All litigants deserve their day in court. The right to access the judicial system is supported by lofty frameworks found within federal and state constitutions.1  Despite the breadth of these constitutional provisions (and broad statutory protections designed to give low-income litigants access to the courts), real-world practicalities limit litigant access. Chiefly, the lack of adequate financial resources bars the courthouse doors to many would-be litigants.

In 2021, 37.9 million people in the United States—11.6% of the population—lived in poverty.2  A higher proportion of people in Louisiana live in poverty than in all but one other state.3  One scholar recently presented the stark reality: “Forty percent of American adults report not having the savings to cover a $400 emergency—the same amount it costs to file a case in federal court.”4

To prevent court access from being merely a right on paper for those lacking financial means, federal and state legislation has long provided litigants with the ability to proceed in forma pauperis (IFP). From the Latin “in the form of the pauper,”5  IFP status permits “a litigant to proceed without prepayment of costs or furnishing of bond.”6  Nearly a century ago, the Court of Appeal of Orleans Parish summarized the legislation’s purpose: “It is essentially the poor man’s legislation, without which the remedies afforded him by law would be vain and useless.”7

• 1On these constitutional provisions, see Section 2.
• 2 Joseph Dalaker, Cong. Rsch. Serv., R47354, Poverty in the United States in 2021 at 1 (2022).
• 3Id. at 13 (reporting Louisiana’s 17.3% poverty rate as second only to Mississippi’s 18.1%).
• 4Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1481 (2019).
• 5Martin v. Martin, 39,631, p. 11 (La. App. 2 Cir. 5/18/05), 903 So. 2d 619, 625.
• 6Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 140 (La. 1977); see also La. C.C.P. art. 5181 (“[A]n individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.”).
• 7Singleton v. First Nat’l Life Ins. Co., 157 So. 620, 622 (Orleans Ct. App. 1934).

Court access is a hallmark of the Anglo-American legal system, with Magna Carta itself broadly providing for the right.1  The U.S. and Louisiana Constitutions provide the contemporary backdrop for formal, statutory IFP enactments. Scholars have read into the federal constitution a right of access to the court system—the so-called “right to a remedy”—through the First Amendment2  and the Due Process3  and Equal Protection4  Clauses of the Fourteenth Amendment.

Although the U.S. Constitution provides a general framework for court access,5  states have gone further to make access an assurance. Along with thirty-nine other states,6  Louisiana specifically inscribes the right to court access in its constitution: “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”7  This provision’s placement in Article I of the Louisiana Constitution is significant for two reasons. First, court access is tied to Louisiana’s due process protections.8  Second, the provision—along with the remainder of rights declared in Article I—is not expressed as a grant from the state sovereign, but as a recognition of an individual right: “The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.”9  As an inalienable right, a litigant’s access to the court cannot be stripped. IFP protections secure that right.

• 1Chapter 29 of the 1225 Magna Carta states: No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice. Magna Carta ch. 29 (trans. Nicholas Vincent, Nat’l Archives & Records Admin, n.d.) (1225).
• 2See Benjamin Plener Cover, The First Amendment Right to a Remedy, 50 U.C. Davis L. Rev. 1741, 1747 (2017) (arguing that the First Amendment’s Petition Clause “includes the limited right of a person who suffers legal injury (or a sufficient threat thereof) to obtain a minimally adequate remedy from the courts”).
• 3See Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to A Remedy Under Due Process, 41 San Diego L. Rev. 1633, 1634 (2004) (positing that “the right to a remedy is a fundamental right” secured by the Due Process Clause); John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to A Law for the Redress of Wrongs, 115 Yale L.J. 524, 529 (2005).
• 4Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J. 507, 566–68 (1991).
• 51 Jennifer Friesen, State Constitutional Law § 6-1 n.1 (3d ed. 2000) (“It is unclear, outside the criminal context, to what extent the Federal Constitution requires the states to assure meaningful access to courts to enforce ordinary civil claims.”).
• 6See Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U.L. Rev. 1309, 1310, n.6 (2003) (“The most widespread and important of these unique state provisions is probably the guarantee of a right of access to the courts to obtain a remedy for injury.”).
• 7La. Const. art. I, § 22.
• 8Id. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due process of law.”).
• 9Id. art. I, § 1.

