The Public Counsel Federal Pro Se Clinic Annual Report

February 2009 February 2010

A Letter from the President of Public Counsel

With the active and essential support of the U.S. District Court for the Central District of California and the law firm Proskauer LLP, Public Counsels Federal Pro Se Clinic (the Clinic) opened its doors on February 9, 2009. Public Counsel is the public interest law office of the Los Angeles County and Beverly Hills Bar Associations 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 law by delivering free legal and social services to indigent and underrepresented children, adults and families throughout Los Angeles County, ensuring that other community-based organizations serving this population have legal support, and mobilizing the pro bono resources of attorneys, law students and other 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, homeless veterans, and refugees fleeing persecution and torture ultimately providing over $87 million in free services in 2009.

Hernn D. Vera
President and CEO Public Counsel

Since its inception, the Clinic has provided free legal assistance to 685 (non-prisoner) pro se civil litigants. Located on the 5th floor of the Spring Street U.S. Courthouse in Los Angeles, the Clinic assists those who have filed or wish to file federal cases without an attorney as well as unrepresented 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 law students also assist the Clinic. A large portion of the funding for the Clinic was provided through the incredible generosity of the law firm of Proskauer LLP. In addition, the Courts Attorney Admissions Fund has graciously contributed funds to facilitate the Clinics operation. Clinic staff meets regularly with Court personnel, including judges and Clerk's Office staff, to coordinate and monitor the Clinic's ongoing work. As described more fully below, the Clinic is a team effort, and owes its success to the dedicated work of a large group of committed judges, lawyers, and administrative staff. Public Counsel is extremely grateful to all who have helped make this vision a reality, and we are extremely proud to present this annual report summarizing the outstanding accomplishments of the Clinic in its first year of operation. Sincerely,

Hernn D. Vera President and CEO Public Counsel

Public Counsel would like to thank

Public Counsels Federal Pro Se Clinic has had an extremely successful first year, receiving over 1,500 visits from pro se civil litigants. We could not have assisted this volume of people without the unwavering support of the U.S. District Court for the Central District of California, which provides space, facilities, and equipment for the Clinic. Judges, Clerks Office personnel, and other Court staff worked closely with Public Counsel to plan and launch the Clinic, and they continue to provide critical support for the Clinics operations. In particular, Chief Judge Audrey B. 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 Terry Nafisi, Assistant Courtroom Manager Rachel Ingram, Statistics Director Sara Tse Soo Hoo, Pro Se/Civil Intake Supervisor Rhonda Marshall, and Staff Attorney Rosa Morales have been invaluable 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 the Courts Attorney Admissions Fund for helping fund the Clinics ongoing work. We also thank the law firm Proskauer LLP, whose generous grant to Public Counsel made the Clinic possible. Using the attorney fees awarded for Bert Deixlers successful pro bono representation 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 graduate selected through a competitive process. Since that time, Proskauer has continued to provide important support. We greatly appreciate the firms enthusiasm and partnership as the Clinic enters its second year.

Table of Contents
I. II. Introduction: The challenge of pro se litigation....................................................................1 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. IV. The pro se litigants who visit the clinic and their cases .......................................................4 Detailed description of the Clinics services ........................................................................7 A. Advice at the pre-filing stage .........................................................................................7 B. Service of process ........................................................................................................8 C. Advice at the post-filing stage .......................................................................................9 1. 2. 3. 4. V. Motions to dismiss ..................................................................................................9 Other motions .........................................................................................................9 Amended complaints ............................................................................................ 10 Discovery, conferences, and summary judgment .................................................. 10

Addressing the challenge of pro se litigation .................................................................... 10 A. 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 A. Pro bono placement of non-prisoner cases ................................................................. 14 B. Pro bono placement of prisoner cases ........................................................................ 16

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

VIII. Statistical analysis of the Clinics effect on Court efficiency .............................................. 16 IX. X. Coordination of services ................................................................................................... 16 Conclusion and future developments ............................................................................... 17

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 for the 12 months ending September 30, 2009, numbered 71,543 nationwide (compared to 204,854 filings in non-pro se civil cases). These figures have steadily increased for the past several years. At the same time, an increasing number of civil cases are being filed against persons without counsel.

