider its character, its causes, or the consequences which are likely to flow from it, cannot but be regarded as one of the most remarkable that the world has ever witnessed,” he stated in open court while making a charge to a grand jury. “This war must be prosecuted with vigor until the authority of the Government is respected and obeyed over every foot of territory belonging to the United States, or we must submit to ruinous and ignominious peace.” But U.S. prosecutors did not win all their cases. Author Lerner states, “The record indicates that all trials followed due process: defendants had counsel, rules of proceeding were as usual, and the judge exerted no pressure for particular verdicts. As eager as he was to promote support for the war effort, Field evidently did nothing overt to subvert the judicial process… However furious he was with those who opposed the war effort, Field never allowed anger or passion to overcome a commitment to the law or at least a grudging regard for civil liberties.”
Sixth Circuit Display: “They Were Soldiers Once . . .” Eli Shelby Hammond, a lieutenant and adjutant in the 14th Tennessee Cavalry, served as a general’s aide until he was captured and interned in a Union prison. Hammond was released after seven months as part of a prisoner exchange,
and returned to fight for the Confederate Army until the end of the war. Thirteen years after the war, in 1878, he was appointed by President Rutherford B. Hayes to the U.S. District Court for the Western District of Tennessee, where he served until his death in 1904. The details of Hammond’s war service is one of 19 vignettes of jurists with ties to the U.S. Court of Appeals for the 6th Circuit on display at federal courthouses throughout the judicial circuit, which today encompasses Tennessee, Kentucky, Michigan, and Ohio. The display, created by Circuit Historian Rita Wallace and librarians throughout the circuit, features biographies of judges who served the North and the South. “It was a collaborative effort to give the public a look into our court in this Civil War anniversary year,” Wallace said. The display can be seen in courthouses in Cincinnati, Cleveland, Toledo, Columbus, Detroit, Grand Rapids, Louisville, Nashville, Memphis, and Chattanooga. Charles Clark was a private in the 8th Tennessee Cavalry from 1862 to 1865, 30 years before being appointed as a district judge in Tennessee; Albert Thompson was a captain in the 8th Pennsylvania Volunteer Infantry from 1861 to 1863, 35 years before his appointment to the Southern District of Ohio; and William Hays served as a lieutenant colonel in the 10th Kentucky Infantry for most of the war before joining the federal bench in 1879 as a district judge in his home state. Hays took command of his Judge William Hays regiment when Colonel John Marshall Harlan—who in 1877 became a U.S. Supreme Court justice and shortly thereafter a circuit justice for the 6th Circuit—resigned in 1863. Continued on page 6 The Third Branch Q July 2011
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Civil War Tore Apart the Federal Judiciary, Too continued from page 5
Harlan, one of three future Supreme Court justices/circuit justices for the 6th Circuit to see Civil War action before his judicial career, led his regiment in protecting the LouisJustice John ville and Nashville Marshall Harlan Railroad from John Hunt Morgan’s irregular cavalry, known as Morgan’s Raiders. The Raiders became infamous in the North for wreaking havoc from Nashville to the Upper Ohio Valley, sabotaging Union railroads, bridges, and communications stations. One of the Raiders was Horace Lurton, who in 1893 was appointed to the 6th
Circuit Court of Appeals and in 1910 became a U.S. Supreme Court justice. For a year, he served on the nation’s highest court alongside Harlan. Lurton had been Judge Horace Lurton imprisoned twice before escaping from his confinement in Columbus, Ohio, and joining up with Morgan’s Raiders. He sold a watch his father had given him to purchase the required horse. Supreme Court Justice and 6th Circuit Justice Stanley Matthews (1881– 1889) once served for Justice Stanley two years as a Lieutenant Matthews
Sixth Circuit Display Tells Civil War Story
Colonel in the 23rd Ohio Volunteer Infantry. His tent mate was a future U.S. President, Colonel Rutherford B. Hayes. These men are among the thousands of men and women who have served the federal Judiciary and helped make it a model for court systems worldwide. In the preface to Justice in Grey, Robinson 70 years ago wrote, “In no other country of the world has the judicial branch of government been entrusted with such power as in America. Its influence, protecting and prohibiting, extends into every field of national life; upon the pages of its records are written stories of peace and war, of industry and commerce, of individual behavior and collective order— stories comic and tragic, dramatic and melodramatic—as well as the cold logic of the law.” The Civil War itself provided dramatic stories of the federal courts and those who served them.