IFP status is available in nearly every conceivable litigation: for litigants in criminal and civil actions, in jury and bench trials, for plaintiffs and defendants, and on direct and discretionary appeals.1  Although court access is a right for Louisiana citizens,2  IFP status is, strictly speaking, defined as a “privilege,”3  not a right. Louisiana courts have focused on this privilege language, asserting that a litigant “seeking to take advantage of this privilege must clearly be entitled to it.”4  Acknowledging the distinction of IFP status from that of a strict right, the Louisiana Supreme Court in Benjamin v. National Super Markets, Inc., nevertheless distinguished a “privilege” from a mere discretionary “luxury”:

[A]n individual’s privilege to litigate his claim in our courts is not regarded as a luxury. Rather, it is regarded as a privilege granted him in the interest of individual justice to him, and in the interest of a judicial system designed to provide justice for all. The grant of the privilege to litigate without prepayment of costs is designed to deny depriving any individual of his day in court merely because of his lack of financial means to pay or secure court costs.5

Neither an absolute right nor an unnecessary luxury, IFP status requires an initial determination of a litigant’s eligibility for the privilege. This determination is made following the Code of Civil Procedure, which requires a litigant to satisfy certain financial requirements (to prove indigency) and to complete specific procedural steps.

• 1See La. C.C.P. art. 5181(A) (“[A]n individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court . . . .” (emphasis added)). The special requirements and restrictions apply to prisoners seeking to proceed IFP are discussed in Section 12.1.
• 2La. Const. art. I, § 22.
• 3See La. C.C.P.. arts. 5182 (“The privilege granted by this Chapter . . .” (emphasis added)), 5183 (“A person who wishes to exercise the privilege granted in this Chapter . . .” (emphasis added)), 5185 (“The court shall make a private inquiry into the facts and, if satisfied that the party is entitled to the privilege . . .” (emphasis added)).
• 4Lepine v. Lepine, 17-45, p. 7 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 672 (“Pauper status, or the ability to litigate without prior payment of costs is a privilege, not a right, and one seeking to take advantage of this privilege must clearly be entitled to it . . . .”).
• 5Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).

When a litigant submits a completed IFP application, a Louisiana court has three options: (1) grant IFP status to the applicant, (2) “[d]en[y] the application with written reasons for such denial[,]” or (3) “[s]et[] the matter for a contradictory hearing.”1  As in every procedural stage, the court should liberally construe the IFP application and favor the litigant’s day in court.2  However, once made, the court’s determination is given great deference and is reviewed only for abuse of discretion.3  This standard favors deference towards the trial court in its application of the indigency balancing test.4  Nevertheless, if the trial court’s denial was procedurally defective (i.e., lacked written reasons or the opportunity for a contradictory hearing), the court of appeal should return the case to the trial court for reconsideration.5  

If a trial court denies IFP status, an applicant can seek immediate review via a supervisory writ or wait and appeal the denial after a final judgment.6  As IFP denials cause irreparable injury, an applicant can properly appeal the interlocutory ruling as of right to the intermediate appellate court.7  Because the applicant has alleged indigency, the Louisiana Supreme Court has repeatedly ruled that an IFP applicant should be permitted to appeal a denial through a supervisory writ without paying the appellate filing fee.8  This exemption from filing fees also extends to appeals of IFP denials after final judgment; in that case, Louisiana courts address the IFP issue before considering the merits of the appeal.9  However, in order to appeal an IFP denial, the applicant must have actually applied for IFP status in the lower court.10

Significantly, in the case of a denial, the court renders the ruling, not the clerk of court. Because the Code of Civil Procedure leaves the choice of whether to require the recommendation to individual courts, a clerk’s recommendation of indigency status is not a pre-requisite for a court determination.11  Put another way, the clerk may sign off on the request but cannot deny it.12