In fiscal year 2009, 30% of civil cases filed in the Central District of California were brought by pro se litigants.

In the U.S. District Court for the Central District of California, 30% of civil cases filed during fiscal year 2009 (FY 2009) were filed by pro se litigants.1 The percentage of non-prisoner pro se filings has risen dramaticallyfrom 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 Central District in FY 2009, 39% were brought by non-prisoner pro se litigants. The countrys recent economic downturn, including increased foreclosures and unemployment, has only exacerbated these trends. Unrepresented civil litigants frequently have difficulty asserting claims and defenses in a proper and timely manner. Some cases do not even belong in federal court. As a result, cases involving pro se litigants create significant challenges for the federal courts. First, frivolous lawsuits increase the courts already heavy workload. Second, even pro se litigants who have meritorious 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 legal community. Acknowledging the importance of this issue, President Barack Obama named Professor Laurence H. Tribe of Harvard Law School Senior Counselor for Access to Justice in the Department of Justice, where he is leading an initiative aimed at improving access to civil and criminal 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 challenges created 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/JudicialBusine ss/2009/tables/S23Sep09.pdf. 2 Statistic provided by the Clerks Office 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.

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

In response to these challenges, the Court worked with Public Counsel and the law firm Proskauer LLP to create Public Counsels Federal Pro Se Clinic. After months of planning, the Clinic opened its doors on February 9, 2009. The Clinic offers free legal assistance to pro se litigants with civil cases in federal court. Located on-site in the Central Districts Spring Street U.S. Courthouse, the Clinic is staffed by two full-time attorneys from Public Counsel and a paralegal. In the second half of its first year, the Clinic acquired a full-time volunteer attorney from Simpson Thacher and Bartlett, LLP. The Clinic also enjoys a steady stream of volunteer law students. The Clinic is equipped to provide meaningful legal assistance to pro se litigants, with services ranging from identifying the next procedural step in a case to drafting pleadings for indigent litigants with meritorious claims. In its first year alone, the Clinic provided free legal assistance to 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 Clinic

HOURS OF OPERATION
A. Hours of operation The Clinic is open to the public three days a week, on Mondays, Wednesdays, and Fridays, from 10 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 offer appointments for initial visits. We do not provide initial assistance over the phone or email unless the litigant is disabled or out of state. Once we have met a litigant and assessed his or her claims, we may invite the litigant to return on another day. We attempt to balance the needs of our walk-in visitors, who may have a same-day filing deadline, with those of litigants returning for a general review of their pleadings. We correspond over phone and email with certain litigants after we have assessed their claims and their ability to cooperate appropriately with our staff.

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

C.

Intake procedures
Many judges in the Central District have referred pro se litigants to the Clinic for assistance, including: Senior District Judge Terry J. Hatter, Jr. Senior District Judge Consuelo B. Marshall District Judge George H. King District Judge Dean D. Pregerson District Judge A. Howard Matz District Judge Virginia A. Phillips District Judge Valerie Baker Fairbank District Judge Philip S. Gutierrez District Judge Otis D. Wright II District Judge George H. Wu Magistrate Judge Carla Woerhle Magistrate Judge Suzanne H. Segal Magistrate Judge Oswald Parada

During Clinic hours, pro se litigants walk in and are greeted by a staff member. Litigants are asked to fill out an intake sheet, which asks for their contact information and general information about their case. The intake sheet also includes a waiver, which must be signed, explaining to the litigants that we are not their attorneys. After the litigant has filled out the intake sheet, we conduct a short interview to determine what type of assistance he or she needs. Each interview lasts from 30 minutes to an hour. Some litigants, particularly those who wish to draft pleadings, stay in the lobby all day, drafting complaints and other pleadings and bringing 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 and volunteers, a copy room, and a public lobby area for the litigants. A glass window separates the Clinic work space from the public lobby area. The lobby area has two computers and a printer that are available to the public. One computer gives pro se litigants access to the Central Districts Case Management system, which allows them to view their case dockets. The other computer has a freeware word processor that permits litigants to draft simple pleadings. They cannot, however, save their work or email it to themselves. Litigants can print pleadings they draft at the Clinic and file them downstairs with the Courts Civil Intake Section. The Clinic space, furniture, and public lobby computers and printer were all generously provided by the Court. The Clinics location at the courthouse has been vital to its success. A litigant

