annual report of public counsel

8/6/2019 Annual Report of Public Counsel

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The Public CounselFederal Pro Se Clinic

Annual ReportFebruary 2009 – February 2010



Hernán D. VeraPresident and CEO

Public Counsel

A Letter from the President of Public Counsel

With the active and essential support of the U.S. District Court forthe Central District of California and the law firm Proskauer LLP,Public Counsel’s Federal Pro Se Clinic (“the Clinic”) opened itsdoors on February 9, 2009. Public Counsel is the public interestlaw office of the Los Angeles County and Beverly Hills BarAssociation s and the Southern California affiliate of the Lawyers’Committee for Civil Rights Under Law. Established in 1970,Public Counsel is dedicated to advancing equal justice under lawby delivering free legal and social services to indigent andunderrepresented children, adults and families throughout LosAngeles County, ensuring that other community-basedorganizations serving this population have legal support, andmobilizing the pro bono resources of attorneys, law students andother professionals. With the help of thousands of volunteers,every year Public Counsel helps over 29,000 low-income people,including children, women suffering from domestic violence,elderly victims of home equity and consumer scams, homelessveterans, and refugees fleeing persecution and torture – ultimatelyproviding over $87 million in free services in 2009.

Since its inception, the Clinic has provided free legal assistance to 685 (non-prisoner) pro se civillitigants. Located on the 5th floor of the Spring Street U.S. Courthouse in Los Angeles, the Clinicassists those who have filed or wish to file federal cases without an attorney as well asunrepresented defendants. The Clinic – open Mondays, Wednesdays, and Fridays from 10:00 a.m.to 4:00 p.m – is staffed by two attorneys and a project coordinator. Volunteer attorneys and lawstudents also assist the Clinic.

A large portion of the funding for the Clinic was provided through the incredible generosity of thelaw firm of Pros kauer LLP. In addition, the Court’s Attorney A dmissions Fund has graciouslycontributed funds to facilitate the Clinic’s operation. Clinic staff meets regularly with Courtpersonnel, including judges and Clerk's Office staff, to coordinate and monitor the Clinic'songoing work.

As described more fully below, the Clinic is a team effort, and owes its success to the dedicatedwork of a large group of committed judges, lawyers, and administrative staff. Public Counsel isextremely grateful to all who have helped make this vision a reality, and we are extremely proudto present this annual report summarizing the outstanding accomplishments of the Clinic in its firstyear of operation.

Sincerely,

Hernán D. VeraPresident and CEOPublic Counsel



Public Counsel would like to t hank…

Public Counsel’s Federal Pro Se Clinic has had an extremely successful first year, receiving over1,500 visits from pro se civil litigants. We could not have assisted this volume of people withoutthe unwavering support of the U.S. District Court for the Central District of California , whichprovides space, facilities, and equipment for the Clinic. Judges, Clerk’s Office personnel , andother Court staff worked closely with Public Counsel to plan and launch the Clinic, and theycontinue to provide critical support for the C linic’s operations. In particular, Chief Judge AudreyB. Collins, former Chief Judge Alicemarie H. Stotler , District Judges A. Howard Matz and Dale S.Fischer , Magistrate Judge Suzanne H. Segal , District Court Executive and Clerk of Court TerryNafisi , Assistant Courtroom Manager Rachel Ingram , Statistics Director Sara Tse Soo Hoo , ProSe/Civil Intake Supervisor Rhonda Marshall , and Staff Attorney Rosa Morales have beeninvaluable partners in this endeavor. We also appreciate the work of the U.S. Marshals Service in providing security assistance and consultation. In addition, we are very grateful to theCourt’s Attorney Admissions Fund for helping fund the Clinic ’s ongoing work.

We also thank the law firm Proskauer LLP , whose generous grant to Public Counsel made theClinic possible. Using the attorney fees awarded for Bert Deixler ’s successful pro bonorepresentation of the civil rights plaintiff in Johnson v. California , __ U.S. __, 125 S.Ct. 1141(2005) , Proskauer provided the seed funding required to staff the Clinic with two Public

Counsel lawyers, including the Proskauer Rose Civil Justice Fellow, a recent law school graduateselected through a competitive process. Since that time, Proskauer has continued to provideimportant support. W e greatly appreciate the firm’s enthusiasm and partnership as the Clinicenters its second year.



I. Introduction: The challenge of pro se litigation.................................................................... 1

II. Overview of the clinic ......................................................................................................... 2

A. Hours of operation ........................................................................................................ 2

B. Walk-in policy ................................................................................................................ 2

C. Intake procedures ......................................................................................................... 3

D. The Clinic space ........................................................................................................... 3

E. Range of services ......................................................................................................... 4

III. The pro se litigants who visit the clinic and their cases ....................................................... 4

IV. Detailed de scription of the Clinic’s services ........................................................................ 7

A. Advice at the pre-filing stage ......................................................................................... 7

B. Service of process ........................................................................................................ 8

C. Advice at the post-filing stage ....................................................................................... 9

1. Motions to dismiss .................................................................................................. 9

2. Other motions ......................................................................................................... 9

3. Amended complaints ............................................................................................ 10

4. Discovery, conferences, and summary judgment .................................................. 10

V. Addressing the challenge of pro se litigation .................................................................... 10A. Helping litigants understand the proceedings .............................................................. 10