• 1La. C.C.P. art. 5183(B)(1).
• 2See Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).
• 3See Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108 (“The trial court is afforded wide discretion in determining whether to grant the privilege to litigate in forma pauperis. Such discretion must be exercised reasonably and is subject to review for abuse.”); Donley v. Hudson’s Salvage LLC, 2013-1499 (La. App. 1 Cir. 3/21/14), 2014 WL 1165871, at *3 (“In the absence of a clear abuse of that discretion, an appellate court will not disturb the trial court's finding.”).
• 4See, e.g., Howard v. W. Auto Supply Co., 192 So. 137, 137–38 (Orleans Ct. App. 1939). In Howard, the deferential standard of review proved controlling, as the appellate court affirmed an IFP denial even though the applicant had a “meager monthly income”: It is difficult, if not impossible, for us to believe that after plaintiff, from his meager monthly income of $57.19, which he receives only when he works full time, has paid the necessary cost of maintaining his family of five, there can be anything left for the payment of costs of litigation, and yet we realize that the income of plaintiff is probably more than is earned by countless thousands of other persons in the same social status and that many of these others are able, out of similar earnings, to pay the costs of such litigation as they may find it necessary to undertake. Still, we feel that our brother of the trial court must have fully satisfied himself in the premises, and it is well established that, in such matters, the trial judge has discretion which should not be disturbed or interfered with unless there is a showing of manifest error. Id.
• 5La. C.C.P. art. 5183(B)(1); see, e.g., Square v. Paynes, 2022-0385, p. 1 (La. App. 1 Cir. 7/18/22), 2022 WL 2802803 (“[Mover] did not receive any notice of the hearing on the motion . . . . Furthermore, the family court failed to give written reasons explaining why the presumption that the mover is entitled to proceed in forma pauperis was rebutted.”); Arvie v. Cullivan, 2018-1871, p. 1 (La. 1/18/19), 261 So. 3d 771, 772 (Hughes, J., dissenting) (“Respectfully, the trial court denied the motion to proceed in forma pauperis without a hearing and without reasons, by merely writing ‘denied’ on the motion . . . . The law is clear. It was error to deny the motion without a hearing and evidence to rebut the presumption.”). But see State in re A.C., 2020-0828, p. 7 (La. App. 1 Cir. 2/19/21), 2021 WL 651122 (finding, based on La. Ch.C. art. 321, that IFP applicant had no such right to a contradictory hearing because the Children’s Code “imposes no such requirement on the court in determining a party’s ability to pay court costs”).
• 6See A.C., 2020-0828, p. 3, 2021 WL 651122. Although both options are open to a denied applicant, Louisiana courts favor review through supervisory writ. See Starks v. Universal Life Ins. Co., 95-1003, p. 12 (La. App. 1 Cir. 12/15/95), 666 So. 2d 387, 394 n.4 (“We note that the more appropriate way to challenge the trial court’s denial of a request to proceed in forma pauperis is to invoke this court’s supervisory jurisdiction by applying for writs.”).
• 7See Faucheaux v. Commercial Union Ins. Co., 342 So. 2d 269, 269–70 (La. App. 3 Cir. 1977) (quoting Shaneville v. Toye Bros., 173 So. 464 (Orleans Ct. App. 1937)). Although intermediate appellate courts must review a trial court’s IFP denial, the Louisiana Supreme Court has the discretion whether to review an intermediate appellate court’s IFP ruling. See Rules of Supreme Court of Louisiana, Rule X (Writ Applications). The Supreme Court provides five possible grounds for writ consideration: (1) Conflicting Decisions, (2) Significant Unresolved Issues of Law, (3) Overruling or Modification of Controlling Precedents, (4) Erroneous Interpretation or Application of Constitution or Laws, and (5) Gross Departure from Proper Judicial Proceedings. Id.
• 8Richardson v. Say, 98-1094 (La. 5/29/98), 719 So. 2d 1271 (“Granted and transferred to the court of appeal for consideration on the merits without the payment of a filing fee.”); Kenner Reg’l Med. Ctr. v. Mensingh, 98-0186 (La. 1/22/98), 709 So. 2d 684, 685 (“Where relator is seeking review of the denial of an application to proceed in forma pauperis, the clerk of court shall allow the application to be filed without the payment of costs.”); Riebow v. Riebow, 97-3093 (La. 1/9/98), 705 So. 2d 1086 (same); Language v. Language, 96-1874 (La. 10/25/96), 681 So. 2d 350, 351 (same); Peterson v. Peterson, 97-0144 (La. 3/7/97), 691 So. 2d 664, 665 (same); Cook v. Cook, 98-0023 (La. 1/9/98), 705 So. 2d 1087 (same).
• 9See A.C., 2020-0828, p. 3, 2021 WL 651122.
• 10See Harrison v. Minardi, 2007-514, p. 4 (La. App. 3 Cir. 10/31/07), 968 So. 2d 1221, 1224 (affirming dismissal when IFP paperwork arrived three days after surety bond deadline, thereby preventing trial court from considering the application and appellate court from considering appeal of status); Clarkston v. Funderburk, 2016-681, p. 10 (La. App. 3 Cir. 2/1/17), 211 So. 3d 509, 514 (same, as litigant “failed to apply for pauper status and did nothing during the six weeks given for posting the bond, or during the thirty additional days that she received on her request for an extension, to improve her position”).
• 11La. C.C.P. art. 5183(B)(1) (“Upon the filing of the completed application and supporting affidavits, the court shall render an order . . . .”).
• 12See La. C.C.P. art. 283(A)(4) (“The clerk of a district court may sign any of the following orders or judgments: . . . (4) An order to permit a party to institute and prosecute, or to defend, a suit without the payment of costs, under the provisions of Articles 5181 through 5188.”).

