History of Self Representation in Civil Cases in America
The following was excerpted from Iannaccone v. Law, 142 F.3d 553 (2d Cir. 1998):
The right to proceed pro se in civil actions in federal courts is guaranteed by 28 U.S.C. § 1654, which provides: "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." Section 1654's guarantee derives directly from the Judiciary Act of 1789.
First introduced in the Senate on June 12, 1789 as part of Senate Bill [S-1], the right to self-representation appeared in section 31 of the Bill. But when the Bill became law, on September 24, 1789, the right was moved to section 35, which reads as follows: "That in all the Courts of the United States the Parties may plead and manage their own causes personally or by the assistance of such Counsel or Attornies at law as by the rules of the said Courts respectively shall be permitted to manage and conduct causes therein." V Documentary History of the First Federal Congress of the United States of America 1789-1791 1150, 1165, 1193 (1986). As can be seen, the right to self-representation has remained constant for over 200 years.
The framers of our Constitution thought self-representation in civil suits was a basic right that belongs to a free people. Although the Supreme Court alluded to civil pro se representation in Faretta v. California, 422 U.S. 806, 812-13 (1975), the Court there focused its discussion on the right to represent oneself as a defendant in a criminal case, id. at 813 et seq., which the Constitution's Bill of Rights guarantees.
In a criminal prosecution, a pro se party of course may only appear as a defendant. In a civil case, a person may appear pro se as either a plaintiff or defendant. And, as noted, the right of self-representation in one case is protected by the Constitution, and in the other, simply by statute. Further, in contrast to criminal defendants, civil litigants unable to afford counsel cannot ordinarily obtain appointment of counsel, except in circumstances when there is a risk of loss of liberty, as in mental commitment or juvenile delinquency proceedings. See H.B. Kim, Legal Education For the Pro Se Litigant: A Step Towards a Meaningful Right to Be Heard, 96 Yale L. J. 1641, 1646-47 (1987).
Moreover, the historical origins of self-representation in civil and criminal proceedings are different. In Faretta, the Court discussed the historic requirement of having counsel, going back to the infamous English Star Chamber that forced counsel upon an unwilling defendant in a criminal proceeding, and the requirement's gradual reform. This reform was fervently embraced in colonial America for those accused of crime. See Faretta, 422 U.S. at 821-26.
Passing from the criminal to the civil context, we . . . observ[e] that a person appearing pro se in federal court can be a mixed blessing because persons appearing pro se lack legal training and may, on occasion, burden the court by filing illogical or incomprehensible pleadings, affidavits and briefs. And sometimes a pro se litigant appears simply for the purpose of using the courtroom to advance a political or social agenda, or to pursue a matter that is legally unredressable. See E.J.R. Nichols, Preserving Pro Se Representation in an Age of Rule 11 Sanctions, 67 Tex. L. Rev. 351, 351 nn.2 & 3 (1988). Yet, even given those potential burdens, there still remains a citizen's right of access to the courts, a strongly held notion stretching back to the beginnings of our Republic. The origins of the right to appear for oneself in civil proceedings derive from a number of sources, all deeply rooted in our history and culture. We undertake to discuss briefly five of those sources, though doubtless there are others:
First, history. Under the English common law with its complicated forms of action and veritable maze of writs and confusing procedures, the right to retain counsel in civil proceedings became a necessity. By the middle of the thirteenth century, lawyers so monopolized the courts in London that the King was forced to decree that, except for a few special causes, litigants were entitled to plead their own cases without lawyers. See The Right to Counsel in Civil Litigation, 66 Colum. L. Rev. 1322, 1325 (1966).
Second, mistrust of lawyers made appearance in court without benefit of counsel the preferred course. See A.L. Downey, Note, Fools and Their Ethics: The Professional Responsibility of Pro Se Attorneys, 34 B.C. L. Rev. 529, 533 (1993). Lawyers had no position of honor or place in society in early colonial days. The pioneers who cleared the wilderness looked down upon them. For example, the Massachusetts Body of Liberties of 1641 expressly permitted every litigant to plead his own cause and provided, if forced to employ counsel, the litigant would pay counsel no fee for his services. See Charles A. & Mary R. Beard, The Rise of American Civilization 100-01 (College ed. 1930).
Third, informality. In early colonial days, the rule of informality was a necessity in court proceedings since most presiding judges were not lawyers. See The Right to Counsel in Civil Litigation, supra, at 1328. By the time of the Revolution, legal proceedings had become more technical and reliance on precedent had evolved, both of which required people trained in legal interpretation. As the decades of the 18th century passed, legal questions became more complex and the need for skilled attorneys was recognized. Enough individuals had gone into law so that by the time the First Continental Congress commenced, 24 of the 45 delegates were lawyers, and in the Constitutional Convention, 33 of the 55 members were lawyers. See Beard, supra, at 101. Nonetheless, the number of lawyers although growing was still few, many Judges were still laymen, and the legal process still remained sufficiently simple to permit persons whether rich or poor to plead their own causes. See The Right to Counsel in Civil Litigation, supra, at 1329.
Fourth was religion. Colonial peoples' notions of their own individual rights and their reliance on themselves were part of the movement away from religious authority and towards religious freedom. Thus, for example, the Massachusetts Bay Colony spawned Dissenters such as Anne Hutchinson and Roger Williams who, declaring that the colony's leaders had not followed the pilgrims' heritage, left and obtained a charter for Providence, Rhode Island, in 1663, where they preached that every person should be allowed to follow his own conscience in matters of religion. Connecticut, Rhode Island, and the Massachusetts Bay Colony which formed the heart of New England Puritanism were part of a religious heritage characterized by a prickly independence and stubborn self reliance. See 1 Page Smith, A New Age Now Begins: A People's History of the American Revolution 22-23 (1976).
Fifth, education and literacy of colonial Americans. During the 1700s most citizens were literate and nearly everyone read a newspaper. There were numerous libraries and bookshops in Boston, Philadelphia, and New York by the time of the Revolution. See Bensen Bobrick, Angel in the Whirlwind: The Triumph of the American Revolution 47-48 (1997). This broad literacy and the people's political involvement in their democratic institutions transformed the average American into a citizen-lawyer. See id.at 49.
From all these various strands and perhaps others as well evolved the notion, perhaps best expressed by Thomas Paine, arguing in 1777 for a Pennsylvania Declaration of Rights, who said that to plead one's cause was "a natural right," pleading through counsel was merely an "appendage" to the natural right of self-representation. See Faretta, 422 U.S. at 830 n.39.
last updated: 01/30/2008