B. Discouraging frivolous filings ....................................................................................... 11

C. Compliance with applicable rules ................................................................................ 11

D. Form pleadings ........................................................................................................... 11

VI. Pro se defendants ............................................................................................................ 12

VII. Pro bono placements ....................................................................................................... 14

A. Pro bono placement of non-prisoner cases ................................................................. 14

B. Pro bono placement of prisoner cases ........................................................................ 16VIII. Statistical analysis of the Clinic’s effect on Court efficiency .............................................. 16

IX. Coordination of services ................................................................................................... 16

X. Conclusion and future developments ............................................................................... 17

Table of Contents



1 The Public Counsel Federal Pro Se Clinic: Annual Report 2009-2010

In fiscal year 2009, 30% of civil

cases filed in the Central District of California were brought by

pro se litigants.

I. Introduction: The challenge of pro se litigation

According to the Administrative Office of the U.S.Courts, civil pro se filings in the federal courts forthe 12 months ending September 30, 2009,numbered 71,543 nationwide (compared to204,854 filings in non-pro se civil cases). Thesefigures have steadily increased for the past severalyears. At the same time, an increasing number of civil cases are being filed against persons withoutcounsel.

In the U.S. District Court for the Central District of California, 30% of civil cases filed during fiscalyear 2009 (“FY 2009”) were filed by pro se litigants. 1 The percentage of non-prisoner pro sefilings has risen dramatically —from FY 2008 to FY 2009, non-prisoner pro se filings in the

Central District of California increased by 39.27%. 2 Of the 4,047 pro se cases filed in the CentralDistrict in FY 2009, 39% were brought by non-prisoner pro se litigants. The country’s recenteconomic downturn, including increased foreclosures and unemployment, has onlyexacerbated these trends.

Unrepresented civil litigants frequently have difficulty asserting claims and defenses in a properand timely manner. Some cases do not even belong in federal court. As a result, casesinvolving pro se litigants create significant challenges for the federal courts. First, frivolouslawsuits increase the courts’ already heavy workload. Second, even pro se litigants who havemeritorious claims may not get a decision on the merits because they cannot navigate the often

complex procedural rules that govern federal litigation, leading to resentment and frustration.

These challenges exist nationwide and require a response by the courts and the broader legalcommunity.

Acknowledging the importance of this issue, President Barack Obama named ProfessorLaurence H. Tribe of Harvard Law School Senior Counselor for Access to Justice in theDepartment of Justice, where he is leading an initiative aimed at improving access to civil andcriminal legal services.

As the district court with the highest number of civil pro se filings in the country, 3 the U.S.District Court for the Central District of California is particularly familiar with the challengescreated by pro se litigation.

1 Unless otherwise noted, all federal court filing statistics were obtained from the U.S. Courts website, available at:http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness.aspx?doc=/uscourts/Statistics/JudicialBusiness/2009/tables/S23Sep09.pdf . 2 Statistic provided by the Clerk’s Off ice of the U.S. District Court for the Central District of California.3 In FY 2009, the Central District had 4,047 pro se filings, almost as many as the entire Second Circuit.

http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness.aspx?doc=/uscourts/Statistics/JudicialBusiness/2009/tables/S23Sep09.pdf







The Public Counsel Federal Pro Se Clinic: Annual Report 2009-2010 2

In response to these challenges, the Court worked with Public Counsel and the law firmProskauer LLP to create Public Counsel’s Federal Pro Se Clinic . After months of planning, theClinic opened its doors on February 9, 2009. The Clinic offers free legal assistance to pro selitigants with civil cases in federal court. Located on-site in the Central District ’s Spring Street

U.S. Courthouse, the Clinic is staffed by two full-time attorneys from Public Counsel and aparalegal. In the second half of its first year, the Clinic acquired a full-time volunteer attorneyfrom Simpson Thacher and Bartlett, LLP. The Clinic also enjoys a steady stream of volunteer lawstudents.

The Clinic is equipped to provide meaningful legal assistance to pro se litigants, with servicesranging from identifying the next procedural step in a case to drafting pleadings for indigentlitigants with meritorious claims. In its first year alone, the Clinic provided free legal assistanceto 685 pro se civil litigants.

This report summarizes the accomplishments of the Clinic during its first year, from February 9,2009, to February 9, 2010.

II. Overview of the ClinicHOURS OF OPERATION

A. Hours of operation

The Clinic is open to the public three days a week, on Mondays, Wednesdays, and Fridays, from10 a.m. to 4 p.m.

B. Walk-in policy

Due to the large volume of visitors, the Clinic operates on a walk-in basis and does not offerappointments for initial visits. We do not provide initial assistance over the phone or emailunless the litigant is disabled or out of state. Once we have met a litigant and assessed his orher claims, we may invite the litigant to return on another day. We attempt to balance theneeds of our walk-in visitors, who may have a same-day filing deadline, with those of litigantsreturning for a general review of their pleadings. We correspond over phone and email withcertain litigants after we have assessed their claims and their ability to cooperate appropriatelywith our staff.




Many judges in the Central Districthave referred pro se litigants to theClinic for assistance, including :Senior District Judge Terry J. Hatter, Jr.