A court may provide a litigant who fails to completely comply with IFP application procedures with a chance to cure an error or incomplete submissions. Most often, lack of compliance involves deficiencies with the applicant’s affidavit. In Boudreaux v. Rossen, the First Circuit laid out a curing measure nearly a century ago.1  During his IFP application before the district court, the plaintiff provided two third-party affidavits but only swore in open court that he was indigent.2  The trial judge granted IFP status, which the defendant immediately objected to because of the plaintiff’s failure to submit his own affidavit.3  In granting the plaintiff a ten-day extension to file such an affidavit, the trial judge determined that “there had not been a compliance with the mandatory provisions of the statute, but . . . there appeared to have been an honest effort on the part of plaintiff to do so . . . .”4  The First Circuit affirmed the curing remedy.5

This “honest effort” measure is also applicable when the clerk of court makes a mistake. In Roy v. Gulf States Utilities Co., the Third Circuit considered a challenge to IFP status when the the application lacked the required third-party affidavit.6  Despite this lack of compliance with the statute, the appellate court refused to find that the IFP order was an absolute nullity.7  Rather, it determined that the mistake was only a “relative nullity, and that it could be ratified or confirmed by the trial court after the required affidavits were supplied.”8

In other cases, Louisiana courts revive procedurally defective IFP applications when a litigant is especially vulnerable. For instance, in a disavowal action, a man was granted a judgment that he was not the father of a four-and-one-half-month-old baby.9  In order for the baby’s court-appointed attorney to appeal, he needed to either produce an appeal bond or have the court grant IFP status to the newborn.10  Although it was unquestioned that a newborn cannot pay court fees, it was unclear if the mother could—a question that remained open because the mother neither answered citation for the case nor could be found.11  With no other recourse, the attorney himself signed the child’s IFP affidavit.12  Only after the alleged father challenged the IFP status was the infant’s mother found and persuaded to sign an affidavit.13  Nevertheless, the plaintiff contended that it was all too late and that the attorney’s affidavit could not support IFP status for the child.14  Moving to dismiss the case on the grounds of failure to conform with IFP guidelines or, in the alternative, to produce an appellate bond, the alleged father argued that no appeal had been perfected.15  The Third Circuit disagreed, not merely because of the late-arriving affidavit from the child’s mother but also because of the attorney’s earlier actions.16  Expanding upon previous expressions of honest effort, the court observed, “Whether one is entitled to so proceed should depend not so much on the technical requirements of the pleadings involved but on the nature of the proceeding . . . .”17  This ruling suggests that technical requirements for IFP applications may be loosened if the individuals affected clearly lack the ability to access to courts in any other way.

Although some reported cases reference technical failures in the IFP application in decisions affirming the denial of IFP status, careful reading of those decisions reveals that the technical errors were not the reason for the courts’ decisions. For instance, in the review of a succession fight between three brothers, the Fourth Circuit combed through various financial discrepancies between the applicant’s statements and his living arrangements, which included residing rent-free in a succession property.18  When listing the facts it considered, the court stated that “the relator did not provide an affidavit of a person supporting the mover’s pauper status as required by La. C.C.P. art. 5183(2).”19  Although the court mentioned this technical deficiency in the application, the court affirmed the revocation of IFP status based on the trial court’s finding that the litigant had assets sufficient to make him ineligible for IFP status.20

Some application failures, however, are incurable. For instance, a litigant who never filed an IFP request in the trial court but nevertheless argues on appeal that trial court fees should not be assessed is unlikely to be allowed to cure the failure to file an initial application for IFP status.21  Further, a cover letter indicating that an IFP application will be filed is insufficient as a stand-in for a litigant’s affidavit.22

Put together, Louisiana courts do not find technical application errors fatal, but curing is most likely in cases of “honest effort,” a measure determined by the circumstances of the error, the nature of the litigation, and the applicant’s litigation conduct.

• 1Boudreaux v. Rossen, 139 So. 706 (La. App. 1 Cir. 1932).
• 2Id. at 707.
• 3Id.
• 4Id.
• 5Id.
• 6Roy v. Gulf States Utilities Co., 307 So. 2d 758, 761 (La. App. 3 Cir. 1975).
• 7Id.
• 8Id.
• 9Enterkin v. Devaux, 266 So. 2d 721, 722 (La. App. 3 Cir. 1972).
• 10Id. For a full discussion on IFP’s relationship to appeal bonds, see Section 10.
• 11Enterkin, 266 So. 2d at 722.
• 12Id.
• 13Id. at 723.
• 14Id. at 722.
• 15Id. at 723.
• 16Id. (“[T]he redactors of the Code of Civil Procedure did not intend to cut off an indigent infant’s right to appeal by providing that he could be sued through a court appointed attorney when no tutor had been appointed. This motion has revealed a hiatus in the law.”).
• 17Id.; see also id. at 722 (“The affidavits which plaintiff-appellee contend are sacramental are mere annexations to the application to proceed in forma pauperis.”).
• 18Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108.
• 19Id.
• 20Id. The Ainsworth court also considered whether the applicant-brother’s IFP challenge was a product of a broader litigation strategy: The relator’s portion of the inheritances is delayed by his challenge to his aunt’s will, as well as his challenge to the partition of his father’s property at issue. The record shows that the relator filed various pleadings with claims that are needlessly repetitive. The relator should not be entitled to abuse the system by continuing to file extensive pleadings that result in needless delay. We infer that the most likely reason for this delay is for the relator to continue to live on the property rent-free. Id. Thus, the applicant’s litigation conduct is also a factor in determining whether the applicant will be allowed to cure a technical defect.
• 21See State ex rel. J.W., 2000-1445, p. 7 (La. App. 4 Cir. 1/10/01), 779 So. 2d 961, 966.
• 22See Tenney v. Burlington N. & Sante Fe Ry. Co., 2003-1260, p. 5 (La. 1/21/04), 863 So. 2d 526, 529 (“By itself, this cover letter cannot be construed as an ex parte written motion which would satisfy La. Code Civ. P. art. 5183, as no pauper affidavits are attached to the letter.”).

