Get it in writing.

A good written representation agreement is always helpful, even where not legally required. It can make clear that the attorney's representation is limited to the matter at hand, and does not include collateral items such as the client's attempt at setting aside his felony conviction through a writ of habeas corpus. The client's obligation to participate, be truthful with the attorney, and to notify counsel of any change of address, should be clearly stated. The agreement can provide that any statutory attorney's fees will go to the lawyer.¹

Amend or supplement the pleadings.

The courts give pro per litigants wide latitude, particularly with regard to pleading.² For this reason, one should consider carefully the benefits and costs of seeking to amend the complaint in a case in which one is newly-appointed as counsel for the plaintiff. Some prisoner litigants manage to draft excellent pleadings, but many times claims, parties, and the capacities in which they are sued, will need to be clarified. Counsel should seek to amend the complaint by stipulation and, failing that, by motion for leave to amend.³ At a minimum, counsel should seek to supplement any complaint that does not include a request for attorney's fees should plaintiff prevail.⁴

The Eastern District federal courts seek pro bono counsel in cases which have been identified as having potential merit by staff attorneys and judges. These are not the "crunchy peanut butter" prisoner cases from attorney general "top ten lists" and the popular press. But the courts generally are not able to learn the intricate details of a plaintiff's claims the way appointed counsel can, and it serves the client as well as the court (not to mention the attorney's obligation under Rule 11) to dismiss any claims which lack a reasonable basis in fact or law.

Damages versus injunctive relief

While inmates acting in pro per will sometimes include an unrealistic damage amount in their written pleadings, many times what they actually want is for someone to take their complaint seriously and fix their problem. Where appropriate, the complaint can be amended to include a claim for injunctive relief and to modify the amount of damages sought. The limits on recoverable attorney's fees are less draconian for parties who win injunctive relief than for those who prevail by obtaining small damage awards.⁵

Review the records

In general, California prisons maintain two sets of records on most inmates: (1) medical records, and (2) a central file or "C-file" containing just about everything else. Get your client to sign releases, including a HIPAA-compliant medical records release, so that you can review and obtain copies of these records. CDCR has limited staff available to copy records, and it is often more efficient to visit the institution where the prisoner lives, and review these records in person. The "C-file" should (but will not always) contain a complete account of your client's attempt to remedy his problem through the prison's grievance system. Prisoners must exhaust available administrative remedies before pursuing civil rights claims in court.⁶ The central file will contain a full account of your client's criminal convictions and prison disciplinary history, and other items about which you might want to file motions in limine before the civil rights case goes to trial.

Visiting your client

Department of Corrections regulations governing attorney visits attempt to make uniform rules throughout the state's 32 prisons.⁷ In practice, each facility runs its own railroad, and visiting days and hours, as well as other procedures, vary widely within the system. Unlike attorney visits at most county lockups, where one can drop in, show a state bar card, and visit a client, prison attorney visits require counsel to submit personal information and obtain a security clearance well in advance. Institutional visitor dress codes, and rules banning items such as cell phones, all apply to attorney visitors.⁸

The 800-pound gorilla

Shortly after clearing the metal detector at a California prison, I sat down for an initial conference with a prospective client, who said, "I guess you're wondering what I'm doing here." Frequently inmate clients are less willing to discuss their criminal record, as they understandably believe it is of no relevance to their civil rights claim. A fact-finder may take into account that a witness has been convicted of a felony or other offense involving dishonesty in evaluating that witness' credibility.⁹ This rule of evidence is news to many inmate litigants, and understanding it will enable a client to evaluate correctly the risks of going to trial.

Discovery issues

By now, anyone who litigates in federal court has become familiar with Rule 26 initial disclosures, as "opting-out" is a thing of the past.¹⁰ But certain types of individual actions are exempt from initial disclosures, including those "brought without counsel by a person in custody."¹¹ Once the court appoints you as counsel, it is generally beneficial to obtain an order (by stipulation or, if necessary, motion) to require initial disclosures, and to impose additional scheduling requirements, such as early designation of experts.¹²

Courts in the Eastern District seek to appoint counsel in cases at all stages of litigation. Some litigants manage to survive motions to dismiss and for summary judgment without a lawyer, and the Court seeks counsel to assist only with a jury trial. Discovery will have long since closed, the plaintiff having obtained little or no useful information through written discovery, and the defendant having taken the plaintiff's oral deposition. If newly-appointed counsel can identify a few essential documents, a videotape of an incident, or one key deposition, the court might allow discovery to be reopened for the limited purpose. Where such discovery is not available, counsel should consider using subpoenas duces tecum to require witnesses to bring critical evidence to trial.