Senior District Judge Consuelo B.MarshallDistrict Judge George H. KingDistrict Judge Dean D. PregersonDistrict Judge A. Howard MatzDistrict Judge Virginia A. PhillipsDistrict Judge Valerie Baker FairbankDistrict Judge Philip S. GutierrezDistrict Judge Otis D. Wright IIDistrict Judge George H. WuMagistrate Judge Carla WoerhleMagistrate Judge Suzanne H. SegalMagistrate Judge Oswald Parada

C. Intake procedures

During Clinic hours, pro se litigants walk in and aregreeted by a staff member. Litigants are asked to fillout an intake sheet, which asks for their contact

information and general information about their case.The intake sheet also includes a waiver, which must besigned, explaining to the litigants that we are not theirattorneys.

After the litigant has filled out the intake sheet, weconduct a short interview to determine what type of assistance he or she needs. Each interview lasts from30 minutes to an hour. Some litigants, particularlythose who wish to draft pleadings, stay in the lobby allday, drafting complaints and other pleadings andbringing them back to us for editing and advice.

D. The Clinic space

The Clinic space consists of an office for the Clinic attorneys, a work space for the paralegal andvolunteers, a copy room, and a public lobby area for the litigants. A glass window separates theClinic work space from the public lobby area. The lobby area has two computers and a printerthat are available to the public. One computer gives pro se litigants access to the CentralDistrict’s Case Management system , which allows them to view their case dockets. The other

computer has a freeware

word processor thatpermits litigants to draftsimple pleadings. Theycannot, however, save theirwork or email it tothemselves. Litigants canprint pleadings they draft atthe Clinic and file themdownstairs with the Cou rt’sCivil Intake Section. The

Clinic space, furniture, andpublic lobby computers andprinter were all generouslyprovided by the Court.

The Clinic’s location at thecourthouse has been vitalto its success. A litigant

The Clinic is located on the 5th floor of the U.S. District Courthousein downtown Los Angeles .




In its first year alone, the Clinicserved 685 pro se litigants.

who has a problem filing a document can take the elevator to the fifth floor to consult with aClinic attorney. Judges sometimes refer litigants to the Clinic after a court hearing. In addition,Clinic staff frequently consults with the Clerk’s Office, the Civil Intake Section, and theAlternative Dispute Resolution Program on federal court procedures and policies for pro se civillitigants.

E. Range of services

The Clinic provides the following services:

Information and assistance to pro se civil litigants in the Central District of CaliforniaReview of pleadings for compliance with federal and local rulesSamples, guides, and forms to assist litigants in correctly drafting pleadingsOn occasion, Clinic attorneys draft pleadings for indigent litigants who have meritoriousclaims or defenses

Referrals, as appropriate, to attorneys willing to provide pro bono representationReferrals, as appropriate, to homeless shelters and other social services

III. The pro se litigants who visit the clinic and their cases

During its first year of operation, the Clinic receiveda total of 1,566 visits from pro se litigants. Of thesevisits, 685 (45%) were first-time visits, and 881 (56%)were repeat visits. On a monthly basis, the Clinicreceives an average of 130 visits (i.e., approximately

11 per day), with 57 coming from first-time visitorsand 73 coming from repeat visitors. Litigants are eligible to visit the Clinic if they areunrepresented and are involved in or want to file civil litigation in the U.S. District Court for theCentral District of California.

Thirteen percent of the people assisted by the Clinic – almost one in every seven – are pro sedefendants. Many of these defendants live out of state, putting them at a severe disadvantagein the lawsuits.

Most litigants learn about the Clinic from either the Court’s website or the Civil Intake Section.In addition, a number of Central District judges have referred litigants to the Clinic.

Litigants have come to the Clinic from all seven counties within the Central Distr ict’s geographicarea (Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, andVentura). The Clinic has also provided assistance to Central District litigants who reside inFlorida, Minnesota, New York, Texas, and China.




February 9, 2009 – February 9, 2010

Number of Litigant VisitsTotal Litigants Served: 685Total Repeat Visits: 881 Total Litigant Visits (includes

new and repeat litigants): 1,566 Average visits daily: 11 Average number of newlitigants served monthly: 57 Average total visits monthly: 130

Plaintiffs and DefendantsPercentage Defendants: 13%Percentage Plaintiffs: 87%

Age Range of Litigants18-59: 75%60+: 20%Not Reported: 5%

Racial Demographics

Gender Demographics

White34%

AfricanAmerican

32%

Hispanic18%

Asian10%

NotReported

6%

Male66%

Female34%

Many litigants visit the Clinic in a state of panic and angerresulting from the litigation and the events giving rise to it.Those involved in foreclosure-related cases often appearparticularly distressed. These litigants frequently viewfederal litigation as a last-ditch effort to save their homes.

Approximately 15 to 20 percent of Clinic visitors appearedto suffer some sort of mental illness, based on Clinic staff’ssubjective observations of the litigants’ behavior andallegations made in their court documents.

A disturbingly large number of litigants come to the Clinicwith basic reading and comprehension problems; somecannot even read Court orders and the opposition’s filings.Others can decipher the words in the documents but cannotcomprehend even the simplest of Court orders. We haveencouraged such litigants to visit or call the Clinic every timethey receive a Court order so we can read and explain it tothem.