Even if the court grants IFP status, it can be challenged through a traversal of the submitted affidavits. Articles 5183 and 5184 of the Code of Civil Procedure name three possible challengers: the court,1  the adverse party, or the clerk of court.2  The court has no apparent limitation to the procedural timing of its sua sponte review, as such review is seen as in keeping with the court’s “authority and duty to subject forma pauperis orders to continuing scrutiny to prevent abuse.”3  Any reversal of status, however, must be preceded by a contradictory hearing.4  Even in a summary proceeding, a court must offer an IFP litigant sufficient notice of the contradictory hearing.5

The adverse party and the clerk of court, on the other hand, have clear limitations on their traversal. Chiefly, Article 5184 provides that “only one rule to traverse the affidavit of poverty shall be allowed . . . .”6  Because there is no statutory deadline before which a traversal must be made, courts look to equity and generally find that gaps in years or even months between IFP grant and challenge to be too long.7  Further, traversal is properly made at the trial court level, not for the first time on appeal.8  However, equity also cuts in favor of the adverse party; when an IFP litigant has a change in economic circumstances, a later traversal is allowed.9

• 1La C.C.P. art. 5183(B)(3) (“The court may reconsider its original order granting the application on its own motion at any time in a contradictory hearing.”).
• 2La C.C.P. art. 5184(A) (“An adverse party or the clerk of the court in which the litigation is pending may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter . . . .”).
• 3City Stores Co. v. Petersen, 268 So. 2d 662, 663 (La. 1972) (“A trial judge may, therefore, reconsider a poverty determination whenever he has cause to believe either that circumstances have changed or that the order was improvidently granted.”).
• 4Id.
• 5See Cloud v. Dean, 2015-297, p. 11 (La. App. 3 Cir. 12/16/15), 181 So. 3d 936, 943 (reversing the removal of IFP status and remanding the issue for an evidentiary hearing due to “failure to serve [litigant] with the Rule to Traverse Pauper Status”).
• 6La. C.C.P. art. 5183(A).
• 7See McKellar v. Mason, 154 So. 2d 237 (La. App. 4 Cir. 1965) (nine months); Darby v. Travelers Ins. Co., 272 So. 2d 798, 799 (La. App. 3 Cir. 1973) (four years); Ross v. Hatchette, 247 So. 2d 399, 400 (La. App. 4 Cir. 1971) (nine years).
• 8See Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 672–73 (“Troy seeks to challenge Mindy’s pauper status for the first time in this appeal. As a general rule, appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed.”). But see Buckley v. Thibodaux, 159 So. 603, 605 (La. 1935) (permitting a traversal on appeal “if sufficient time for the traverse was not allowed in the court which rendered the judgment”).
• 9See Golden v. Cromwell, 407 So. 2d 523 (La. App. 3 Cir. 1981) (remanding case for traversal four years after the granting of IFP status because applicant became newly employed); Doyle v. Aetna Life & Cas. Co., 309 So. 2d 803, 803–04 (La. App. 3 Cir. 1974) (remanding case for traversal after appeal lodged when during the course of litigation IFP plaintiff’s husband died, leaving her “considerable properties”).

An IFP litigant is allowed to appeal a final judgment without paying the filing fee, but only devolutively, not suspensively.1  The two appeals differ in their procedural timeframe,2  their bond requirements,3  and, most critically, their effect on the final judgment.4  Basically, a litigant is permitted to proceed IFP on appeal (i.e., without paying fees) in cases that do not require an appeal bond, that is, devolutive appeals.5  An IFP litigant is also relieved from the responsibility of posting security in the trial court even if the defendant requests it.6  This waiver is of particular importance in medical malpractice suits which, as a general rule, require the plaintiff to post a bond for the costs of the medical review panel when the panel has found unanimously in favor of the healthcare provider.7

With IFP litigants, courts have found that filing for or being improperly granted a suspensive appeal is sufficient preserve the right to take a devolutive appeal and will convert the former to the latter.8  Eviction cases, however, present a significant appeal challenge for the IFP litigant.9  For one, trial courts lack the discretion to convert the filing for a suspensive appeal into a devolutive appeal.10  Further, in the eviction context, the difference between the two appeals is stark: “[I]f the evictee takes a suspensive appeal he retains possession of the premises; however, as a general rule, if he takes a devolutive appeal his only relief is monetary damages for wrongful eviction.”11  Put together, this means that an IFP tenant, who is only entitled to a devolutive appeal, risks losing residency and any relief by filing a suspensive appeal and failing to pay the court-determined appeal bond.

