Excerpted From: Susannah Camic Tahk, Distributive Precedent and the Pro Se Crisis, 108 Iowa Law Review 745 (January, 2023) (446 Footnotes) (Full Document)


SusannahCamicTahkEveryday, people in courthouses across the United States undertake the difficult task of appearing in front of the court without a lawyer. Pro se litigation, or litigation in which one party does not have a lawyer, is a major issue for the court system and for the litigants themselves. In some state courts, “seventy to ninety-eight percent of cases involve at least one unrepresented litigant.” In federal court, “[b]etween 1999 and 2018, over 1,517,000 federal district court cases, or 28 percent of all cases filed, involved at least one pro se party.” In some areas of the law, the pro se rate is much higher. In civil rights cases where the plaintiff is currently incarcerated, 95.6 percent of litigants proceed pro se, and 84.1 percent of petitioners in habeas corpus action are pro se. Approximately 33 percent of civil rights cases and 20 percent of employment cases in federal court also involve pro se litigants. Civil justice scholar Jessica Steinberg summarizes the situation by writing that, “it is not improbable to estimate that two-thirds of all cases in American civil trial courts involve at least one unrepresented individual. In short, the magnitude of the pro se crisis is immense.”

The “pro se crisis” becomes most severe in its impact on the country's most marginalized and disadvantaged people. In 2010, poverty law scholar Gene Nichol wrote that “[s]tudy after demoralizing study demonstrates, with daunting and repetitive consistency, that over eighty percent of the legal need of the poor and the near poor--a cohort including at least ninety million Americans-- is unmet.” Nichol quotes President Jimmy Carter: “Ninety percent of our lawyers serve ten percent of our people. We are overlawyered and underrepresented.”

The pro se crisis has enormous consequences. As the result of this crisis, “huge numbers of our fellows ‘lose their families, their housing, their livelihood, and like fundamental interests.”’ Issues “frequently involving the most vital questions of life--divorce, child custody, domestic violence, health care, shelter, subsistence, life-sustaining benefits--are either rejected, ignored, or determined under terms of extraordinary imbalance, as a result of the absence of counsel.”

At a system level, the pro se crisis also undermines the idea that U.S. courts offer equal access to justice. The pro se crisis creates a “literal chasm that exists between our aspiration of ‘equal justice under law’ and the actual exclusionary operation of our civil justice system.”

Empirical evidence demonstrates that equal justice concerns are not hypothetical. Pro se litigants do face major disadvantages. Empirical legal scholars Mark Gough and Emily Taylor Poppe find that pro se cases “are associated with higher rates of termination by pretrial adjudication, higher rates of dismissals, and lower rates of settlement.” In addition, pro se litigants are much more likely to lose even if their cases make it to court. Steinberg writes that “[i]t is well-documented that unrepresented litigants secure far fewer victories in court than their represented counterparts.” Win rates for cases with lawyered plaintiffs “are approximately 300 percent greater than those for cases involving pro se plaintiffs.”

The disparity reaches across all areas of the law. “[I]n every case category [that Gough and Poppe studied], win rates [were] lower among cases involving pro se plaintiffs relative to ... where all parties are represented by counsel.” Legal scholar Ayelet Sela similarly reports “that well over half of the [pro se] cases [she studied were] dismissed sua sponte on the court's motion or upon a motion to dismiss filed by the opposing party, most commonly due to failure to state a claim.”

A substantial body of legal scholarship has examined some of the many disadvantages pro se litigants face and the reasons they so often lose. This scholarship includes Marc Galanter's path-breaking article, Why the “Haves” Come Out Ahead, which spotlights the significance of legal precedent. According to Galanter, the “haves” of litigation, that is, parties with resources and lawyers, litigate as a “long game.” Rather than concentrate solely on one-shot victories, “haves” attempt to establish favorable precedents that then allow them to win repeatedly. Subsequent scholarship has applied Galanter's insight about precedent across forums and substantive areas of the law.

In addition, extensive scholarship on low-resourced litigants has examined the pro se experience empirically, documenting the many disadvantages that face parties appearing in court without lawyers. As this Article will document, those reasons derive both from formal law and from socio-legal factors.

Against the backdrop of overwhelming disadvantages faced by pro se litigants, it is perhaps surprising that they experience any success at all in court. Yet, they do. This Article is the first empirical study of pro se success. It examines why pro se litigants sometimes beat the odds and what courts and policy makers can do to help them succeed more often.