Most of the substantive issues raised by Clinic visitors arisefrom foreclosures and civil rights, employmentdiscrimination, and intellectual property claims. Mostvisitors seek assistance from the Clinic before filing acomplaint. The following charts show the substantive claimsof Clinic visitors and the procedural posture of visitors’ caseswhen they seek the Clinic’s assistance:

First Annual Clinic Statistics




TYPES OF CASES IN WHICH CLINIC PROVIDED ASSISTANCESUBSTANTIVE CLAIM # OF LITIGANTS % OF LITIGANTS

Civil rights (§ 1983 and Bivens) 144 17%

State court claims ( claims that don’t belong in fe deral court) 103 12%

Foreclosure-related cases 93 11%

Employment discrimination 64 8%Intellectual property 52 6%California substantive law claims(brought under diversity and supplemental jurisdiction) 49 6%

Social Security 31 4%

RICO 30 4%

Bankruptcy 29 3%

Criminal cases 27 3%

Habeas 25 3%

Consumer debt (including student loans, FCRA and FDCPA) 22 3%

Federal Tort Claims Act 16 2%

ADA 10 1%Forfeiture 8 1%

Appeals 8 1%*15% of the claims brought by litigants fell outside these areas.*

PROCEDURAL POSTURE OF LEGAL PROCEEDING AT TIME OF CLINIC VISITSTAGE IN LEGAL PROCEEDING AT TIME OF CLINIC VISIT # OF LITIGANTS % OF LITIGANTS

Pre-filing 272 25%

Motion to dismiss 79 7%

Service of process 75 7%

Amended complaint 63 6%

Default and default judgment 53 5%

Appeal 48 4%Answer 46 4%

Continuance 38 3%

Discovery 35 3%

Motion to set aside judgment (non-default) 32 3%

Settlement 30 3%

Dismissal 28 3%

Remand/Removal 28 3%

Application for IFP status 26 2%

TRO 25 2%

Summary judgment 24 2%

Status conference 19 2%Post-judgment 19 2%

Response to OSC 13 1%

Motion to recuse judge 7 1%

Objection to Magistrate J udge’s Report & Recommendation 6 1%

Voluntary dismissal 5 0%

In trial 1 0%

*11% of litigants did not fall into any of these categories.*




OtherLitigants

55581%

Followedadvice

10581%

Ignoredadvice

2519%

Litigantsadvised notto litigate

further13019%

IV. Detailed description of the Clinic’s services

A. Advice at the pre-filing stage

Many visitors to the Clinic have not yet filed a lawsuit and are interested in starting a case infederal court. With these visitors, we do an initial assessment to determine whether the casebelongs in federal court. In particular, we look for federal jurisdiction and timeliness.

If there is no federal jurisdiction, we explain to the litigant why we do not believe the casebelongs in federal court and recommend he or she take the issue to state court or some otherappropriate venue.

If there appears to be federal jurisdiction, the claims are timely, and the case involves an areaof law with which the Clinic’s attorneys are familiar, we may evaluate the case to see if itcontains non-frivolous issues. If we conclude the claims are frivolous, we explain to the visitor

that the law under which he is trying to bring his claim is not appropriate for his situation andrecommend that he not proceed with that claim. For example, many visitors want to sue judges and court personnel under 42 U.S.C. § 1983. We tell those visitors that these individualsare usually not proper defendants under § 1983.

We explain to some visitors that they are not appropriate pro se plaintiffs. These peopleusually lack standing, are trying to represent a corporation, or are trying to represent a class. If appropriate, we refer these people to attorney referral services or organizations that deal withtheir type of claim.

In a number of cases, the Clinic has assisted both the Court and litigants by persuading visitorsnot to file or continue litigating frivolous claims. Over the year, we advised 19% of our visitorsnot to move forward with their case in federal court. We give such advice only to visitorswhose cases have obvious incurable defects, such as lack of federal jurisdiction or factualimpossibility (e.g., suits againstmythical beings). Of the 19% weadvised not to proceed, 81%followed our advice as of the dateof this report.

If the visitor insists on proceeding

pro se in federal court in spite of our recommendation not toproceed, we will help her formather complaint and prepare herforms correctly so that the case canbe processed efficiently. In theseinstances, we tend to refrain from




further extensive conversations in order to focus our attention on other visitors who have moremeritorious claims.

We give all visitors who wish to proceed, whether or not their cases are frivolous, a brief andsimplified explanation of what must be included in a complaint, including a statement of

jurisdiction, a clear list of parties, a statement of facts, a list of the claims, and a request forrelief. We generally suggest that visitors write their own complaint and return to us for editingor further guidance.

Typically, those who receive our assistance in drafting their complaints come back multipletimes for advice, particularly if their complaints are dismissed with leave to amend. We havefound that most pro se litigants who come to the Clinic are baffled by court orders and aregrateful just to have the legal language “translated” for them into simple terms.

B. Service of process

Errors in effectuating service of process areamong the most common procedural problemswe see at the Clinic. Most pro se litigants whovisit the Clinic have no idea whom to serve,particularly in cases where the defendants arelarge corporations or government entities. Mostof the litigants we see also have no idea how toserve process – many try to accomplish servicethemselves or believe (wrongly) that merelymailing the summons and complaint constitutes

service. Even in cases where litigants haveproperly served process, litigants often run intoproblems filling out the Proof of Service of Summons and Complaint form.