Recent cases, however, offer IFP tenants some hope. Weighing in on an eviction dispute, the First Circuit granted an IFP litigant’s supervisory writ in order to describe an alternative to a suspensive appeal bond.12  After vacating the trial court’s notice of appeal costs, the appellate court determined that the $6,000 appeal bond was an abuse of discretion.13  A more equitable—and apparently viable—option for bond payment existed: “An alternative in such cases in the setting of such bonds is to require the appealing party to pay her rent into the registry of the court each month as it becomes due, and we find that this alternative would be reasonable herein.”14  The court’s reasoning corresponds with the purpose of a suspensive appeal bond: “to protect the appellee against all such damage as he may sustain as a result of the appeal.”15

One additional bond-related consideration for tenants arises from the court in which the eviction has been brought. Justice of the Peace courts have concurrent jurisdiction with parish or district courts “over suits by landowners or lessors for the eviction of occupants or tenants of leased residential premises, regardless of the amount of monthly or yearly rent or the rent for the unexpired term of the lease.”16  Significantly for the IFP litigant, an appeal from a justice of the peace eviction is heard “de novo in the district court or the parish court,” and so does not require a bond.17

• 1La. C.C.P. art. 5185(A)(5) (“[T]he party is entitled to . . . [t]he right to a devolutive appeal . . . .); La. C.C.P. art. 5185(B) (“The party is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless the party furnishes the necessary security therefor.”).
• 2A suspensive appeal generally must be filed within thirty days of the trial judgment becoming final, whereas the devolutive appeal filing deadline extends to sixty days. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 3La. C.C.P. art. 2123(A) (“No security is required for a devolutive appeal.”); id. art. 2123(B) (fixing the amount of security in a suspensive appeal as, generally, the judgment amount plus interest or party damage from delay).
• 4A suspensive appeal literally “suspends the effect or the execution of an appealable order or judgment,” whereas a devolutive appeal does not. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 5Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 6See La. R.S. 13:4522 (“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case . . . . This section shall not apply to . . . cases brought in forma pauperis . . . .”).
• 7See, e.g., Tate v. Ochsner Clinic Found., 16-140 (La. App. 5 Cir. 12/7/16), 205 So. 3d 996, 1001 (“[W]e find that the granting of pauper status under La. C.C.P. art 5181 et seq. relieved plaintiffs of the statutory bond requirement provided in La. R.S. 40:1299.47(I)(2)(c).”).
• 8La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”); see, e.g., Frandria v. Holden, 2020-0410, p. 5 (La. App. 1 Cir. 12/30/20), 319 So. 3d 332, 337 (citation omitted) (“Frandria is proceeding in the trial court in forma pauperis and would not be entitled to a suspensive appeal. Accordingly, we treat this appeal as a devolutive appeal.”); Muller v. Fort Pike Volunteer Fire Dep’t, 2019-0156, p. 6 (La. App. 4 Cir. 6/26/19), 275 So. 3d 927, 932 (“The record does not reflect that Mr. Muller paid the appeal bond. Accordingly, we convert his suspensive appeal to a devolutive appeal.”); White v. Rogers, 04-1434, pp. 3–4 (La. App. 5 Cir. 4/26/05), 905 So. 2d 1088, 1090 (“The suspensive appeal was erroneously granted because no security was provided . . . . Plaintiffs are entitled to a devolutive appeal, which is timely, since the motion for appeal was filed on July 9, 2004, or within 60 days from the expiration of the 7 day delay for applying for a new trial . . . .”); Bass v. Serv. Pipe Trucking Co., Inc., 267 So. 2d 63, 63–64 (La. App. 3 Cir. 1972) (“Insofar as the appeal purports to suspend the judgment, it must be dismissed. However, since the order granting plaintiff-appellant’s appeal in forma pauperis was signed within the delay allowed for a devolutive appeal, this appeal will be upheld as a devolutive appeal.”).
• 9For a more detailed discussion of appellate practice in eviction cases, see Section 9 of the chapter on landlord-tenant law.
• 10La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”).
• 11New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-0055, pp. 3–4 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186, 1189.
• 12Jenkins v. Johnson, 2019-0985, p. 1 (La. App. 1 Cir. 7/29/19), 2019 WL 3407178.
• 13Id.
• 14Id. The First Circuit is not alone in coming to this rent-as-suspensive-bond conclusion. See Windmill Creek N. - 1st Lake v. Gowan, 20-85, pp. 1–2 (La. App. 5 Cir. 2/21/20), 2020 WL 875252; 429 Bourbon St., LLC v. RMDR Investments, Inc., 2016-0800, p. 22 (La. App. 4 Cir. 11/15/17), 230 So. 3d 256, 270 (“In eviction matters, the district court has the discretion to set the amount of the suspensive appeal bond in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”); Lakewind E. Apartments v. Poreé, 629 So. 2d 422, 423 (La. App. 4 Cir. 1993). The Lakewind court described the situation as the trial court’s selection between two options: In order to set a suspensive appeal bond sufficient to protect the appellee in this type of case, the trial court has two choices. One alternative would be to attempt to estimate the amount of time the case might be on appeal, then multiply that number of months times the rental price. The other alternative would be to do exactly what the trial judge did in this case and require the appellant to post the rental amounts as the rent becomes due. Lakewind E. Apartments, 629 So. 2d at 423. Building on this background, the Windmill Creek court explained why rent is perfectly suited as a bond alternative: Because the purpose of a bond is to protect the appellee against damages he may sustain as a result of the appeal, and because we recognize that the damages typically contemplated in cases of eviction are the potential lost rents to the landlord while an appeal is pending, we find that, in light of Relator’s pauper status, to the extent that the trial court ordered Relator to post $764 immediately into the court registry as bond, we find that the trial court abused its discretion. The landlord is unlikely to sustain any monetary damages while awaiting trial de novo in this case because the February rent has been paid, and the Relator has agreed to place the March rent into the court registry prior to the trial scheduled on March 3, 2020. We find this to be an acceptable alternative. Therefore, we vacate the lower court’s ruling, which conditioned the stay of the judgement of eviction upon the immediate posting of $764 rent into the registry court, and instead order Relator to pay her rent into the registry of the court when it becomes due in March 2020. Windmill Creek N. - 1st Lake, 20-85, pp. 1–2, 2020 WL 875252.
• 15La. C.C.P. art. 4735. Even in the case of a suspensive bond, the IFP litigant may be permitted to post a surety bond, rather than a cash bond. See La. C.C.P. art. 5121 (emphasis added) (“When a party to a judicial proceeding is required by law or order of court to furnish security, any bond so furnished shall be made payable to the clerk of the trial court in which the proceeding was brought.”). When considering an appeal bond, “the trial court has jurisdiction [to] . . . [t]est the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond.” La. C.C.P. art. 2088. As the Fourth Circuit determined, “The trial court is vested with the jurisdiction to test the solvency of the surety, the substance, and sufficiency of the appeal bond; however we do not find that the trial court is vested with the discretion of mandating the type of the appeal bond.” Filmore Parc Apartments v. Howard, No. 2004-C-1299 (La. App. 4 Cir. 7/30/2004).
• 16La. C.C.P. art. 4912.
• 17La. C.C.P. art. 4925 (requiring an appeal filing within fifteen days of judgment).

