David Boies, left, and Richard Posner, right.

Talk about a legal dream team—Richard Posner, and now David Boies.

Considering he's practically the poster child for pro se litigants, William Bond sure is well-represented.

Boies has signed on to handle Bond's cert petition to the U.S. Supreme Court after the U.S. Court of Appeals for the Fourth Circuit shrugged off Bond's complaint.

“It's an important case,” Boies said in an interview—not so much because of the merits (or lack thereof) of Bond's underlying grievance, but the larger principle at stake. Pro se litigants “deserve better than the court simply saying they lose,” Boies said, adding that the Fourth Circuit “clearly gave [the case] the back of its hand.”

I've been following Bond's saga since Posner, who quit the U.S. Court of Appeals for the Seventh Circuit last year, agreed to represent him in his first post-retirement foray as an appellate advocate.

Posner is on a crusade for pro se litigants. In fact, he says he left the bench “because I had come to realize albeit belatedly that my court was systematically unjust to pro se's,” he wrote in the forward to a new book by a pro se litigant who won a federal jury trial (more on that below). “I felt that the pro se's, who number literally in the millions, deserved more consideration than we were giving them, and I was determined to help them.”

He founded The Posner Center of Justice for Pro Se's to provide pro bono representation, as well as assisting pro se litigants behind the scenes to help them to successfully represent themselves.

And he took up Bond's case. It's a convoluted civil complaint against three federal judges, an FBI agent and a U.S. marshal that's related to “a literary manuscript of high monetary and artistic value, which was taken and kept from plaintiff for no legitimate reason,” Bond wrote, alleging judicial misconduct and constitutional violations.

His first complaint was dismissed on multiple grounds—failure to state a claim, lack of jurisdiction over defendants in their official capacity, qualified immunity, lack of standing, failure to exhaust administrative remedies.

But when Bond sought to amend it with a bulked-up and revised second complaint—one that Posner noted “added specific allegations about how the actions of the government officials chilled his speech”—the court said no.

“Twice the district rejected Bond's effort to amend his complaint—both times without any explanation,” Posner wrote in his opening brief to the Fourth Circuit. “A court cannot simply deny a pro se litigant's attempt to cure defects in his complaint, without providing an explanation of why the proposed amended complaint allegedly falls short.”

The Fourth Circuit's response? Sure they can.

In an unsigned, seven-page per curiam decision that doesn't even contain the phrase pro se, the Fourth Circuit panel concluded that the lower court judge rejected Bond's amended complaint because it was futile—even though the judge didn't actually say that.

The district court's “failure to specifically articulate that rationale does not amount to an abuse of discretion,” the panel found in a decision that underscores exactly what Posner has been saying all along: Pro se litigants get no respect.

Boies said he was asked to come on board because Posner “was not in a position to take [the case] up to the Supreme Court.”

The Boies Schiller Flexner team also includes Joanna Wright and Emily Harris. Bond is also represented by Matthew Dowd of Dowd Scheffel.

Boies doesn't romanticize the nobility of all pro se litigants. “They can be annoying,” he said. And let's face it—they can. While some suits are legitimate cries for justice, others are trivial or incoherent or inappropriate. But they should all be entitled to basic due process and evaluation by the court.

There's actually a circuit split on how courts handle pro se claims. The Third, Seventh, Ninth, Eleventh and D.C. Circuits “have all held that the district court must provide reasons when dismissing a pro se litigant's complaint so that the pro se litigant is on notice and able to amend the complaint to cure the stated deficiencies,” Boies wrote on Friday in an application to the Supreme Court asking for an extension of time to file the cert petition.

Bond's case, he continued, “implicates serious access-to-justice concerns for litigants who often are the least experienced and least effective,” he wrote. “These jurisdictional disparities render the least sophisticated litigants vulnerable to having their potentially valid complaints dismissed because, absent assistance from counsel, these litigants are unable to independently page through the record and identify the district court's implicit reason for dismissing their complaint.”

 

The Pro Se Litigant Who Won a Federal Jury Trial

Brian Vukadinovich was a high school shop teacher in northern Indiana when his job was terminated.

He sued his employer, the Hanover Community School Corporation, in federal court—and he won, beating a team of experienced lawyers from Frost Brown Todd and Newby, Lewis, Kaminski & Jones. After a five-day trial, a jury in 2016 awarded him $203,840.39 in damages for violating his due process rights.

Now the executive director of The Posner Center, Vukadinovich just wrote a book, “Motion for Justice: I Rest My Case” about his experience as a pro se litigant.

It's not pretty.

“For those who do not have the ability to pay, they find out rather quickly that, in the end, they essentially have no rights,” he wrote. “And you may wonder, how can this be when we are taught that every person in our country has certain inalienable rights? The honest answer to this question is very simple. It is called our 'system of justice!'”

Vukadinovich is understandably delighted with his victory. The chapter in his book describing his closing argument is particularly powerful. Here's how he recounts the aftermath, as he looked over at opposing counsel:

The “lawyers knew they were whipped and were going to lose. I could see it in their eyes as they sat there motionless, each with a very worried look on their faces. They thought they could just come to the trial and lie and get away with what they did. I am sure they probably figured that there was no way that a shop teacher would be able to go into a weeklong federal jury trial without a lawyer and present his case and be able to beat them and their team of lawyers. They were very wrong!”

Check out his book here.

 

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