Service of process presents a daunting obstaclefor pro se litigants for a number of reasons.First, the rules for service of process arecomplicated and can confuse even experiencedattorneys. Second, pro se litigants in the Central

District of California are often left to their owndevices to accomplish service by either payingfor a process server (which many cannot afford)or finding a friend to help them. Third, judges sometimes dismiss a pro se civil rights complaintwith leave to amend before the litigant has accomplished service or order the litigant not toattempt service while the court is screening the complaint. This may leave litigants confusedabout whether and when they can serve process and creates anxiety about meeting the 120-day deadline for service.

Clearing Up Miscommunication

A pro se plaintiff came to the Clinic for helpin responding to an order to show causewhy she should not be sanctioned. The plaintiff had served her complaints on thedefendants, violating the Court’s sta ndingorder to refrain from service until the Court permitted it. The plaintiff had also tried to file multiple oppositions to a motion todismiss, even though the Court had indicated that it had received the plaintiff’s first opposition and had taken the matter under submission. The Clinic realized that the litigant’s failure to comply with theCourt’s orders stemmed from her inability toread. The Clinic helped the plaintiff respond to the OSC and encouraged her to contact the Clinic each time she received any mail from the Court or opposing counsel. The plaintiff has since visited the Clinicnumerous times, and Clinic personnel regularly persuade her not to file repetitious papers in her cases.




We generally deal with service of the summons and complaint in multiple visits with a litigant.At the pre-filing stage, we often try to help the litigant focus on drafting a well-pleadedcomplaint; absent a looming statute of limitations problem, we tell the litigant to hold off onfiling and service. After the litigant submits the complaint and the court files it, we meet withthe litigant to discuss service. If the litigant is serving an individual or federal government

entity, we will give the litigant an easy-to-read guide we developed that explains the basics of service on those defendants. For service on corporations and local government entities, we willoften help the litigant determine the correct agent for service of process. For many litigants wewill also provide a chart we have developed to help them keep track of their attempts atservice. We then schedule a follow-up session with the litigant to review his attempts atservice and help him fill out the Proof of Service form.

C. Advice at the post-filing stage

1. Motions to dismiss

Not surprisingly, the Clinic sees many pro se plaintiffs at the motion to dismiss stage. Helping alitigant prepare an opposition to a motion to dismiss gives Clinic staff the opportunity to helpthe litigant evaluate the merits of her claims.Typically, we will review the moving paperswith the litigant, give a general overview of thedefense’s arguments, and explain how toresearch and draft an opposition. If we haveexpertise in the area of law, we will provide thelitigant research suggestions and easilyavailable reference tools.

2. Other motions

The Clinic also offers assistance to litigants whoare filing motions, such as motions to compel,motions to continue, and motions forreconsideration. (The Clinic never assistslitigants with motions to recuse a judge.) Weassist these litigants by explaining that to file amotion they must schedule a hearing date,

prepare supporting documents such as adeclaration and a memorandum of points andauthorities, and lodge a proposed order. Wealso explain the difference between motions, exparte applications, and requests so the litigantscan determine which type of pleading best fitstheir needs. We then give the litigants form

Changing Outcomes

A large corporation sued an elderly disabled man in New York for selling allegedly counterfeit T-shirts over the internet. Inaddition to suing the defendant individually,the plaintiff also sued the defendant’s

website. Appearing pro se, the defendant argued the U.S. District Court for the Central District of California lacked personal

jurisdiction over both him and his website.The Court agreed there was no personal

jurisdiction over the defendant, but ruled thedefendant could not appear on behalf of hiswebsite to raise the personal jurisdictionissue. As a result, the Court entered default

judgment for $25,000 against the website. After receiving a phone call from thedefendant, the Pro Se Clinic helped him file a

motion to reconsider, explaining the website functioned as a sole proprietorship and thedefendant could appear on behalf of his sole

proprietorship to contest personal jurisdiction. The Court granted the motion toreconsider and dismissed both the individual defendant and his website from the action.




pleadings that they may fill out by hand ortake home to type into their computer.

3. Amended complaints

Helping litigants draft an amendedcomplaint also allows Clinic staff to educatepeople about their claims. Most litigants atthis stage come to the Clinic with a courtorder explaining the deficiencies in theirinitial filing. A Clinic attorney will typicallywork with the litigant to review the Court’sorder and the litigant’s complaint, givingsuggestions on research, arguments, anddrafting. In addition, an attorney may take

the opportunity to suggest to litigants facing severe hurdles, such as a statute of limitationsproblem, that litigation may not be a viable option for them.

4. Discovery, conferences, and summary judgment

Some pro se litigants come to us for assistance with discovery, scheduling conferences, pre-trialconferences, and summary judgment motions. We typically provide sample documents forthese litigants as well as advice on how to negotiate with opposing counsel and what to expectat conferences or hearings held before a judge.

V. Addressing the challenge of pro se litigation

A. Helping litigants understand the proceedings

We have found that much of the frustration expressed by pro se litigants comes from amisunderstanding of federal court procedures. Many litigants, for example, are angry that theircases have been decided without oral argument. A common complaint is, “ I never even got togo in front of a judge.” We explain to these litigants that much of federal litigation is done inwriting and does not resemble oral hearings depicted in television programs like “Judge Judy.”Once they have that understanding, most litigants can focus their attention on writing theirpleadings correctly.