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

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

who has a problem filing a document can take the elevator to the fifth floor to consult with a Clinic attorney. Judges sometimes refer litigants to the Clinic after a court hearing. In addition, Clinic staff frequently consults with the Clerks Office, the Civil Intake Section, and the Alternative Dispute Resolution Program on federal court procedures and policies for pro se civil litigants. E. Range of services

The Clinic provides the following services: Information and assistance to pro se civil litigants in the Central District of California Review of pleadings for compliance with federal and local rules Samples, guides, and forms to assist litigants in correctly drafting pleadings On occasion, Clinic attorneys draft pleadings for indigent litigants who have meritorious claims or defenses Referrals, as appropriate, to attorneys willing to provide pro bono representation Referrals, 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 received a total of 1,566 visits from pro se litigants. Of these visits, 685 (45%) were first-time visits, and 881 (56%) In its first year alone, the Clinic were repeat visits. On a monthly basis, the Clinic served 685 pro se litigants. receives an average of 130 visits (i.e., approximately 11 per day), with 57 coming from first-time visitors and 73 coming from repeat visitors. Litigants are eligible to visit the Clinic if they are unrepresented and are involved in or want to file civil litigation in the U.S. District Court for the Central District of California. Thirteen percent of the people assisted by the Clinic almost one in every seven are pro se defendants. Many of these defendants live out of state, putting them at a severe disadvantage in the lawsuits. Most litigants learn about the Clinic from either the Courts 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 Districts geographic area (Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura). The Clinic has also provided assistance to Central District litigants who reside in Florida, Minnesota, New York, Texas, and China.

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

First Annual Clinic Statistics

February 9, 2009 February 9, 2010

Number of Litigant Visits

Total Litigants Served: Total Repeat Visits: Total Litigant Visits (includes new and repeat litigants): Average visits daily: Average number of new litigants served monthly: Average total visits monthly: 685 881 1,566 11 57 130

Plaintiffs and Defendants

Percentage Defendants: Percentage Plaintiffs: 13% 87%

Many litigants visit the Clinic in a state of panic and anger resulting from the litigation and the events giving rise to it. Those involved in foreclosure-related cases often appear particularly distressed. These litigants frequently view federal litigation as a last-ditch effort to save their homes. Approximately 15 to 20 percent of Clinic visitors appeared to suffer some sort of mental illness, based on Clinic staffs subjective observations of the litigants behavior and allegations made in their court documents. A disturbingly large number of litigants come to the Clinic with basic reading and comprehension problems; some cannot even read Court orders and the oppositions filings. Others can decipher the words in the documents but cannot comprehend even the simplest of Court orders. We have encouraged such litigants to visit or call the Clinic every time they receive a Court order so we can read and explain it to them. Most of the substantive issues raised by Clinic visitors arise from foreclosures and civil rights, employment discrimination, and intellectual property claims. Most visitors seek assistance from the Clinic before filing a complaint. The following charts show the substantive claims of Clinic visitors and the procedural posture of visitors cases when they seek the Clinics assistance:

