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Pro Se Tips and Tactics (Appointment of Counsel)

If you have a meritorious civil rights claim in federal court, it is obviously a good idea to try to have the claim presented by a lawyer. Most lawyers have specialized, professional knowledge of court procedures, methods, and tactics that few prisoners can match. Lawyers have better access to relevant legal materials than prisoners do. A lawyer is much more able than a prisoner to gather factual information necessary for a successful trial, in part because of training but also because the lawyer is not confined to prison and can move freely to gather facts. Perhaps most important, a good lawyer has the courtroom skills to handle the admission of evidence, examinations and cross- examinations, and objections at trial, especially in front of a jury.

If you are in prison and do not have a lot of money, there are only two ways for you to get a lawyer to represent you in a civil rights case: find a lawyer who will take your case, or persuade the court to appoint a lawyer for you. This column provides some tips on pursuing these two possibilities for obtaining counsel.

1. Trying to get a lawyer to take your case on contingency

If you cannot pay up front, as most cannot, you must try to find a lawyer who thinks your case is strong enough to take it in anticipation of being paid through attorneys' fees from the defendants or a percentage of money damages, or both. This is called taking a case on a "contingency basis."

Lawyers do not take cases on contingency unless they believe there is a very good chance of getting paid for their time (and for the costs of suit, which the lawyer advances in many contingency cases). In civil rights cases in federal court, a losing defendant must pay costs and reasonable attorneys' fees (set by the judge) to the plaintiff's lawyer. This can be an incentive in some cases for lawyers to work on a contingency basis. However, in prison cases there are unfortunately several factors that discourage most lawyers from contingency representation. The Prison Litigation Reform Act sets limits on attorneys' fees in prison cases that are lower than lawyers can get in other civil rights cases. In addition, in most prison cases, juries do not award a lot of money in damages even if the prisoner wins. This means that the other incentive a lawyer might have to do a case on contingency working for a percentage of expected damages is reduced in prison cases as well.

Despite these barriers, some lawyers will take a meritorious prison case on contingency. If you have a strong claim, you should try to find out whether a local lawyer would consider taking the case. You may be able to get names of lawyers from prisoners who have been represented by counsel, from legal services organizations, or from bar association referral programs.

Most lawyers will not take collect calls from prisoners they don't know, so you must write to a lawyer you want to review your case. Make your letter clear and to the point, and include any documents that help your case. A busy lawyer is unlikely to read, let alone respond to, a very long letter explaining every hardship you face in prison. Instead, you should explain in a direct way what has happened to you that you think is worth a lawsuit, how you have been injured, and what evidence is available. The more developed and clear your case is when you write to the lawyer, the better your chances of having that lawyer think about taking your case.

2. The law on appointment of counsel in civil rights cases

If you are unable to find a lawyer to take your case on contingency, then your only chance of getting one is to ask, after you file your case, that the court appoint a lawyer for you. Unlike in criminal cases, there is no right to appointed counsel for pro se plaintiffs who have filed civil rights cases in federal court. However, federal district courts can appoint lawyers for plaintiffs in civil rights cases. This power comes from 28 U.S.C. §1915(e)(1), which reads in full, "The court may request an attorney to represent any person unable to afford counsel." (Emphasis added.) (This language used to be found in 28 U.S.C. §1915(d), but it was moved recently to its present location. Most of the cases refer to §1915(d), but they will apply to new §1915(e)(1) as well, because the language is nearly identical.)

The "may" in §1915(e)(1) is significant, as it makes appointment a matter of the district court's discretion: The court can, but does not have to, appoint counsel. But how does the court decide to grant or deny appointment in particular cases?

The federal courts have in general looked to several factors in determining whether to appoint counsel. Three factors are most commonly cited:

1. Whether the plaintiff's case appears to have some merit;

2. The complexity of the case, especially how hard it will be for a prisoner to gather the necessary facts, and whether the presentation of evidence may be complicated; and

3. The ability of the prisoner to represent him- or herself.

One good statement of these factors is in the Second Circuit cases:

In deciding whether to appoint counsel the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.

Hendricks v. Coughlin , 114 F.3d 390, 392 (2d Cir. 1997), quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

Another factor that is often cited is whether the prisoner has made efforts to obtain counsel before requesting appointment. Some cases appear to require efforts to obtain counsel before a court will consider appointment, while other cases recognize that prisoners are not always able to figure out exactly how to get counsel. See the discussions of this issue in Farmer v. Haas, 990 F.2d 319, 321 (7th Cir.), cert. denied, 510 U.S. 963 (1993) and McDonald v. Head Criminal Court Supervisor, 850 F.2d 121, 124 (2d Cir. 1988).