Similarly, pro se plaintiffs frequently complain that the court could not have read theircomplaint because the court ruled the complaint failed to state a claim for relief. A Clinicattorney will explain what the ruling means. Typically, the pro se plaintiff will then work onamending his complaint.

When Procedure Makes a Difference

A homeless pro se litigant who suffered frommental health problems filed suit in district court to appeal the denial of his application for Social Security benefits. When he visited the Clinic, the

Court had already dismissed for failure to prosecute. The Clinic helped the litigant file amotion to set aside the order dismissing the caseand, after his case was re-opened, assisted inopposing a summary judgment motion. Thegovernment voluntarily remanded the case tothe Administrative Law Judge, giving the litigant an opportunity to submit new evidence insupport of his application for benefits.




Helping pro se litigants in this way often significantly mitigates the anger that can result from apro se litigant’s misunderstanding of legal proceedings. Once a litigant understands thesituation, he or she can make an informed decision about how to proceed, reducing thepotential for frivolous filings.

Pro se litigants sometimes have difficulty understanding the opposing counsel. In these cases,Clinic staff will occasionally call the opposing counsel on th e litigant’s behalf. In a fewinstances, these phone calls have resulted in settlements.

B. Discouraging frivolous filings

As noted above, during its first year, Clinic attorneysadvised approximately 19% of our visitors not to moveforward with their case in federal court. We give suchadvice only to visitors whose cases have obviousincurable defects, such as lack of federal jurisdiction orfactual impossibility. Of the 19% we advised not toproceed, over 80% followed our advice as of the dateof this report.

If appropriate, the Clinic refers these litigants to theproper court, attorney referral services, or non-profitlegal or social services organizations.

C. Compliance with applicable rules

The Clinic helps visitors comply with the Federal Rules of Civil Procedure and the Local Rules of the U.S. District Court for the Central District of California. Common types of assistanceinclude:

Calculating deadlines for answers, motions, oppositions, replies, and appealsSetting a hearing date for a motionAssistance with service of processRequesting extensions or continuancesTitling a pleading correctlyEntering or setting aside defaults when warranted

Explaining potential discovery toolsPutting together pre-trial materials, such as jury instructions and witness and exhibitlists

D. Form pleadings

The Clinic has developed several form pleadings and templates that have been tailored to theLocal Rules of the Central District of California. These include:

Offering Alternative Solutions

A young woman came to the Clinic tosue Lucifer for preventing her fromgetting a job and rendering her

homeless. The Clinic persuaded thewoman that the Court was not theright place for her to resolve her

problem. The Clinic then referred her to nearby homeless shelters.




$2,000 settlement in a cable/satellitepiracy case, in which the pendingmotion for default judgment soughtmore than $100,000.$3,000 settlement in a trademarkinfringement lawsuit, where plaintiff’s

counsel initially demanded $25,000.$3,000 settlement in a case involvingillegal music downloads, reduced fromthe plaintiff’s $5,000 settlementminimum.

Favorable Settlements

General ComplaintCivil Rights Complaint (non-prisoners)Social Security Complaint

Ex Parte ApplicationNotice of Motion and MotionMemorandum of Points andAuthoritiesDeclarationProposed OrderRequest for Extension of TimeRule 26 Initial DisclosuresNotice of Change of Address

We ha ve coordinated with the Court’s IT department to upload many of these forms onto oneof the computers in the Clinic’s public area. Litigants can draft their pleadings on the computerand print them. We have found the computer to be especially helpful to those who need to fileimmediately.

Litigants can also access the Court’s website from the Clinic computer and can complete officialCourt forms, such as a Civil Cover Sheet, a summons, and a Proof of Service form. The Clinic hasrecently seen an increase in the number of people who use the computer and printer that wemake available.

VI. Pro se defendants

Approximately 1 out of every 7 litigants assisted bythe Clinic is a pro se defendant. Pro se defendantsoften require a heightened level of assistancebecause they must respond to a complaint within ashort time frame and are usually surprised to findthemselves in federal court. Many of our pro sedefendants are not indigent but simply do notunderstand the gravity of their situation. Many

have significant difficulty with English. In manyinstances, we have found the best course of actionis to explain the risks of not participating in thelawsuit. We often encourage pro se defendantsfacing significant monetary damages in commercial

or business cases to find an attorney to help them. In a few situations, we have called opposingcounsel on behalf of pro se defendants to help facilitate settlement discussions. We help many

Litigants may draft simple pleadings and fill out official Court forms at the Public Counsel Federal Pro Se Clinic.




The Wrong Defendant

A pro se defendant came to theClinic after being ordered toa ppear for a debtor’s examinationbased on a default judgment that was almost a decade old. Thelawsuit alleged the defendant illegally showed a boxing matchat a restaurant. The defendant,however, had never owned arestaurant and simply had thesame name as the defendant inthe original lawsuit. The Clinic

helped him obtain a dismissal from the action.

pro se defendants with answers or motions todismiss. A significant number of litigantscome to us after being defaulted or whilefacing an imminent entry of default. If thesedefendants are indigent and have a

meritorious defense, the Clinic will help themdraft motions to oppose the entry of defaultor motions to set aside the default judgment.