Despite parties’ broad statutory authority to compromise their disputes, Louisiana law places additional restrictions on IFP litigants’ ability to settle their claims. Applying general contract rules,1  Louisiana statutes provide no specific requirements for extra-judicial settlements of claims other than they be in writing or recited in open court2  and indicate the parties’ intent to extinguish obligations.3  However, a case involving an IFP litigant has an additional requirement: “No compromise shall be effected unless all costs due these officers have been paid.”4  If the settlement agreement is silent on this clear requirement, the Louisiana Code of Civil Procedure provides that each party is liable for all court costs.5  Further, no action may be dismissed by the court without payment of the costs first, with the clerk of court having the power to place a “lien for the payment of such costs superior to that of any other party on any monies or other assets transferred in settlement of such claim or satisfaction of such judgment” and even to “be entitled to collect reasonable attorney’s fees in any action to enforce this lien for the payment of such costs.”6

• 1See La. C.C. art. 3071 (“A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” (emphasis added)).
• 2La. C.C. art. 3072; see also Feingerts v. State Farm Mut. Auto. Ins. Co., 2012-1598, p. 11 (La. App. 4 Cir. 6/26/13), 117 So. 3d 1294, 1301 (“[N]o specific form is required for written compromises.”).
• 3See Alexius v. Booth, 2020-0332, p. 3 (La. App. 4 Cir. 1/13/21), 312 So. 3d 1122, 1124; Morris, Lee & Bayle, LLC v. Macquet, 2014-1080, pp. 15–16 (La. App. 4 Cir. 3/23/16), 192 So. 3d 198, 209 (citing Trahan v. Coca Cola Bottling Co. United, Inc., 04–0100, p. 10 (La. 3/2/05), 894 So. 2d 1096, 1104) (“An enforceable compromise agreement has two essential elements: (1) mutual intention of preventing or putting an end to the litigation and (2) reciprocal concessions of the parties to adjust their differences.”).
• 4La. C.C.P. art. 5187.
• 5Id.
• 6Id.