Age Range of Litigants

18-59: 60+: Not Reported: 75% 20% 5%

Racial Demographics
Not Reported 6% Asian 10%

White 34%

Hispanic 18%

African American 32%

Gender Demographics

Female 34% Male 66%

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

TYPES OF CASES IN WHICH CLINIC PROVIDED ASSISTANCE

SUBSTANTIVE CLAIM Civil rights ( 1983 and Bivens) State court claims (claims that dont belong in federal court) Foreclosure-related cases Employment discrimination Intellectual property California substantive law claims (brought under diversity and supplemental jurisdiction) Social Security RICO Bankruptcy Criminal cases Habeas Consumer debt (including student loans, FCRA and FDCPA) Federal Tort Claims Act ADA Forfeiture Appeals # OF LITIGANTS 144 103 93 64 52 49 31 30 29 27 25 22 16 10 8 8 *15% of the claims brought by litigants fell outside these areas.* % OF LITIGANTS 17% 12% 11% 8% 6% 6% 4% 4% 3% 3% 3% 3% 2% 1% 1% 1%

PROCEDURAL POSTURE OF LEGAL PROCEEDING AT TIME OF CLINIC VISIT

STAGE IN LEGAL PROCEEDING AT TIME OF CLINIC VISIT Pre-filing Motion to dismiss Service of process Amended complaint Default and default judgment Appeal Answer Continuance Discovery Motion to set aside judgment (non-default) Settlement Dismissal Remand/Removal Application for IFP status TRO Summary judgment Status conference Post-judgment Response to OSC Motion to recuse judge Objection to Magistrate Judges Report & Recommendation Voluntary dismissal In trial # OF LITIGANTS 272 79 75 63 53 48 46 38 35 32 30 28 28 26 25 24 19 19 13 7 6 5 1 *11% of litigants did not fall into any of these categories.* % OF LITIGANTS 25% 7% 7% 6% 5% 4% 4% 3% 3% 3% 3% 3% 3% 2% 2% 2% 2% 2% 1% 1% 1% 0% 0%

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

IV. Detailed description of the Clinics 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 in federal court. With these visitors, we do an initial assessment to determine whether the case belongs 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 case belongs in federal court and recommend he or she take the issue to state court or some other appropriate venue. If there appears to be federal jurisdiction, the claims are timely, and the case involves an area of law with which the Clinics attorneys are familiar, we may evaluate the case to see if it contains 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 and recommend 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 individuals are usually not proper defendants under 1983. We explain to some visitors that they are not appropriate pro se plaintiffs. These people usually 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 with their type of claim. In a number of cases, the Clinic has assisted both the Court and litigants by persuading visitors not to file or continue litigating frivolous claims. Over the year, we advised 19% of our visitors not to move forward with their case in federal court. We give such advice only to visitors whose cases have obvious incurable defects, such as lack of federal jurisdiction or factual impossibility (e.g., suits against mythical beings). Of the 19% we advised not to proceed, 81% Followed followed our advice as of the date advice of this report. If the visitor insists on proceeding pro se in federal court in spite of our recommendation not to proceed, we will help her format her complaint and prepare her forms correctly so that the case can be processed efficiently. In these instances, we tend to refrain from
Other Litigants 555 81% Litigants advised not to litigate further 130 19% 105 81%

Ignored advice 25 19%

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

further extensive conversations in order to focus our attention on other visitors who have more meritorious claims. We give all visitors who wish to proceed, whether or not their cases are frivolous, a brief and simplified 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 for relief. We generally suggest that visitors write their own complaint and return to us for editing or further guidance. Typically, those who receive our assistance in drafting their complaints come back multiple times for advice, particularly if their complaints are dismissed with leave to amend. We have found that most pro se litigants who come to the Clinic are baffled by court orders and are grateful just to have the legal language translated for them into simple terms. B. Service of process Clearing Up Miscommunication
A pro se plaintiff came to the Clinic for help in responding to an order to show cause why she should not be sanctioned. The plaintiff had served her complaints on the defendants, violating the Courts standing order to refrain from service until the Court permitted it. The plaintiff had also tried to file multiple oppositions to a motion to dismiss, even though the Court had indicated that it had received the plaintiffs first opposition and had taken the matter under submission. The Clinic realized that the litigants failure to comply with the Courts orders stemmed from her inability to read. 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 Clinic numerous times, and Clinic personnel regularly persuade her not to file repetitious papers in her cases.