The Clinic has helped defendants in thefollowing types of cases:

Cable/Satellite PiracyTrademark and CopyrightStudent Loan Collection

RICOERISA

Forfeiture

Fair Housing Act

The majority of defendants who visit the Clinic are being sued for intellectual property-relatedclaims (cable/satellite piracy, violation of trademark or copyright). The defendants intrademark and copyright cases are often small-scale, online sellers of products such as shoes orclothing who make very little profit from their online sales.

The Clinic helped at least thirteen pro se defendants incable and satellite piracy cases. All of these defendantswere accused of showing programs at their restaurantswithout proper authorization. Most of these defendantsspoke only Spanish and could not afford an attorney. Allof them visited the Clinic after default had beenentered.

Of these thirteen defendants, the Clinic helped nineobtain dismissals from the lawsuits on grounds such asexpiration of the statute of limitations, improper serviceof process, or the naming of the wrong defendant. TheClinic helped two defendants settle a case for a

favorable amount. The remaining cases are stillpending.

In addition, the Clinic has assisted numerous defendantsin student loan recovery cases. In some of these cases, the Clinic helped the defendants fileanswers and assert, as an affirmative defense, that the student loan obligation had beensatisfied. In other cases, the Clinic helped the defendants file exemptions from wagegarnishments.

Preventing Defaults

A pro se defendant in a copyright case came tous on the day his answer was due. He wanted an extension of time so that he could retaincounsel, but the other side refused tocooperate. The Clinic staff gave him advice ondrafting a request for an extension and

provided the appropriate pleading form on theClinic computer. The litigant was able to draft his request and have it reviewed by a Clinicattorney before he filed it and served it onopposing counsel. The Court subsequently granted his request.




One defendant in a student loan case visited the Clinic because, despite a court-orderedreduction in the amount the government could garnish from her wages, contract attorneysrepresenting the United States were attempting to garnish more than the authorized amount.A Clinic attorney reviewed the defendant’s docket on PACER and informed her that the contractattorneys had also filed a notice of levy indicating that they would try to seize funds from her

bank account. The Clinic attorney helped the defendant draft an ex parte application for arestraining order to stop the contract attorneys from violating the Court’s orders. The Courtissued a restraining order and set an OSC hearing. By the time of the hearing, the contractattorneys had emptied the defendant’s bank account and executed two more garnishmentorders, leaving the defendant destitute. The Court ruled in the defendant’s favor and thecontract attorneys returned all of her money.

The Clinic has also helped numerous litigants file claims in forfeiture proceedings. In one case,a pro se litigant visited the Clinic after his 1897 Winchester shotgun was seized by the U.S.government. The litigant had left the Winchester, a family heirloom, at a gun shop for cleaningand repairs. The Bureau of Alcohol, Tobacco, and Firearms seized the Winchester when itraided the shop and arrested the shop owner for suspected gun sales to convicted felons. Afterreceiving a copy of the complaint from the U.S. Attorney ’s Office, the litigant came to the Clinicto file the requisite pleadings to contest the forfeiture claim. The Clinic helped the litigant filean answer and a claim in the forfeiture proceeding, and the Court subsequently ordered thereturn of the litiga nt’s gun.

VII. Pro bono placements

A. Pro bono placement of non-prisoner cases

For 40 years, Public Counsel has placed cases involving the most vulnerable members of ourcommunity with pro bono counsel. A matter is appropriate for placement with pro bonocounsel if the litigant has a meritorious claim, meet s Public Counsel’s income guidelines, andcan communicate and cooperate with counsel.

During its first year, the Clinic placed four cases from our Clinic with pro bono counsel:

A pro se litigant traveled from San Bernardino to our Clinic to file a Section 1983 civilrights claim against the county sheriff for excessive force upon arrest. Although thelitigant had spoken to several private attorneys, none of them would take her case on acontingency fee basis because she was seeking only recovery of her out-of-pocketmedical expenses. The Clinic helped the woman draft and file her initial complaint, andthen placed the case with pro bono attorneys from Paul, Hastings, Janofsky & WalkerLLP. After the pro bono attorneys took the depositions of the sheriff's deputies,opposing counsel offered to settle the case for the full amount the litigant demanded inher complaint.




Victor Flood with pro bono counsel from Paul, Hastings, Janofsky &Walker LLP. From left to right are Stephen Turanchik, RebeccaLoh, Victor Flood, Melinda Gordon, and Adam Cherensky.

Victor Flood, a section 8 tenant whowas being sued by a neighbor in hisapartment complex, came to theClinic for assistance. The plaintiff,represented by counsel, was

accusing Mr. Flood and their landlordof discriminating against her and herchild based on their familial status.Upon investigation, it becameapparent that t he plaintiff’s claimswere frivolous. Because Mr. Floodwas semi-illiterate, however, he wasunable to defend himself in thelawsuit. Meanwhile, the plaintiff hadrequested entry of default. The

Clinic promptly drafted pleadings onMr. Flood’s behalf and found pro bono counsel from Paul, Hastings, Janofsky & WalkerLLP to represent him in the case. After engaging in significant discovery, the pro bonoattorneys attended a mediation that resulted in the dismissal of all claims against theirclient.