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ignettes of 19 jurists with ties to both the Civil War and the judicial circuit that encompasses Kentucky, Michigan, Ohio, and Tennessee are on display at federal courthouses throughout the circuit. Circuit Historian Rita Wallace, pictured, worked with librarians throughout the circuit to tell the stories of judges who served the North and the South. Staff assisted in research and created the poster for the display, as well as booklets and bookmarks. The display is called “They Were Soldiers Once.”
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Growth of Kiosk Program An Aid to Officers
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probation and pretrial services program that uses kiosks to gather routine reports required of clients has quietly become a powerful resource and timesaver. Begun as a pilot in 2008 with kiosks in nine probation and pretrial services offices, the program has spread to 27 districts and grown to 79 kiosks. Last quarter over 10,000 offenders on supervised release and defendants under pretrial supervision used one of the kiosks to submit routine status reports required as a condition of bail or post-conviction supervision. The kiosks use an electronic reporting system and are located in probation and pretrial services offices. A client goes to the office, verifies his or her identity with a fingerprint scan at the kiosk, and answers a series of questions displayed on the touch screen. Defendants respond to about nine questions while offenders may respond to 30 or more questions, although some responses simply require confirmation that the data is correct. The reports are sent by email to the officer within seconds, with the client’s “yes” responses to questions about drug use, or contact with law enforcement, for example, moved to the top of the report for the officer’s immediate attention. The reports are downloaded to the Probation/Pretrial Services Automated Case Tracking System (PACTS). Entering the data electronically saves time by eliminating inaccuracies in re-keying. Time not spent generating reports is time that can be spent one-on-one with clients focusing on problems. Officer reaction to the electronic collection of client reports has been positive. “The kiosk program has been a great time saver for officer and administrative staff,” said Chief Probation Officer Michael Fitzpatrick in the Southern District of New York. Over a three month period in Fitzpatrick’s district, kiosks at
three court locations allowed nearly 1,500 clients to report their status electronically. Deputy Chief Pretrial Services Officer Carlos Salinas in the Western District of Texas was there when the pilot began and has seen the program grow. Today, seven of the district’s nine divisional offices have kiosks. “Overall it’s a good program and our officers like it,” said Salinas, “especially in locations where we’re short on staff. If the only officer at a divisional office is on a home visit or is called to court, the defendant can still come in and report at the kiosk and the officer will be notified, allowing the officer to contact the defendant at a later time. There’s less waiting time. And our El Paso office really likes the Spanish question sets that were added to the program last year.” Although the program has grown out of the pilot stage, there are still adjustments and upgrades in the works. In the next month, functionality will be added to the kiosk reporting system to allow an officer to leave a message for a client after he or she logs in. The next anticipated feature will be kiosks outfitted with scanners so that clients can scan pay stubs
Kiosks in the probation and pretrial services offices of 27 districts were used last quarter by over 10,000 offenders and defendants to submit routine status reports.
or doctor’s notes along with their reports. The program also has evolved to allow supervision reporting by internet. Clients with computer access can go to a secure website, log in using a password, and respond to the same series of questions they would find at a kiosk. An additional application that will allow supervision reporting by telephone will be available sometime in late 2011.
John Roll Courthouse Groundbreaking
Ground was broken on the new Judge John M. Roll Courthouse in Yuma, Arizona, last month. Left to right, GSA’s Jeffrey Neely, Ron Barber, district director for U.S. Representative Gabrielle Giffords (D-AZ), Magistrate Judge Jay R. Irwin (D. Ariz.), Chief Judge Roslyn O. Silver (D. Ariz.), Robert Roll, Judge Roll’s son, U.S. Representative Raul Grijalva (D-AZ), and Yuma Mayor Alan Krieger.
