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I've Got My Pro Se Packet, Now What?

Disclaimer: These materials give specific information about the procedures that a litigant must follow in a suit in the San Antonio Division of the United States District Court for the Western District of Texas. Different requirements may apply under the Local Rules and standing orders of other federal courts outside the Western District of Texas. Also, the information presented in these pages is for educational purposes only, and does not constitute legal advice. Every case is different, and the correct legal answer always depends on the facts of the individual case. If you want a legal opinion about your own case, you should seek help from a licensed attorney.

When you went U.S. District Clerk's office to find out how to file a lawsuit based on your EEOC charge, you were given a set of papers to complete, along with a list of attorneys who take employment law cases. Now that you have the court's pro se packet, there are two things you can do. First, make plans to complete and file your complaint well before the 90-day deadline described in the letter you received from the EEOC. Second, begin doing everything you can to get an attorney to represent you. You do NOT have to find an attorney before you file your complaint.

The first thing you can file with the clerk is the completed pro se complaint form. Be sure to read through all the material provided by the clerk and attach any required documents, such as a copy of the "right to sue" letter from the EEOC. At the same time, you can file a request to proceed "in forma pauperis" (IFP) so that you do not have to pay court costs such as filing fees. NOTE: All motions and pleadings you file with the court must be on letter-sized paper and must be punched with two holes at the top. (If you've never seen two-hole-punched paper, ask the clerk to show you an example. A two-hole puncher is available at most office supply stores for a few dollars.) Finally, you may ask the clerk for a free copy of the court's Local Rules, and for any standing orders that will apply to your case.

You could then concentrate on two activities: (1) continuing to try to find an attorney; and (2) filing a "Freedom of Information Act" request with the Equal Employment Opportunity Commission to obtain the "investigative file" on your EEOC charge. (This file may contain documents or information that could help you prove your case.) Try to contact every attorney on the court's list to find out whether they can take your case, and if so, how much they would charge you up-front to cover the costs of the lawsuit. Also, call the San Antonio Bar Association (227-1853) for a list of attorneys who will take employment law cases. Be sure to keep records of who you contacted, when you contacted them, and how they responded, because you'll need to provide this information to the judge.

When you have done everything possible to find an attorney, you can complete and file your request for a court-appointed attorney. Getting a court-appointed attorney is hard, but it may be your best shot at getting legal representation. The magistrate judge who rules on your request will consider how good your case looks, how competent you are to handle the case without an attorney, and how hard you have tried get a court- appointed attorney. Unfortunately, most literate people are considered competent to represent themselves. If you have a special problem that will make it hard to handle your case, such as a language barrier, a disability, or a very low level of education, it may help to put this information in your request. If you had a friend help you fill out your court papers, you could put this information in your request as well.

Within a few weeks after you file your lawsuit, the magistrate judge will make a decision about your requests (if any) for IFP status and for an attorney. Meanwhile, your complaint will be delivered to the defendant with a summons requiring the defendant to appear before the court by filing a written answer. Delivery of the complaint and summons is referred to as "service" or "service of process," and may be carried out by an approved "process server" such as the sheriff's office. The defendant has 20 days after service of the complaint in which to file an answer. You can find out the date when the complaint was served by checking with the district clerk's office. Defendants almost always meet this deadline, but if the defendant in your case does not, you can file a motion for default judgment (see Basic Motions in the San Antonio Division for more information). The defendant's answer may include a "motion to dismiss" or another motion to which you may need to respond. If the answer includes a motion, you must file a response on time if you want the court know you oppose the motion.

Once you get the defendant's answer, call the clerk's office to find out the official filing date of the answer. This date is used to calculate the first deadline in the lawsuit: your deadline for filing a proposed scheduling order. You have 30 days after the defendant files the answer in which to file a proposed scheduling order. If you do not file a proposed scheduling order, the court will create its own scheduling order. (See A Guide to the Scheduling Order for more information.)

After this point in the lawsuit, parties usually engage in three basic activities: (1) discovery; (2) pre-trial motions, and (3) settlement negotiations and alternative dispute resolution (ADR). "Discovery" refers to steps taken by each side to get information and documents from the other side. Pre-trial motions generally consist of attempts by the parties (1) to enforce the discovery rules, (2) to narrow the issues in the lawsuit, and (3) to win the lawsuit without having to go to trial. Settlement negotiations and ADR are efforts by the parties to reach an agreement that ends the lawsuit. The most important thing for you to remember is that you do not have to wait for the defendant to start any of these activities. The old saying, "the squeaky wheel gets the oil," applies here: taking an active role in your lawsuit will force the defendant to pay attention to your case and to take you more seriously. Actively participating in procedures such as discovery can also bring to light information that makes your case stronger, helping you respond to pre-trial motions filed by the defendant and increasing your chances of getting a reasonable settlement offer.

After the parties have had time to carry out discovery, to file pre-trial motions, and to try to settle the case, you (as the plaintiff) will have the responsibility of assembling and filing a "proposed pre-trial order" by the deadline listed in the court's scheduling order. Creating the pre-trial order will help you get prepared for the trial.

If your lawsuit is not settled or dismissed before trial, you will need to prepare to present your case in court. Make sure your witnesses agree to appear or arrange to have them subpoenaed. Prepare outlines of all the questions you intend to ask, and of an opening and closing statement in which you explain your case to the judge and/or jury. Organize your exhibits, and research the requirements you will need to meet in order to get them admitted into evidence. Research basic trial procedure to find out what motions you need to file during the trial and immediately afterward. Read a book on trial advocacy to learn what to do in the trial. Practice with a friend. Do your best. And be prepared for an appeal, whether you win or lose.

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This page was last updated on: 01/03/02