An IFP client is not prohibited from being represented by an attorney who is being paid. A 1935 decision from the Second Circuit found a litigant eligible for IFP status even though the litigant had paid for representation, apparently relying on the fact that the litigant’s relative had paid the filing fee.1  The exceptional fact was necessary, as the IFP statute at the time contained an attorney fee prohibition: “[A]ttorneys at law, representing such clients are prohibited from charging fees except such as are contingent upon the amount recovered.”2  Even in the face of a black-letter rule, courts reasoned that the law still had to look to the applicant’s financial status “as a whole”3  and could not consider the possibility of a sizable award generated from successful representation.4  Eventually, the statute dropped mention of attorney fees completely:

The former prohibition against attorneys charging fees in these cases except those contingent on the amount recovered, contained in the indirect source of this article, has not been retained in the Code. This prohibition was both unnecessary and unrealistic. The provisions of this Chapter will be used primarily in damage suits and workmen’s compensation cases in which, under the universal custom throughout the state, contingent fees are the only ones charged. To this extent, the prohibition was unnecessary. Further, there are some types of cases in which there are no pecuniary demands, and hence no amount which can ever be recovered. There is no reason why small fees should not be charged in such cases. To this extent, the former prohibition was unrealistic.5

As the above comment recognizes, a contingency fee is the most common type of fee agreement in the IFP context. A litigant can maintain IFP status even if the contract provides that the attorney will “advance all costs of litigation with reimbursement by the client at the conclusion of the suit.”6  Louisiana courts are consistent that the relevant inquiry is the IFP applicant’s indigency and that contingency-fee contracts should be ignored.7

One final attorney-fee wrinkle is the appointment of a curator. Although IFP status itself does not provide a litigant with an attorney, it may provide one for the litigant’s out-of-state opponent. In Jones v. Jones, the Supreme Court carefully weighed both the litigant’s IFP status and the law’s requirement of the appointment of a curator when “the defendant proceeded against is outside the jurisdiction of our courts.”8  As a rule, the fees for a curator are shouldered by the petitioning party.9  Ruling on equal protection grounds, the court determined that refusing to include curator fees within IFP coverage would deny indigent litigants the right to divorce if an out-of-state spouse could not be served.10  Applying this rationale, the Fourth Circuit stated the rule even more clearly: “A plaintiff proceeding in forma pauperis is not required to pay a curator’s fee.”11

• 1Jeffcoat v. Hammons, 160 So. 182, 184 (La. App. 2 Cir. 1935).
• 2Act No. 156, 1912 La. Acts 1, as amended by Act No. 260, 1918 La. Acts.
• 3Jeffcoat, 160 So. at 184–85 (“[W]e do not think a violation of the quoted provision would operate as a bar to the litigant’s right to avail himself of the act as a whole, if his financial condition and the facts of his case otherwise disclosed eligibility therefor.”).
• 4Loftin v. Frost-Johnson Lumber Co., 63 So. 252, 252 (La. 1913).
• 5La. C.C.P. art. 5182 cmt.
• 6Jackson v. Aetna Life & Cas. Co., 392 So. 2d 1073, 1074 (La. App. 3 Cir. 1980).
• 7See, e.g., id. at 1074–75 (“[I]n any event, we conclude that the right of an indigent should be determined by his ability to pre-pay the costs without examining any contingency fee contract entered into between the indigent and his attorney.”); Hudson v. Williams Olefins Dev., LLC, 2017-0705, p. 1 (La. App. 1 Cir. 7/11/17), 2017 WL 2981869 (“Consideration of the contingency fee agreements between plaintiffs and their counsel should not affect their pauper status.”).
• 8Jones v. Jones, 297 So. 2d 198, 200 (La. 1974); see also La. C.C.P. art. 5091(A) (providing that, in curator cases, “[t]he court shall appoint an attorney at law to represent the defendant . . . .”).
• 9La. C.C.P. art. 5096 (“The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.”).
• 10Jones, 297 So. 2d at 200.
• 11Warren v. Warren, 622 So. 2d 864, 866 (La. App. 4 Cir. 1993).

Through in forma pauperis status, Louisiana law provides essential court access to financially needy litigants. Although not a firm right, IFP status is granted by courts with the liberal application of statutes to on-the-ground, financial realities. Opening the courthouse doors to all litigants, IFP status still is not without its risks, specifically the delayed but binding bill at the end of unsuccessful litigation. Nonetheless, the privilege is a lifeline to many Louisiana litigants, preserving court access and due process by providing the basic services of court operation.

The Louisiana Supreme Court provides several IFP affidavits as pdf forms:

• IFP affidavit
• IFP affidavit for incarcerated petitioners in district court
• IFP affidavit for incarcerated appellants