The study is based on a novel dataset of all 568 cases from January to August 2020, in both state and federal court, in which a pro se litigant experienced some kind of legal success. For each of these successful 568 pro se cases, my research assistants and I hand-coded a number of variables, including the primary issue at stake in the case and the specific precedents the case cited.

Using this data, I drilled down further into the precedents used by successful pro se litigants. I tried to answer questions that are underdeveloped in current scholarship such as: What are the characteristics of the precedents that enable pro se litigants to achieve successful outcomes? Do pro se litigants rely on different precedents in different areas of law? Does the body of precedent used by pro se litigants consist of few or many cases? Do these precedents concern substantive or procedural issues? Perhaps most fundamentally, where and how do the precedents used by pro se litigants originate?

What these datasets reveal seems unsurprising at first glance: Pro se litigants succeed when they have relevant law, or precedent, on their side. To succeed in court, pro se litigants need case law that pertains to the issue they hope to win: They need precedent. However, Galanter's theory predicts that litigation's “have-nots,” including pro se parties, should struggle to find useful precedent.

Consistent with that prediction, I found that pro se litigants do not rely on precedent set by other pro se litigants. Instead, they rely on precedent that represented parties established. Approximately 68.9 percent of the 619 precedents beneficial to pro se parties were cases in which both previous parties had lawyers, often elite ones. Inasmuch as the “have nots” have success in court, they are able to rely on precedent that the “haves” set. In this way, the resources of the “haves” benefit the unrepresented “have nots.”

As this process happens, precedent distributes resources from the hands of those who can afford to pay lawyers into the hands of pro se parties who cannot afford representation. This dynamic is the core argument of this Article: Precedent distributes from the lawyered to the unlawyered. Further, distributive precedent, which I define as lawyered precedent on which at least one pro se litigant has relied for a favorable proposition of law, typically shares its benefits serendipitously. A represented party probably has no inkling when a decision made in her favor can and does benefit a pro se party, or perhaps many pro se parties. In addition, distributive precedent disperses its benefits by enlarging the pie of legal resources rather than by re-allocating them. Advantaged parties still get the full value of their legal victories even when that value also accrues to less advantaged parties.

This Article analyzes empirically how precedent distributes its benefits. In what areas of law and under what conditions does distributive precedent arise? What kind of distributive precedents are most valuable to pro se litigants? What makes for a what I will call a distributive “general precedent”? Then, this Article uses answers to these factual questions to address policy. What can distributive precedents tell us about how to create more precedents beneficial to pro se parties? How can courts and lawyers help pro se parties gain access to valuable precedents?

On the policy front, understanding precedent as a valuable good to be shared between represented parties and unrepresented parties opens up important new pathways for legal reform. These policy pathways share a theme. Law should not be a secret. As this Article will discuss, courts, lawyers, and policymakers often treat potentially valuable case law as a treasure hoarded by legal insiders. Yet, precedent is the law. The law is supposed to be public information. Fueling the secretive practices of legal authorities seems to be the belief that if more people had access to precedential case law, then (a) those people might use precedential law to bring more lawsuits, and (b) they might not hire lawyers to help them navigate the legal system. Courts want to manage their dockets, and lawyers want to their work to benefit their own clients. Justifiable as these concerns may seem, however, they do not outweigh legitimacy problems with a system of justice that expects people to abide by laws that they cannot even find. Many of this Article's suggested reforms focus on bringing precedent out of its metaphorical vault and making it more widely accessible.

My research is the first to examine the potential distributive effects of precedent. Studying the distributive potential of precedent contributes to two major and often disconnected bodies of legal scholarship. The first concerns pro se and low-resourced litigants in general. Neither the theoretical literature on this subject, which follows Galanter's lead, nor its empirical counterpart has investigated the question of when, despite the odds, a pro se litigant succeeds. Doing so is the purpose of the database created for this Article. Understanding pro se successes is particularly important given the scope of the current pro se crisis in this country. Peering into the tiny window of opportunities available to pro se litigants may help scholars and advocates to widen that window.

The second literature to which this Article contributes is the well-established one on the role of precedent more generally. While civil procedure scholars, among others, have long studied the workings of precedent, they have yet to investigate in a comprehensive way precedent's distributive function. For this reason, scholars have never considered the potential that precedent has to distribute the legal system's resources to litigants who lack legal representation. This Article adds to the literature on precedent by treating precedent as a valuable good whose benefits can, in certain circumstances, flow to the legal system's most under-resourced participants.