Errors in effectuating service of process are among the most common procedural problems we see at the Clinic. Most pro se litigants who visit the Clinic have no idea whom to serve, particularly in cases where the defendants are large corporations or government entities. Most of the litigants we see also have no idea how to serve process many try to accomplish service themselves or believe (wrongly) that merely mailing the summons and complaint constitutes service. Even in cases where litigants have properly served process, litigants often run into problems filling out the Proof of Service of Summons and Complaint form.

Service of process presents a daunting obstacle for pro se litigants for a number of reasons. First, the rules for service of process are complicated and can confuse even experienced attorneys. Second, pro se litigants in the Central District of California are often left to their own devices to accomplish service by either paying for a process server (which many cannot afford) or finding a friend to help them. Third, judges sometimes dismiss a pro se civil rights complaint with leave to amend before the litigant has accomplished service or order the litigant not to attempt service while the court is screening the complaint. This may leave litigants confused about whether and when they can serve process and creates anxiety about meeting the 120day deadline for service.
The Public Counsel Federal Pro Se Clinic: Annual Report 2009-2010

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-pleaded complaint; absent a looming statute of limitations problem, we tell the litigant to hold off on filing and service. After the litigant submits the complaint and the court files it, we meet with the 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 will often help the litigant determine the correct agent for service of process. For many litigants we will also provide a chart we have developed to help them keep track of their attempts at service. We then schedule a follow-up session with the litigant to review his attempts at service 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 a litigant prepare an opposition to a motion to dismiss gives Clinic staff the opportunity to help the litigant evaluate the merits of her claims. Typically, we will review the moving papers with the litigant, give a general overview of the Changing Outcomes defenses arguments, and explain how to A large corporation sued an elderly disabled research and draft an opposition. If we have man in New York for selling allegedly expertise in the area of law, we will provide the counterfeit T-shirts over the internet. In litigant research suggestions and easily addition to suing the defendant individually, available reference tools. the plaintiff also sued the defendants 2. Other motions
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 the defendant could not appear on behalf of his website to raise the personal jurisdiction issue. As a result, the Court entered default judgment for $25,000 against the website. After receiving a phone call from the defendant, the Pro Se Clinic helped him file a motion to reconsider, explaining the website functioned as a sole proprietorship and the defendant could appear on behalf of his sole proprietorship to contest personal jurisdiction. The Court granted the motion to reconsider and dismissed both the individual defendant and his website from the action.

The Clinic also offers assistance to litigants who are filing motions, such as motions to compel, motions to continue, and motions for reconsideration. (The Clinic never assists litigants with motions to recuse a judge.) We assist these litigants by explaining that to file a motion they must schedule a hearing date, prepare supporting documents such as a declaration and a memorandum of points and authorities, and lodge a proposed order. We also explain the difference between motions, ex parte applications, and requests so the litigants can determine which type of pleading best fits their needs. We then give the litigants form

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

When Procedure Makes a Difference A homeless pro se litigant who suffered from mental 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 a motion to set aside the order dismissing the case and, after his case was re-opened, assisted in opposing a summary judgment motion. The government voluntarily remanded the case to the Administrative Law Judge, giving the litigant an opportunity to submit new evidence in support of his application for benefits.

pleadings that they may fill out by hand or take home to type into their computer. 3. Amended complaints

Helping litigants draft an amended complaint also allows Clinic staff to educate people about their claims. Most litigants at this stage come to the Clinic with a court order explaining the deficiencies in their initial filing. A Clinic attorney will typically work with the litigant to review the Courts order and the litigants complaint, giving suggestions on research, arguments, and drafting. In addition, an attorney may take the opportunity to suggest to litigants facing severe hurdles, such as a statute of limitations problem, 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-trial conferences, and summary judgment motions. We typically provide sample documents for these litigants as well as advice on how to negotiate with opposing counsel and what to expect at 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 a misunderstanding of federal court procedures. Many litigants, for example, are angry that their cases have been decided without oral argument. A common complaint is, I never even got to go in front of a judge. We explain to these litigants that much of federal litigation is done in writing 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 their pleadings correctly. Similarly, pro se plaintiffs frequently complain that the court could not have read their complaint because the court ruled the complaint failed to state a claim for relief. A Clinic attorney will explain what the ruling means. Typically, the pro se plaintiff will then work on amending his complaint.