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July Judicial Milestones Appointed: Claire C. Cecchi, as a U.S.
District Judge, U.S. District Court for the District of New Jersey, June l4.
Retired: U.S. Senior Court of Appeals Judge Deanell Reece Tacha, U.S. Court
of Appeals for the Tenth Circuit, June 1.
Appointed: Esther Salas, as a U.S.
District Judge, U.S. District Court for the District of New Jersey, June 14.
Retired: U.S. Senior District Judge Honorable Ernest C. Torres, U.S.
Appointed: E. Scott Frost, as a U.S.
District Court for the District of Rhode Island, June 1.
Magistrate Judge, U.S. District Court for the Northern District of Texas, June 16.
Retired: U.S. Magistrate Judge Philip R. Lane, U.S. District Court for the
Northern District of Texas, June 15.
Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600
Visit our Internet site at www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers
Appointed: Maureen P. Kelly, as a
U.S. Magistrate Judge, U.S. District Court for the Western District of Pennsylvania, June 13.
Retired: U.S. Magistrate Judge James Larson, U.S. District Court for the
Northern District of California, May 31.
Appointed: Denise K. LaRue, as a U.S.
Magistrate Judge, U.S. District Court for the Southern District of Indiana, May 24. Senior Status: U.S. Court of Appeals Judge Maryanne Trump Barry, U.S.
Court of Appeals for the Third Circuit, June 30. Senior Status: U.S. Chief District Judge Stephan P. Mickle, U.S. District Court
for the Northern District of Florida, June 22. Senior Status: U.S. Court of International Trade Judge Judith M. Barzilay, U.S. Court of International
Trade, June 2. Elevated: U.S. District Court Judge J. Curtis Joyner, to Chief Judge, U.S.
District Court for the Eastern District of Pennsylvania, succeeding U.S. District Judge Harvey Bartle, III, June 7.
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Retired: U.S. Magistrate Judge Bernard Zimmerman, U.S. District Court for the
Northern District of California, May 31.
MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli, AO
Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.
Deceased: U.S. Senior Judge Jaime Pieras, Jr., U.S. District Court for the
District of Puerto Rico, June 11.
JUDICIAL BOXSCORE
As of July 1, 2011 Courts of Appeals Vacancies ..................................17 Nominees.................................10 District Courts Vacancies ..................................71 Nominees.................................43 Court of International Trade Vacancies .................................... 1 Nominees................................... 0 Courts with “Judicial Emergencies” .........36 Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx
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Sixty percent of the courts responding to the survey provide training for clerk’s office staff on how to deal with pro se litigants. Nearly all the district have trained staff in the kinds of assistance they may provide. “It is my duty as a judge to hear from both sides, to follow procedures, and to rule correctly and fairly on a level playing field,” said Matz. “But pro se filers often are confused, frightened, and lacking the confidence to negotiate what is a complicated system.” What is being done to help these litigants? What resources are available for pro se litigants—either at the courthouse or on-line? What different approaches are taken by courts to assist pro se filers? The Judicial Conference Committee on Court Administration and Case Management (CACM) asked the Federal Judicial Center (FJC) to survey chief district judges and clerks of court on the assistance their district courts provide to pro se litigants. “As district courts face the challenges of managing and adjudicating cases filed by
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prisoner or non-prisoner pro se litigants, which encompass more than 25 percent of the civil cases, CACM thought that a survey of creative and best practices employed by a number of courts would well serve and inform all courts,” said Judge Julie Robinson (D. Kan.), CACM chair. A review of the FJC’s survey of clerks of court suggests that assistance for non-prisoner pro se litigants in the courts is both highly visible and accessible– starting on-line and in the clerk’s office. The most common form of help by the clerk’s office for pro se litigants is procedural assistance by office staff, who must remain mindful of the prohibition against giving legal advice. Most districts spread the responsibility for pro se cases across all clerk’s office staff, although 27 percent of the courts surveyed have two to five staff members with substantial responsibility for pro se cases. In the public areas of clerks’ offices, pro se litigants will find a variety of resources and services, either on paper or on the district’s website. They can learn about the jurisdiction of the federal courts, how to access the Judiciary’s Case Management/ Electronic Case Files (CM/ECF) system and how to protect private information in papers filed with the court. Some courts also provide sample or template pleadings, motions and discovery requests, and compile frequently asked questions for pro se filers.