To examine and suggest ways to build upon the distributive potential of precedent, this Article will proceed in three parts. Part I will discuss the current state of legal knowledge about pro se litigants. Section I.A will describe the pro se crisis and its breadth, and Section I.B will describe the long odds any pro se party faces in litigation. Section I.C. will consider what is known about why a litigant's lack of a lawyer so often entails failure in court. Section I.C.1 will analyze the ways that the law itself has created the pro se crisis, and Section I.C.2 will discuss the role of socio-legal factors in producing the crisis. Part II will then turn to the distributive potential of precedent. Section II.A will describe the research design of my study, and Section II.B will present the findings of the study. It will identify six basic patterns according to which pro se litigants derive particularly significant value from distributive precedents. Part III will build on these research findings to propose policy reforms aimed at expanding the distributive potential of precedent, in particular by reducing practices of secrecy found in the American legal system. Section III.A will suggest ways to increase the supply of distributive precedent, and Section III.B will consider how to improve access to it.

[. . .]

The U.S. legal system currently faces a crisis in pro se litigation. Parties who lack legal representation are at major disadvantages and regularly lose at every stage of the legal process. Due to hardened legal and sociolegal pathologies, well-off represented parties are usually able to hoard the legal system's resources privately.

However, by taking a novel empirical approach of studying the circumstances in which pro se litigants actually had some success, this Article has spotlighted that the legal system offers one public good whose benefits are available even to unrepresented parties: precedent. This Article has documented that the rare pro se successes rest on a body of favorable precedent.

This Article is the first to open the black box of precedent as it is used by successful pro se litigants and to conduct a comprehensive study of this previously neglected phenomenon. To do this, I created two large hand-coded datasets. One is the first known dataset of decisions in cases where pro se litigants succeeded. The second is the first known dataset on the characteristics of the precedents that are beneficial to pro se litigants.

The data show that precedents from cases where both parties had lawyers are most likely to be useful to pro se litigants. Via these “distributive precedents,” the legal system distributes previously concentrated legal resources to individuals who lack them.

The data also identified several previously unknown patterns that pertain to distributive precedents. First, reliance on distributive precedents by successful pro se litigants occurs in many different areas of law: prisoners' rights in particular, but also civil procedure, criminal procedure, employment law, family law, Fourth Amendment law, public benefits law, immigration law, housing law, contracts, torts, disability rights law, bankruptcy law, tax law, consumer protection law, open records law, and elsewhere as well. Second, there is geographical variation in the production of distributive precedents; some states generate substantially more of these precedents than other states. Third, some distributive precedents are significantly more valuable to pro se litigants than other precedents; they function like what scholars have called “general precedents.” Fourth, distributive-precedential cases and the pro se cases that rely on them often (as one would expect) had large substantive overlaps. Fifth, and inversely, distributive precedents also included a significant number of cases where the overlaps were procedural, rather than substantive. Sixth, some of the most valuable distributive precedents were primarily valuable as precedent; the original litigants never realized any substantial benefits from them.

These findings open up several broad avenues for future research. To start with some remaining descriptive questions: To what extent would the findings reported in this Article vary if the data grew to include other states, and other years? On what kinds of motions are pro se parties most likely to succeed? In which circuits? On appeal, or at the district court level? By what means do distributive precedents command the attention of clerks or judges and become so useful in pro se cases? How would the patterns observed here compare to patterns in precedent that is unfavorable to pro se parties?

Turning to more causal questions that remain for future research: To what extent do the successes of pro se litigants in their use of distributive precedent turn on their own pleadings? What matters more to the eventual outcome of these cases: the relevant legal precedents and rules or sociolegal factors? In regard especially to the prison cases, how do pro se successes vary by race, gender, age, or other categories of repression and marginalization? What measures might reduce the secrecy that currently shrouds distributive precedent from the view of pro se litigants? And, most importantly, which interventions might increase the supply of distributive precedent and improve access to that supply?

The final part of this Article took initial steps toward addressing these last qestions of supply and access, which are so central to attacking the pro se curisis. From this angle, perhaps the most important task for the immediate future is to determine which of these steps is most feasible and effective for more widely distributing to pro se litigants the benefits of distributive precedent.

Professor of Law, University of Wisconsin Law School (she/her).