Even though most federal appellate courts discuss appointment of counsel issues in terms of the factors listed above, they may differ significantly in how the factors are to be applied. For example, the Eighth Circuit has stated that when a case will be tried to a jury (as opposed to a judge trial), a plaintiff having to proceed without counsel is more than likely going to be prejudiced. Abdullah v. Gunter, 949 F. 2d 1032, 1036 (8th Cir. 1991), cert. denied , 1032, 1036 (1992). In contrast, the Seventh Circuit in Farmer v. Haas (cited above) refused to reverse a jury trial conducted by a pro se plaintiff, and suggested that the plaintiff must show a reasonable probability that if counsel had conducted the trial, the result would have been different. As another example, the Ninth Circuit often applies the factors in light of a statement that counsel should only be appointed in "exceptional circumstances" (see, for example, Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991)), while the Second and Eighth Circuit cases do not include this requirement. You should carefully review the cases in your local federal circuit to be sure you understand exactly how the courts in that circuit review the factors.

3. Making a motion to appoint counsel

There are two main ideas you should follow in making a motion for appointment of counsel. First, be very specific in addressing exactly how the lack of counsel will prevent you from having a fair trial. Address the factors from the cases discussed above, but do so in a detailed way. Do not just say, "I am unable to represent myself because I am in prison and not trained in the law." Instead, lay out the details of problems you face in your case, for example: "This case turns on how the jury will resolve complicated questions of fact. [Say what these issues are.] I have no training or experience in cross-examining witnesses or presenting complicated evidence. I have no training in objecting to the tactics of opposing counsel in a trial that will be decided on these issues." If you are in a jurisdiction in which you may have to show "exceptional circumstances" to get counsel, be specific about what is exceptional in your case, such as particular complexities or difficulties in conducting discovery. State in detail the efforts you have made to try to get a lawyer to take your case, or give good reasons why you could not make such efforts.

Part of being very specific is to make clear why you should be appointed a lawyer even though you have been able to file a coherent complaint and write a good motion for appointment. Some prisoners have been caught in a "cruel paradox" in which a "carefully reasoned, well-documented petition in support of a motion for the appointment of counselmay be deemed evidence of an ability to proceed without counsel." Mushlin, et al., Rights of Prisoners (2d Ed.), Vol. 2, p. 45 (1993). If another prisoner is helping you to write good pleadings, make sure the court knows that, because that other prisoner won't be able to help you at a trial. Even if you are writing your own pleadings, explain in detail how you are not trained to be able to handle more complicated legal tasks, such as conducting discovery or trial, and how your particular case will need the presence of counsel for you to have a fair chance.

For an excellent example of the power of being specific about how you are hampered in conducting your case without counsel, review Rayes v. Johnson , 969 F.2d 700 (8th Cir. 1992). In that case, the plaintiff (who was represented by appointed counsel on appeal) demonstrated to the court of appeals exactly how and why he was unable without help to obtain specific pieces of important documentary evidence; how his imprisonment presented barriers to adequate conduct of the case; and how he failed to properly conduct the trial. This is the kind of showing you should try to make, based of course on the true facts of your case.

The second idea is to be persistent. If you asked for appointment of counsel at the summary judgment stage but were denied, ask again at the discovery stage, and then again at trial. At each stage, there is a better and better argument for the assistance of counsel: For discovery, a lawyer is better able to move freely and (with the lawyer's specialized training) get relevant evidence. At trial, a lawyer can be crucial in the many ways I've already discussed in this column. PLN editor Paul Wright sent me material showing that he finally got counsel appointed for trial in one case even though two earlier motions for appointment had been denied.

Please note that by saying, "be persistent," I am not suggesting that you ask for counsel every week or constantly inundate the court with paper. Instead, at a point in the case at which a new or different reason to need counsel comes up, you can responsibly make another motion setting out the reasons why you need counsel to conduct the new stage.

Also be aware that the question of appointment of counsel on appeal of a civil rights case is decided separately by the court of appeals, which will look at the same kinds of factors district courts examine. On appeal, however, the reasons for asking for counsel change. On appeal, a lawyer is obviously not needed to properly present evidence or cross-examine witnesses, but may well be needed to brief complicated legal issues. If you request appointment of counsel on appeal, be specific about the reasons you need a lawyer to do the special tasks required in the appeal.

This column addresses appointment of counsel issues in a general way, and cannot cover every aspect of the law on these issues. You should do your own research in light of the particular facts of your case.

[John Midgley is a staff attorney for Columbia Legal Services in Seattle, WA.]

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