An impoverished woman visited the Clinic for assistance in an interpleader actionbrought by the trustees of her deceased husband’s pension benefit account. After herhusband’s death, the woman applied for the benefits of the ERISA account but wasshock ed to learn that another woman was claiming that she was the deceased man’swife. The Clinic helped the litigant draft an answer and claim for the benefits, and thenplaced the case with pro bono counsel from Orrick, Herrington & Sutcliffe LLP. The caseis currently pending.

Public Counsel co-counseled with Robert J. Muller of Cypress, LLP to assist a low-incomedefendant in a trademark case. After we drafted a motion to dismiss, the parties settledand the plaintiff dropped its claims against the defendant.

The Clinic has received two requests from District Judges to find pro bono counsel for pro selitigants. In one instance, Public Counsel referred the case to pro bono counsel familiar withcivil rights litigation. The law firm concluded that the plaintiffs ’ claims did not belong in federal

court. As a result, the law firm chose not to represent the plaintiffs. In the other instance, aClinic staff attorney handled the litigant’s case and helped her resolve her claims withoutfurther Court action.

The Clinic has also developed a system for tracking cases that may warrant pro bono placementin the future. The Clinic provides extensive assistance to these litigants by helping them draftpleadings, motions, and memoranda, while waiting to see what the defendants assert.




B. Pro bono placement of prisoner cases

Six months into the year, the Clinic assumed responsibility for placing prisoner civil rights caseswith pro bono counsel through a Pro Bono Panel created by the Court and previouslyadministered by Magistrate Judge Suzanne H. Segal. With Judge Segal’s guidance, the Clinic

began accepting referrals from District Court judges and recruiting additional volunteerattorneys for the panel with the help of Public Counsel's Pro Bono Director. D uring the Clinic’sfirst year, judges directly referred four cases to Public Counsel, which successfully placed all of them with pro bono counsel.

VIII. Statistical analysis of the Cl inic’s effect on Court efficiency

With the Court ’s assistance, Public Counsel recruited a volunteer statistical research intern toanalyze case data to determine the Clinic’s effect on Court efficiency. The intern's reportconcluded that document discrepancies are significantly lower in cases in which the litigant has

visited the Clinic. This reduction in document discrepancies suggests that the Clinic is reducingthe number of times any particular document must be filed before the case can move forward.

In addition, to facilitate future studies of the Clinic's effect on Court efficiency, the reportoutlines the methodology, datasets, and criteria used in analyzing the Clinic’s impact.

With respect to other areas of potential impact, the report concluded that, although the Clinichas seen many visitors over the past year, a data pool large enough to generate statisticallysignificant conclusions will not be available for a few more years.

IX. Coordination of services

The Clinic regularly coordinates with Court personnel and organizations that serve pro selitigants. Every month, Clinic staff meets with District Judge A. Howard Matz, who took the leadon the Court's side in planning the Clinic and remains involved in its oversight. Others oftenattending this monthly meeting include District Judge Dale S. Fischer, Magistrate Judge SuzanneH. Segal, District Court Executive and Clerk of Court Terry Nafisi, Assistant Courtroom ManagerRachel Ingram, and Statistics Director Sara Tse Soo Hoo.

In addition, the Clinic has developed a close working relationship with the Court's Civil IntakeSection, which refers litigants to the Clinic for assistance. Clinic staff frequently consults CivilIntake about filing and court procedures.

Through outreach efforts, our Clinic has also established a strong relationship with the L.A.County Law Library. The Library has a self-help research librarian who helps pro se litigantswith legal research. Further, the Library has several computers from which pro se litigants canaccess Westlaw, Lexis, and Microsoft Pleading Wizard for free.




The Clinic often consults with private attorneys with experience in civil rights, employmentdiscrimination, and intellectual property claims. We are also in frequent contact with the prose clinic located in the Northern District of California. That clinic is run by Jennifer Greengold,an attorney with the Volunteer Legal Services Program of the Bar Association of San Francisco.We have collaborated with Ms. Greengold on a number of our forms and hold monthly calls

with her to discuss the common issues we face at our clinics. Most recently, we have heldseveral meetings with Public Counsel’s Pro Se Bankruptcy Self -Help Clinic to facilitate referralsbetween the two clinics.

X. Conclusion and future developments

Within its first year, the Public Counsel Federal Pro Se Clinic provided legal assistance to 685people and received 1,566 visits. Most of our visitors speak with an attorney for a significantamount of time. We expect to continue serving this volume of litigants in the future.

With the help of our form pleadings, we have increased our efficiency in providing services topro se litigants. This has enabled us to begin the process of taking responsibility foradministering the Prisoner Pro Bono Program, to which judges may refer prisoner civil rightscases that have survived dispositive motions. With the guidance of Magistrate Judge SuzanneSegal, we have begun to recruit and train pro bono lawyers to represent the prisoners in thesecases.

Over the past year, Clinic staff has seen an overwhelming need for legal assistance by pro selitigants in federal court. Responding to this need, the Clinic represents a truly innovativepartnership between the Court, Public Counsel, and private law firms. Public Counsel wouldlike to thank the Court, Proskauer LLP, and the pro bono lawyers who have been instrumentalin making the Clinic’s first year a success, and we look forward to continuing our joint efforts toensure equal access to justice for all civil litigants in federal court.



The Public Counsel Federal Pro Se Clinic: Annual Report 2009-2010

annual report of public counsel

Documents