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

10

Helping pro se litigants in this way often significantly mitigates the anger that can result from a pro se litigants misunderstanding of legal proceedings. Once a litigant understands the situation, he or she can make an informed decision about how to proceed, reducing the potential 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 the litigants behalf. In a few instances, these phone calls have resulted in settlements. B. Discouraging frivolous filings
Offering Alternative Solutions A young woman came to the Clinic to sue Lucifer for preventing her from getting a job and rendering her homeless. The Clinic persuaded the woman that the Court was not the right place for her to resolve her problem. The Clinic then referred her to nearby homeless shelters.

As noted above, during its first year, Clinic attorneys advised approximately 19% of our visitors not to move forward with their case in federal court. We give such advice only to visitors whose cases have obvious incurable defects, such as lack of federal jurisdiction or factual impossibility. Of the 19% we advised not to proceed, over 80% followed our advice as of the date of this report. If appropriate, the Clinic refers these litigants to the proper court, attorney referral services, or non-profit legal 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 assistance include: Calculating deadlines for answers, motions, oppositions, replies, and appeals Setting a hearing date for a motion Assistance with service of process Requesting extensions or continuances Titling a pleading correctly Entering or setting aside defaults when warranted Explaining potential discovery tools Putting together pre-trial materials, such as jury instructions and witness and exhibit lists D. Form pleadings

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

11

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

General Complaint Civil Rights Complaint (nonprisoners) Social Security Complaint Ex Parte Application Notice of Motion and Motion Memorandum of Points and Authorities Declaration Proposed Order Request for Extension of Time Rule 26 Initial Disclosures Notice of Change of Address

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

We have coordinated with the Courts IT department to upload many of these forms onto one of the computers in the Clinics public area. Litigants can draft their pleadings on the computer and print them. We have found the computer to be especially helpful to those who need to file immediately. Litigants can also access the Courts website from the Clinic computer and can complete official Court forms, such as a Civil Cover Sheet, a summons, and a Proof of Service form. The Clinic has recently seen an increase in the number of people who use the computer and printer that we make available.

VI. Pro se defendants

Approximately 1 out of every 7 litigants assisted by the Clinic is a pro se defendant. Pro se defendants Favorable Settlements often require a heightened level of assistance $2,000 settlement in a cable/satellite because they must respond to a complaint within a piracy case, in which the pending short time frame and are usually surprised to find motion for default judgment sought themselves in federal court. Many of our pro se more than $100,000. defendants are not indigent but simply do not $3,000 settlement in a trademark infringement lawsuit, where plaintiffs understand the gravity of their situation. Many counsel initially demanded $25,000. have significant difficulty with English. In many $3,000 settlement in a case involving instances, we have found the best course of action illegal music downloads, reduced from is to explain the risks of not participating in the the plaintiffs $5,000 settlement lawsuit. We often encourage pro se defendants minimum. facing significant monetary damages in commercial or business cases to find an attorney to help them. In a few situations, we have called opposing counsel on behalf of pro se defendants to help facilitate settlement discussions. We help many

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

12

pro se defendants with answers or motions to dismiss. A significant number of litigants come to us after being defaulted or while facing an imminent entry of default. If these defendants are indigent and have a meritorious defense, the Clinic will help them draft motions to oppose the entry of default or motions to set aside the default judgment. The Clinic has helped defendants in the following types of cases: Cable/Satellite Piracy Trademark and Copyright Student Loan Collection RICO ERISA

Preventing Defaults A pro se defendant in a copyright case came to us on the day his answer was due. He wanted an extension of time so that he could retain counsel, but the other side refused to cooperate. The Clinic staff gave him advice on drafting a request for an extension and provided the appropriate pleading form on the Clinic computer. The litigant was able to draft his request and have it reviewed by a Clinic attorney before he filed it and served it on opposing counsel. The Court subsequently granted his request.