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two-thirds of all pro se cases are filed by prisoners. “Who are pro se filers? The short answer is they often are litigants who can’t afford an attorney,” said Judge A. Howard Matz (C.D. Calif.), who supports assistance programs for pro se filers in the Central District of California. “Increasingly,” he adds, “we also see pro se litigants who are defendants in cases, not just plaintiffs.” These may be individuals sued by corporations in intellectual property rights cases, or by banks in foreclosure cases, for example.
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Number of Pro Se Petitions Filed
Leveling the Playing Field: Help for Self-Filers
Top 20 Districts Courts for Pro Se Petitions FY 2010
“The Eastern District of Missouri also maintains a Self Help Resource Center in the clerk’s office with access to the E Pro Se Computer program. It is a quiet place to compose documents and gather information about bar association lawyer referral services and a wide variety of community programs. Visitors also have access to publications and guide materials that explain court procedures and topics on substantive law.” Clerk of Court Jim Woodward
The clerk’s office often is the best place for a non-prisoner pro se litigant to find a handbook or information package developed to help pro se litigants. Eighty percent of the 90 district court clerks responding to the FJC survey reported that their districts make such materials available at the clerk’s office. For prisoner pro se litigants, 70 percent of the responding districts will mail them a copy of such materials. Need to know about local rules and procedural forms? The information is readily available, usually on a court’s website. Eighty-four percent of the clerks reported that their districts provide free Continued on page 10 The Third Branch Q July 2011
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Leveling the Playing Field: Help for Self-Filers continued from page 9
public access to computers in the clerk’s office. On these computers, 67 percent of the districts provide access to CM/ECF. Half provide access to their own website and to PACER. While computer access is free, most courts charge a fee for printing from the computers.
“ . . . A disturbingly large number of litigants come to the Clinic with basic 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.” Annual Report, The Public Counsel Federal Pro Se Clinic Central District of California
In 41 percent of the district courts responding, non-prisoner pro se litigants may file electronically through CM/ECF, and in 39 percent of the courts they may access the docket and pleadings in an on-going case through CM/ECF. A small percentage of courts, 11 percent, also provide e-filing software on the public access computers to assist pro se filers in preparing pleadings or other submissions. In the Eastern District of Missouri, pro se litigants have help from a user-friendly, interactive web application called E Pro Se. Through the user’s responses to a series of questions, the essential information is pulled together into a document that tells the court about the type of claim. Typically, the software is used to create documents required for Social Security, employment, and civil rights complaints. It’s available online, so pro se filers can 10
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use E Pro Se anywhere they have internet access, and only need to visit the court to file the document. Non-prisoner pro se litigants in a number of courts will encounter warnings that their case may be dismissed if they fail to file all the necessary documents, fail to file on time, or fail to pay any required fees. For that reason, a little over half of the district courts appoint counsel to represent a pro se litigant for the full case, with 56 percent of the districts also appointing counsel in limited circumstances, such as in a mediation or trial. Fifty-five percent of the districts do both. A quarter of the districts have a provision in their local rules for payment of costs. Forty-nine percent of the courts conduct a review to determine the need for counsel. A third of the courts also provide pro se litigants with handouts or a web notice about obtaining free or low-cost legal services or information about retaining an attorney. Local rules or general orders in 14 percent of the districts require pro bono service from members of the bar; 21 percent maintain pro bono panels or lists of attorneys willing to serve on a pro bono basis. A small number of courts maintain an automatic e-mailing list to alert the bar to a case needing representation. Altogether, 90 percent of the ninety clerks responding to the survey report that their districts have taken one of these steps to help pro se litigants find pro bono counsel.
