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Lawyers are expensive and aren’t always available for every kind of case. If you file a lawsuit without a lawyer the odds are against you. What happens if you have trouble explaining to the judge and the other side what it is that the defendant did wrong?

What if the unrepresented plaintiff has a valid claim against the defendant’s wrongful conduct – but he or she doesn’t write well, communicate well? How should the court try to resolve a confusing or poorly written lawsuit?

How federal courts in Alabama resolve those questions is the subject of a recent Browne House Appeal to the 11th Circuit Court of Appeals. In it, we challenged how courts and judges apply procedural rules to unrepresented, pro se, litigants.

Your Lawsuit Must be “Plausible.”

In 2007 and 2009, the Supreme Court caused waves when it re-interpreted the rules for complaints. Before then, a complaint only required a short plain statement. After 2009, that short plain statement had to give the other side notice of a “plausible” claim.

While it was feared the plausibility standard would fundamentally change federal litigation, the effect has been more muted.  It has increased the requirements of what and how much has to go into a complaint. However, as a practical matter for litigants with lawyers, it has not meant a big change.

But what about people who don’t have lawyers? Some were worried that the change in the rules would affect people without lawyers the most. What if their lack of knowledge of the law and more important their ability to communicate prevents them from stating a “plausible” claim? In a recent appeal, this office has argued that whether the individual is pro se or represented by an attorney could affect the standard on review. Basically, the appellate court should apply de novo review, not abuse of discretion review to a “confusing” or “messy” lawsuit filed by a pro se person.

How Should Courts Review Dismissal on the Pleadings?

If your complaint fails to meet the pleading requirements your case is likely to be dismissed. Interestingly this tends to come up two ways: for failure to state a claim or for having messy pleadings.

  1. Failure to State a Claim. If there are 3 things you have to allege to show a breach of a contract and you only allege 2 of them in the complaint, you may have failed to state a claim. That claim would be subject to dismissal.
  2. Failure to Follow the Rules / Instructions. On the other hand, if there the pleadings are enough of a mess the court can dismiss the complaint for failure to follow the court’s instructions and the rules. This court power is inherent and arises out of its ability to control its own docket and typically results from a lawyer’s “shotgun pleadings” or an abject failure to follow the court’s instructions.

Both Dismissals Implicate Rule 8 but are Reviewed Differently on Appeal.

Both the messy compliant and the one that doesn’t allege enough facts and elements to be plausible are subject to dismissal under Federal Rule of Procedure 8. The messy complaints typically involve Rule 8 and Rule 10(b). The legally deficient complaints typically involve Rule 8 and Rule 12(b)(6).

The messy complaints are reviewed for abuse of discretion – meaning the dismissals are particularly hard to overturn. The legally deficient complaints are reviewed de novo – meaning the dismissals are relatively easier to overturn on appeal.

How Should Courts Resolve Messy Pro Se Complaints?

Pro se parties often lack the skills to produce pleadings that aren’t “messy.” But that messiness – unlike those messy pleadings produced by lawyers – are not the result of a failure to follow court direction, the rules, or inexcusable attention to detail. They’re generally a result of being overwhelmed by a complex court system.

Whether the 11th Circuit Court of Appeals will agree is yet to be seen.

Get Help with your Appeal:

If you have a state or federal appeal in Alabama, contact the lawyers of Browne House Law to see how we might be able to help you.