Unfortunately, not that many lawyers represent prisoners, so you may have trouble finding one. You have a right to sue without a lawyer. This is called suing “pro se,” which means “for himself or herself.” Filing a lawsuit pro se is very difficult. Thousands of lawsuits are filed by prisoners every year, and most of these suits are lost before they even go to trial. We do not want to discourage you from turning to the court system, but encourage you to do everything you can to try to get a lawyer to help you, before you decide to file pro se.
“Pro Se” is one of several Latin phrases you will see in this Handbook. The use of Latin in the law is unfortunate, because it makes it hard for people who aren’t trained as lawyers to understand a lot of important legal procedure. We have avoided Latin phrases whenever possible. When we have included them, it is because you will see these phrases in the papers filed by lawyers for the other side, and you may want to use them yourself. Whenever we use Latin phrases we have put them in italics, like pro se. Check the glossary at Appendix A for any words, Latin or otherwise, that you don’t understand.
A lawyer is also very helpful after your suit has been filed. He or she can interview witnesses and discuss the case with the judge in court, while you are confined in prison. A lawyer also has access to a better library and more familiarity with legal forms and procedures. And despite all the legal research and time you spend on your case, many judges are more likely to take a lawyer seriously than someone filing pro se.
If you feel, after reading Chapter Three, that you have a basis for a lawsuit, try to find a good lawyer to represent you. You can look in the phone book to find a lawyer, or to get the address for the “bar association” in your state. A bar association is a group that many lawyers belong to. You can ask the bar association to give you the names of some lawyers who take prison cases.
You probably will not be able to pay the several thousand dollars or more which you would need to hire a lawyer. But there are other ways you might be able to get a lawyer to take your case.
- If you have a good chance of winning a substantial amount of money (explained in Chapter Four, Section C), a lawyer might take your case on a “contingency fee” basis. This means you agree to pay the lawyer a portion of your money damages if you win (usually one-third), but the lawyer gets nothing if you lose. This kind of arrangement is used in many suits involving car accidents and other personal injury cases outside of prison. In prison, it may be appropriate if you have been severely injured by guard brutality or an unsafe prison condition.
- If you don’t expect to win money from your suit, a lawyer who represents you in some types of cases can get paid by the government if you win your case. These fees are authorized by the United States Code, Title 42, Section 1988. However, the recent Prison Litigation Reform Act of 1996 (called the “PLRA” and discussed in Chapter Two, Section F) added new rules that restrict the court’s ability to award fees to your lawyer. These new provisions may make it harder to find a lawyer who is willing to represent you.
- If you can’t find a lawyer to represent you from the start, you can file the suit yourself and ask the court to “appoint” or get a lawyer for you. Unlike in a criminal case, you have no absolute right to a free attorney in a civil case about prison abuse. This means that a judge is not required by law to appoint counsel for you in a Section 1983 case, but he or she can appoint counsel if he or she chooses. You will learn how to ask the judge to get you a lawyer in Chapter Five, Section C, Part 3 of this Handbook.
- A judge can appoint a lawyer as soon as you file your suit. But it is much more likely that he or she will only appoint a lawyer for you if you successfully get your case moving forward, and convince the judge that you have a chance of winning. This means that the judge may wait until after he or she rules on the prison officials’ motions to dismiss your complaint or motion for summary judgment. Chapters Five and Six of this Handbook will help you prepare your basic legal papers and respond to a motion to dismiss or motion for summary judgment.
Even if you have a lawyer from the start, this Handbook is still useful to help you understand what he or she is doing.
Be sure your lawyer explains the choices you have at each stage of the case. Remember that he or she is working for you. This means that he or she should answer your letters and return your phone calls within a reasonable amount of time. Don’t be afraid to ask your lawyer questions. If you don’t understand what is happening in your case, ask your lawyer to explain it to you. Don’t ever let your lawyer force decisions on you or do things you don’t want.