Forfeiture Fair Housing Act

The majority of defendants who visit the Clinic are being sued for intellectual property-related claims (cable/satellite piracy, violation of trademark or copyright). The defendants in trademark and copyright cases are often small-scale, online sellers of products such as shoes or clothing who make very little profit from their online sales. The Clinic helped at least thirteen pro se defendants in cable and satellite piracy cases. All of these defendants were accused of showing programs at their restaurants without proper authorization. Most of these defendants spoke only Spanish and could not afford an attorney. All of them visited the Clinic after default had been entered. Of these thirteen defendants, the Clinic helped nine obtain dismissals from the lawsuits on grounds such as expiration of the statute of limitations, improper service of process, or the naming of the wrong defendant. The Clinic helped two defendants settle a case for a favorable amount. The remaining cases are still pending.

The Wrong Defendant A pro se defendant came to the Clinic after being ordered to appear for a debtors examination based on a default judgment that was almost a decade old. The lawsuit alleged the defendant illegally showed a boxing match at a restaurant. The defendant, however, had never owned a restaurant and simply had the same name as the defendant in the original lawsuit. The Clinic helped him obtain a dismissal from the action.

In addition, the Clinic has assisted numerous defendants in student loan recovery cases. In some of these cases, the Clinic helped the defendants file answers and assert, as an affirmative defense, that the student loan obligation had been satisfied. In other cases, the Clinic helped the defendants file exemptions from wage garnishments.

13

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

One defendant in a student loan case visited the Clinic because, despite a court-ordered reduction in the amount the government could garnish from her wages, contract attorneys representing the United States were attempting to garnish more than the authorized amount. A Clinic attorney reviewed the defendants docket on PACER and informed her that the contract attorneys 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 a restraining order to stop the contract attorneys from violating the Courts orders. The Court issued a restraining order and set an OSC hearing. By the time of the hearing, the contract attorneys had emptied the defendants bank account and executed two more garnishment orders, leaving the defendant destitute. The Court ruled in the defendants favor and the contract 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 cleaning and repairs. The Bureau of Alcohol, Tobacco, and Firearms seized the Winchester when it raided the shop and arrested the shop owner for suspected gun sales to convicted felons. After receiving a copy of the complaint from the U.S. Attorneys Office, the litigant came to the Clinic to file the requisite pleadings to contest the forfeiture claim. The Clinic helped the litigant file an answer and a claim in the forfeiture proceeding, and the Court subsequently ordered the return of the litigants 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 our community with pro bono counsel. A matter is appropriate for placement with pro bono counsel if the litigant has a meritorious claim, meets Public Counsels income guidelines, and can 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 civil rights claim against the county sheriff for excessive force upon arrest. Although the litigant had spoken to several private attorneys, none of them would take her case on a contingency fee basis because she was seeking only recovery of her out-of-pocket medical expenses. The Clinic helped the woman draft and file her initial complaint, and then placed the case with pro bono attorneys from Paul, Hastings, Janofsky & Walker LLP. 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 in her complaint.

