By: Alexandra Russo
Published on: April 14, 2025
The Sixth Amendment of the United States Constitution guarantees that “in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense.”[1] In 1938, the Supreme Court construed this to mean that federal courts must appoint counsel for indigent defendants.[2] It was not until 1963 that the Supreme Court expanded the Sixth Amendment to apply to state courts, stating that “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”[3] In recent years, the Supreme Court has declined to extend the right to counsel to civil actions, leaving people to navigate complex legal processes “pro se,” Latin for “on one’s own behalf.”[4]
As we make our way into the twenty-first century, many states have begun to recognize the necessity for counsel in civil actions for various issues.[5] For example, New York City enacted legislation in 2017 providing counsel to indigent persons facing eviction.[6] States like Hawaii[7] and Ohio[8] have also established an expanded right to counsel.
Deeming the right to counsel in civil cases as a luxury, not a necessity, undermines the purpose of the legal system and in effect bars indigent litigants from seeking just remedies. Some courts have taken procedural measures to help pro se litigants navigate specific legal issues. For example, the domestic violence division of the D.C. Superior Court offers templates and self-represented petitioner’s guides.[9] In stark contrast to nearby Calvert County, Maryland which states “if you choose to represent yourself, then you must also follow the same statutes and Maryland Rules for your type of case that an attorney must follow.”[10] The site goes on to explain that a complaint must be in accordance with the law, while providing no templates for those who “choose” to represent themselves.[11]
Pro se plaintiffs received an unfavorable judgment in 96% of federal district court cases between 1998 and 2017.[12] Alternatively, the same data showed that plaintiffs with representation won 86% of the time against an unrepresented defendant.[13] When both parties had representation, the odds of prevailing were much closer, 51% to 49%.[14] Pro se litigants are statistically less likely to achieve a successful outcome, therefore less likely to have access to the justice they deserve.[15] Additionally, minority groups are more likely to be self-represented, further perpetuating a racialized gap to justice.[16]
A study conducted revealed the following racial discrepancies of pro se litigants in employment and civil rights cases: 25.58% of Asian Americans were pro se throughout, with an additional 19.95% who filed pro se; 20.7% of African Americans were pro se throughout, with an additional 12.13% filed pro se, while only 8.37% of white Americans were pro se throughout, and only an additional 3.35% filed pro se.[17] Further, studies have suggested there is a subconscious judicial stigma associated with pro se litigants in particular types of cases, such as employment discrimination cases.[18] Even when the court expressly acknowledges the disadvantages that pro se litigants face, their tone is begrudging.[19]
While constituents argue providing the right to counsel in civil cases would drain already limited resources, I argue it would alleviate the undue burdens that judges, clerks, and the courts currently face. Pro se cases already require extra court resources for processing.[20] With countless pro se suits being dismissed for procedural errors caused by an overt lack of knowledge of litigation and our court system, a right to counsel would make legal processes more efficient as judges currently bear the burden of explaining trial proceedings, rights, and procedures to pro se litigants.[21] Expanding the right of access to an already existing framework (i.e. public defenders and court appointed aid) is a promising solution to this unwavering problem.
[1] U.S. Const. amend. VI.
[2] Johnson v. Zerbst, 304 U.S. 458, 469 (1938).
[3] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
[4] Turner v. Rogers, 564 U.S. 431, 451 (2011); see generally Neil Gorsuch, Over Ruled: The Human Toll of Too Much Law (2024) (discussing the overarching challenges the average person faces in navigating the legal system).
[5] State Status Map, Nat’l Coal. for a Civ. Right to Couns., https://civilrighttocounsel.org/map/ (last visited Feb. 26, 2025).
[6] Local Law No. 53 (2021) of City of N.Y.
[7] In re L.I., 482 P.3d 1079, 1083 (Haw. 2021) (holding a parent has the right to counsel when their rights as a parent are substantially affected, such as when DHS files a petition for custody).
[8] Matter of Adoption of Y.E.F., 171 N.E.3d 302, 313 (Ohio 2020) (holding indigent, adoptive parents are entitled to counsel in probate courts under the Equal Protection Clause).
[9] See Assistance completing court forms, D.C. Cts., https://www.probono.net/dccourts/ (last visited Feb. 26, 2025).
[10] Self-Represented Litigants, Md. Cts., https://www.courts.state.md.us/clerks/calvert/selfreplit (last visited Feb. 26, 2025).
[11] Id.
[12] Mitchell Levy, Comment, Empirical Patterns of Pro Se Litigation in Federal District Courts, 85 U. Chi. L. Rev. 1820, 1838 (2018).
[13] Id.
[14] Id.
[15] Just the Facts: Trends in Pro Se Civil Litigation from 2000 to 2019, U.S. Cts. (Feb. 11, 2021), https://www.uscourts.gov/data-news/judiciary-news/2021/02/11/just-facts-trends-pro-se-civil-litigation-2000-2019; see also Levy, supra note 12 (explaining how representation affects the outcome of a case: “a represented defendant will nearly always prevail over a pro se plaintiff in court. A represented plaintiff will win almost as consistently against a pro se defendant.”).
[16] Amy Myrick, et al., Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs, 15 N.Y.U. J. Legis. & Pub. Pol’y 705, 725-27 (2012).
[17] Id. at 714.
[18] Victor Quintanilla et al., The Signaling Effect of Pro se Status, 42 L. & Soc. Inquiry 1091, 1118 (2017).
[19] See e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal citations omitted) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
[20] Jefri Wood, Pro Se Case Management for Nonprisoner Civil Litigation, Fed. Jud. Ctr. 1, 1 (2016), https://www.govinfo.gov/content/pkg/GOVPUB-JU13-PURL-gpo195247/pdf/GOVPUB-JU13-PURL-gpo195247.pdf.
[21] Id.; see also Powell v. Alabama, 287 U.S. 45, 53 (1932) (stating “[i]f in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”).