The Federal Rules of Pro Se Procedure

Abstract

In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the Supreme Court has not considered the question of what process is due to unrepresented civil litigants in over a decade. Many judicial opinions in these cases go unpublished, and many are never appealed.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 governs thousands of such litigants each year.

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

In addition to its descriptive contribution, this 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. This Article points the way forward for civil justice reform in the federal courts.

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