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

14

Victor Flood, a section 8 tenant who was being sued by a neighbor in his apartment complex, came to the Clinic for assistance. The plaintiff, represented by counsel, was accusing Mr. Flood and their landlord of discriminating against her and her child based on their familial status. Upon investigation, it became apparent that the plaintiffs claims were frivolous. Because Mr. Flood was semi-illiterate, however, he was unable to defend himself in the Victor Flood with pro bono counsel from Paul, Hastings, Janofsky & lawsuit. Meanwhile, the plaintiff had Walker LLP. From left to right are Stephen Turanchik, Rebecca Loh, Victor Flood, Melinda Gordon, and Adam Cherensky. requested entry of default. The Clinic promptly drafted pleadings on Mr. Floods behalf and found pro bono counsel from Paul, Hastings, Janofsky & Walker LLP to represent him in the case. After engaging in significant discovery, the pro bono attorneys attended a mediation that resulted in the dismissal of all claims against their client. An impoverished woman visited the Clinic for assistance in an interpleader action brought by the trustees of her deceased husbands pension benefit account. After her husbands death, the woman applied for the benefits of the ERISA account but was shocked to learn that another woman was claiming that she was the deceased mans wife. The Clinic helped the litigant draft an answer and claim for the benefits, and then placed the case with pro bono counsel from Orrick, Herrington & Sutcliffe LLP. The case is currently pending. Public Counsel co-counseled with Robert J. Muller of Cypress, LLP to assist a low-income defendant in a trademark case. After we drafted a motion to dismiss, the parties settled and the plaintiff dropped its claims against the defendant. The Clinic has received two requests from District Judges to find pro bono counsel for pro se litigants. In one instance, Public Counsel referred the case to pro bono counsel familiar with civil 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, a Clinic staff attorney handled the litigants case and helped her resolve her claims without further Court action. The Clinic has also developed a system for tracking cases that may warrant pro bono placement in the future. The Clinic provides extensive assistance to these litigants by helping them draft pleadings, motions, and memoranda, while waiting to see what the defendants assert.

15

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

B.

Pro bono placement of prisoner cases

Six months into the year, the Clinic assumed responsibility for placing prisoner civil rights cases with pro bono counsel through a Pro Bono Panel created by the Court and previously administered by Magistrate Judge Suzanne H. Segal. With Judge Segals guidance, the Clinic began accepting referrals from District Court judges and recruiting additional volunteer attorneys for the panel with the help of Public Counsel's Pro Bono Director. During the Clinics first year, judges directly referred four cases to Public Counsel, which successfully placed all of them with pro bono counsel.

VIII. Statistical analysis of the Clinics effect on Court efficiency

With the Courts assistance, Public Counsel recruited a volunteer statistical research intern to analyze case data to determine the Clinics effect on Court efficiency. The intern's report concluded 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 reducing the 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 report outlines the methodology, datasets, and criteria used in analyzing the Clinics impact. With respect to other areas of potential impact, the report concluded that, although the Clinic has seen many visitors over the past year, a data pool large enough to generate statistically significant 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 se litigants. Every month, Clinic staff meets with District Judge A. Howard Matz, who took the lead on the Court's side in planning the Clinic and remains involved in its oversight. Others often attending this monthly meeting include District Judge Dale S. Fischer, Magistrate Judge Suzanne H. Segal, District Court Executive and Clerk of Court Terry Nafisi, Assistant Courtroom Manager Rachel Ingram, and Statistics Director Sara Tse Soo Hoo. In addition, the Clinic has developed a close working relationship with the Court's Civil Intake Section, which refers litigants to the Clinic for assistance. Clinic staff frequently consults Civil Intake 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 litigants with legal research. Further, the Library has several computers from which pro se litigants can access Westlaw, Lexis, and Microsoft Pleading Wizard for free.

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

16

The Clinic often consults with private attorneys with experience in civil rights, employment discrimination, and intellectual property claims. We are also in frequent contact with the pro se 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 held several meetings with Public Counsels Pro Se Bankruptcy Self-Help Clinic to facilitate referrals between the two clinics.

X.

Conclusion and future developments

Within its first year, the Public Counsel Federal Pro Se Clinic provided legal assistance to 685 people and received 1,566 visits. Most of our visitors speak with an attorney for a significant amount 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 to pro se litigants. This has enabled us to begin the process of taking responsibility for administering the Prisoner Pro Bono Program, to which judges may refer prisoner civil rights cases that have survived dispositive motions. With the guidance of Magistrate Judge Suzanne Segal, we have begun to recruit and train pro bono lawyers to represent the prisoners in these cases. Over the past year, Clinic staff has seen an overwhelming need for legal assistance by pro se litigants in federal court. Responding to this need, the Clinic represents a truly innovative partnership between the Court, Public Counsel, and private law firms. Public Counsel would like to thank the Court, Proskauer LLP, and the pro bono lawyers who have been instrumental in making the Clinics first year a success, and we look forward to continuing our joint efforts to ensure equal access to justice for all civil litigants in federal court.

17

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

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