Help Desks & Guides for Pro Se Litigants In FY 2010, the Central District of California had the highest number of pro se filers of all federal district courts. The district’s website welcomes these filers to the court with information organized by topic, with links to court forms, and with a helpful brochure. The website also directs individuals representing themselves to the Pro Se Clinic located in the U.S. Courthouse in downtown Los Angeles. The Clinic is staffed by a nonprofit public interest law office, Public Counsel. The Clinic’s
attorneys, who are not court employees or officials, provide information about the procedures, filing requirements, and deadlines involved in a federal civil lawsuit; general guidance on how to draft complaints, responses, motions and other pleadings; answers to jurisdiction and venue questions; information about discovery procedures; and alternatives to litigating in federal court. According to the Clinic’s first annual report, covering the period from February 2009 to February 2010, most of the substantive issues raised by Clinic visitors arise from foreclosures and civil rights, employment discrimination, and intellectual property claims.
About a fifth of the districts responding to the survey have established mediation procedures for non-prisoner pro se litigants; a smaller number also provide mediation for prisoner pro se litigants.
Pro se litigants in the U.S. District Court for the Northern District of Illinois may make an appointment at the clerk’s intake desk to see an attorney in the court’s Pro Se Assistance Program. With special funding from the Chicago Bar Foundation, attorneys from the Legal Assistance Foundation of Metropolitan Chicago provide pro se litigants with information about federal court procedure; assistance preparing certain pleadings, motions, or other court documents; and help in accessing other sources of information about legal issues. The Northern District of Illinois’ program was the model for a program initiated by Federal Court Bar Association of the Northern District of New York where the bar maintains an office and employs a program manger to oversee volunteer attorneys who assist civil pro se litigants. “We’ve found that, of those who filed claims with the court, the pleadings
were more properly constructed, saving time for both chambers and the clerk’s office,” said Clerk of Court Larry Baerman in the Northern District of New York. To help un-represented individuals filing for bankruptcy in the District of New Jersey, the bankruptcy court there has developed and is piloting a web application, Pro Se Pathfinder. “After BAPCPA, filing for bankruptcy became more expensive for individuals,” said Bankruptcy Clerk of Court Jim Waldron, “while fewer bankruptcy lawyers were available to take a case. Our pro se initiative was our way of making filers aware of what it takes to file a petition while improving the accuracy of the data they submit in their petitions. It is as comprehensive as we could make it with references to every resource we could find. We were careful not to cross the ‘legal advice’ threshold that all clerks’ offices must avoid.” In the pilot, unrepresented filers entering the court’s web page find information and forms they’ll need to file. By responding to a series of questions, they may electronically complete and submit a bankruptcy petition. “It’s a fine balance,” Waldron admits. “Bankruptcy is so very complicated, we don’t encourage individuals to file without an attorney. But so many pro se filers come in with petitions that are all wrong. At least this gives structure to their filing.” In the District of Arizona, approximately 20 percent of all bankruptcy litigants file pro se. “Due to the complexity of the bankruptcy means test and how complicated the process of filing for bankruptcy is, most people get some kind of help filing—sometimes on the Internet or through individuals who specialize in filling out bankruptcy forms,” said Bankruptcy Judge Eileen Hollowell (D. Ariz.). “But ‘help’ may not mean competent help. The question is, how do we get people information they can and will use to help them make good choices.”
The U.S. Bankruptcy Court for the District of Arizona sponsors a “self-help center” in the Tucson and Phoenix courthouses staffed by volunteer lawyers from the local bar.
