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Jail House Lawyers' Handbook - 2010 Edition

Jail House Lawyers' Handbook - 2010 Edition

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Published by Umesh Heendeniya
Thank you CCR, NLG, ACLU for all that you heroes do for civil rights/liberties and for the down-trodden & poor.
Thank you CCR, NLG, ACLU for all that you heroes do for civil rights/liberties and for the down-trodden & poor.

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Published by: Umesh Heendeniya on Aug 18, 2011
Copyright:Attribution Non-commercial


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The in forma pauperis law, 28 U.S.C. § 1915(e)(1),
allows a U.S. District Judge to “request an attorney to
represent any person unable to afford counsel.” On the
basis of this law, district judges have appointed lawyers
for prisoners who filed Section 1983 suits on their own.
Generally, when deciding whether or not to appoint a
lawyer for you, the court will consider:

How well can you present your own case?
How complicated are the legal issues?
Does the case require investigation that you will
not be able to do because of your imprisonment?
Will credibility (whether or not a witness is telling
the truth) be important, so that a lawyer will need
to conduct cross-examination?
Will expert testimony be needed?
Can you afford to hire a lawyer on your own?

These factors are listed in Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002). Some courts apply a test
that asks whether the plaintiff is competent to try the
case and if not, whether an attorney would make a
difference in the outcome. Farmer v. Haas, 990 F.2d
319, 322 (7th Cir. 1993).

Unfortunately, appointment is usually at the
“discretion” of the judge, which means that if a judge
doesn’t want to appoint you an attorney, he or she
doesn’t have to, and you are unlikely to be able to
challenge that by an appeal. On the other hand, there
have been a few rare cases in which a court held that a
judge abused this discretion. In Greeno v. Daley, 414
F.3d 645 (7th Cir. 2005), the Court of Appeals decided

that the judge abused his discretion because the
plaintiff’s case would likely require expert testimony
and the plaintiff would have to serve process on seven
defendants. In Parham v. Johnson, 126 F.3d 454, 461
(3d Cir. 1997), another Court of Appeals said that
“where a plaintiff’s case appears to have merit and
most of the aforementioned factors have been met,
courts should make every attempt to obtain counsel.” In
general, whether you will be appointed counsel has a
lot to do with how strong your case looks to a judge. If
the judge thinks your case has no merit, he or she will
not want to appoint counsel.

The best procedure is to request appointment of counsel
at the same time you request in forma pauperis status.
If you can get an appointment of counsel form from the
district court, use that form. If there is no form for this
request in the pro se packet, use the following form:

Name of the first plaintiff, et al., :




Name of the first


defendant, et al.,




Pursuant to 28 U.S.C. § 1915(e)(1) plaintiff (or
plaintiffs) moves for an order appointing counsel to
represent him in this case. In support of this motion,
plaintiff states:

1. Plaintiff is unable to afford counsel. He has
requested leave to proceed in forma pauperis.

2. Plaintiff’s imprisonment will greatly limit his ability
to litigate. The issues involved in this case are complex,
and will require significant research and investigation.
Plaintiff has limited access to the law library and
limited knowledge of the law. (A)

3. A trial in this case will likely involve conflicting
testimony, and counsel would better enable plaintiff to
present evidence and cross examine witnesses.



4. Plaintiff has made repeated efforts to obtain a
lawyer. Attached to this motion are
____________________________________. (B)

WHEREFORE, plaintiffs request that the court
appoint__________________, a member of the
________ Bar, as counsel in this case. (C)


Signature, print name below


Explanation of Form:

The caption at the top is the shortened form explained
above, but here the title will be “Motion for
Appointment of Counsel.”

In Part (A), you can include any facts in this motion
that you think will help convince the court that you
need a lawyer. For example, you could add that you are
in administrative segregation, that your prison doesn’t
have a law library, or that it takes weeks to get a book.
If you have limited formal education, you could state
that too.

In Part (B) you need to describe the evidence that you
will attach to show that you have tried to get a lawyer.
Copies of letters lawyers have sent you, or you have
sent them (if not confidential), should be enough.

Only ask for a specific lawyer in part (C) if there is a
lawyer who you know and trust. If you do have a
relationship like this, list the lawyer’s name, and the
state where he or she is admitted to practice law. If the
judge decides to appoint a lawyer for you, he or she
does not have to appoint the one you suggest, but this
may well be the easiest and most convenient thing for
the judge to do. And it is obviously very important that
the lawyer appointed for you be someone you can trust,
who is clearly on your side.

If the court denies your request at that time, or simply
ignores it, be sure to try again after the court has denied
the prison’s Motion to Dismiss your complaint and
again after their Motion for Summary Judgment. These
motions are explained in Chapter Six, Sections C and F.
The court may be more willing to appoint counsel after

it has ruled that you have a legitimate case. To renew
your motion, use the same form as above.

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