Counsel often must file a motion to compel to obtain discovery of critical evidence in inmate litigation. Courts may include confidentiality provisions in their orders compelling production of evidence, which frequently prohibit counsel from sharing certain evidence with their own client. Lawyers should be careful to obtain written consent from the client before consenting to this arrangement, which is in tension with ethical rules that make the lawyer's case file the client's property.¹³ Courts can modify confidentiality orders if counsel establishes a need to share information with the client to prepare for trial.¹⁴

Getting your client (literally) to trial

Attorneys who do not regularly practice in this area may be surprised to learn that an incarcerated civil litigant has no absolute right to personally appear at the trial of his own lawsuit.¹⁵ Judges in the Eastern District routinely order prison officials to bring prisoners to court for their civil trials, but in order to make this happen counsel should obtain a writ of habeas corpus ad testificandum.¹⁶ Courts are not always as generous in requiring the presence of inmate witnesses, who may be crucial in proving a client's case. Counsel should seek similar orders to require their physical presence, and, failing that, ask the judge to require their appearance by telephone or video.¹⁷

Even inmate cases settle

Although prisoner cases are more difficult to settle than most other types of cases, "the settlement rates among [inmate] cases that survive pretrial litigation are nonetheless quite high."¹⁸ Many inmates are unaware that federal law now requires that restitution obligations must be paid out of the proceeds from civil rights cases.¹⁹ As in non-inmate settings, counsel can assist the client in understanding outcomes in similar cases and reaching a realistic appraisal of case value.

Prisoners are people, too

Counsel should recognize that in many of these cases, the client has successfully litigated the case on his own without a lawyer, often with surprising success. An inmate may be reluctant to cede total control of the matter to court-appointed counsel, as their experiences with lawyers in the past have not always been exemplary. Treating their opinions with respect, and incorporating their suggestions where appropriate is as useful as in any other litigation setting.

Carter White teaches at the U.C. Davis School of Law, where he supervises the Civil Rights Clinic. The Clinic has litigated prisoner civil rights cases in the Eastern District for over a decade, and can provide information, sample pleadings, and other resources to pro bono counsel.

1. The State Bar Act, Calif. Bus. & Prof. Code ß 6148, requires a written agreement in any case "in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars." An attorney's entitlement to prevailing party fees does not make the case a "fee generating case" that would preclude the advancement of case expenses and depositions costs under E.D. Cal. General Order 230 and Calif. Bus. & Prof. Code ß 8030.4. The representation agreement can clarify the plaintiff's obligation to repay these expenses in the event of a successful outcome of the case.

2. Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003).

3. See Fed. R. Civ. Proc. 15(a).

4. Rule 15(d) allows "a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented," which can include the court's appointment of counsel foe the plaintiff. Pro se litigants are not generally entitled to attorney's fees awards, which are available to represented prevailing parties in civil rights cases pursuant to 42 U.S.C.§1988.

5. The threat of an attorney's fees award can encourage a defendant to settle, but bear in mind that in damages cases the Prison Litigation Reform Act (PLRA) limits not only hourly rates of attorney's fees, but in damages-only cases to 150% of the damages awarded. 42 U.S.C. §1997e(d) (there are several instances of $1.50 awards on $1 nominal damage jury awards). This is why in selecting a case, or in amending the complaint, counsel should search for issues that can include claims for injunctive relief.

6. 42 U.S.C. § 1997e(a)

7. Cal. Admin. Code tit. 15, ß 3178.

8. E.g., Cal. Admin. Code tit. 15, ß 3174 (standards of dress for inmate visitors). See also, Inmate Visiting Guidelines, http://www.cya.ca. gov/Visitors/docs/InmateVisitingGuidelines.pdf.

9. Fed. R. Ev. 609. Convictions more than ten years old and juvenile adjudications are generally not admissible, and the admissibility of any conviction is always subject to objection under Evidence Rule 403 as more prejudicial than probative.

10. Fed. R. Civ. Proc. 26(a)(1).

11. Fed. R. Civ. Proc. 26(a)(1)(E)(iii).

12. Fed. R. Civ. Proc. 26(a)(2).

13. Calif. Rules of Professional Conduct, Rule 3- 700(D).

14. Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 473 (9th Cir.1992), cert. denied 506 U.S. 868 (1992).

15. Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989).

16. 28 U.S.C. ß 1651(a) and 28 U.S.C. § 2241(c)(5); Wiggins v. County of Alameda, 717 F.2d 466, 468 n. 1 (9th Cir.1983); Greene v. Prunty, 938 F.Supp. 637 (S.D. Cal. 1996).

17. See also 42 U.S.C. ß 1997e(f)(1) (requiring prisoner participation in pretrial matters in civil rights cases be "by telephone, video conference, or other telecommunications technology without removing the prisoner from the facility in which the prisoner is confined." All California prisons are now equipped with video conferencing equipment that can be used for this purpose.

18. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1590 (2003) (citing several studies, including one by Eastern District Magistrate Judge Kimberly Mueller). The Schlanger article contains a helpful if exhaustive discussion of settlement factors in these cases.

19. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 807, 110 Stat. 1321-75 to -76, reprinted in 18 U.S.C. § 3626 (note).

May / June 2006