The U.S. Bankruptcy Court for the District of Arizona sponsors a “self-help center” in the Tucson and Phoenix courthouses staffed by volunteer lawyers from the local bar. “We make a lot of information and help available at the clerk’s desk for pro se filers,” said Hollowell, whose district also has a law clerk help coordinate pro se services. “Before they see an attorney at the help center, we ask pro se filers to watch an online video on bankruptcy. Frankly, it is in the court’s self interest to provide pro se filers with as much information about the process as possible. Sometimes, though, as a bankruptcy judge I can only continue the matter for 30 days, give them the number of the self-help center and hope they make the contact.” The Administrative Office Bankruptcy Judges Advisory Group (BJAG) has developed a Judiciary website just for pro se bankruptcy filers at www.uscourts.gov/ bankruptcycourts/prose/html. The website is straightforward about the complexities of a bankruptcy case, and the desirability of proceeding with an attorney. For example, under current bankruptcy law, prepetition credit counseling generally is required. Failure to get counseling before filing the petition commencing the case may result in dismissal of the case. As the website warns, “While individuals can file a bankruptcy case without an attorney or ‘pro se,’ it is extremely difficult to do it successfully.” BJAG also has written a guide, “Assisting Pro Se Parties in Bankruptcy Cases,” just for bankruptcy courts. The guide highlights some of the things bankruptcy courts can do to educate pro se filers, the filing
information and services filers may need, and where best to make the guidance available to reach the pro se audience.
Prisoner Pro Se Generally fewer online resources are available to prisoner pro se litigants, who file one fourth of all civil cases annually. Prisoners filing pro se who do not have internet access must rely on the courts to mail such materials as the rules of federal procedure or forms. Seventy of the 90 districts surveyed did not know if prisoners had access to a computer. Twenty districts reported that prisoners’ access is limited to preparing pleadings and conducting legal research. None of the districts reported that prisoners had access to the court’s website, PACER or CM/ECF.
Although the courts of appeals were not surveyed, last year 27,209 appeals involved pro se litigants. The largest source of pro se appeals are prisoner petitions. Some districts follow the example of the Eastern District of Pennsylvania which sends forms and information on the federal judicial system to the federal and state correctional institutions, where they are made available to inmates in the prison library. The district, where 16.5 percent of all non-asbestos civil cases are filed by prisoners, also has a local rule that assigns all pro se civil rights cases filed by an individual to the same judge. “This gives a judge a familiarity with the plaintiff and his or her case,” said Clerk of Court Michael E. Kunz. It also helps identify frequent or frivolous filers. In the mid-1970s, as the number of prisoner pro se petitions began to increase substantially, the Judicial Conference began a pro se law clerk pilot program to assist the courts with this litigation. Today, nearly all Continued on page 12 The Third Branch Q July 2011
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Help for Self-Filers continued from page 11
districts have permanent pro se law clerks to help prisoner pro se litigants and 28 percent of the districts limit their work to those cases. Unlike attorneys who represent their clients, pro se law clerks assist the court by
helping pro se filers understand the rules, the process of filing and how to move a complaint through the court system. Over the years, pro se law clerks have become experts at helping to expedite cases, save judges time, and assist their courts in fully and fairly addressing each petition.
Pro Se E-Filing for Prisoners
T
o help with the mountain of paper generated in a prisoner petition—sometimes as many as 50 copies of a document to serve each named defendant—the U.S. District
Court for the Central District of Illinois began a project with the Illinois Department of Corrections (IDOC) to receive prisoner filings electronically. The prison library staff scan the inmate’s document into a digital sender, which converts to PDF format and emails the document to the court. Case managers then e-file in CM/ ECF. The Central and Southern Districts of Illinois have partnered on this project and expanded to nine IDOC facilities. Originally, the project was intended to handle prison petitions challenging an inmate’s conditions of confinement or other alleged civil rights violation, but now includes other types of action, such as habeas corpus petitions.
Under Development According to the survey, 30 of the 90 respondents reported that their districts are currently developing other measures to assist with pro se litigation. Many will revise, expand, or create information items or systems—for example, update handbooks, and create a pro se website. Others will expand or create various forms of personal assistance—for example, create a pro se help desk staffed by pro bono attorneys, develop a more formal pro bono panel, and create a more formal mediation process. Nine of the respondents indicated their districts are exploring use of e-filing. One district is setting up a Pro Se Committee to deal with issues raised by the public and the bar. The CACM Committee hopes that the FJC survey findings, with examples of programs and services provided by district courts, will prove useful to courts looking for more ways to help their pro se litigants.