Judicial Ethics & Self-Represented Litigants

From the Executive Summary:

The responsibility of ensuring a fair trial in cases involving self-represented litigants requires patience, skill, and understanding on the part of the trial judge. Under the code of judicial conduct, no reasonable question is raised about a judge’s impartiality when the judge, in an exercise of discretion, makes procedural accommodations that will provide a self-represented litigant acting in good faith the opportunity to have his or her case fairly heard — and, therefore, a judge should do so. The concept of judicial impartiality does not require an inflexible approach to courtroom procedures that sacrifices fairness, courtesy, and effectiveness. Providing reasonable accommodations for pro se litigants is consistent with the discretion a judge has to control parties and proceedings and with the role of a judge as more than a mere functionary who preserves order and lends ceremonial dignity. Moreover, the principles that the rules of procedure do not require sacrifice of fundamental justice and that cases should be decided on the merits support judicial intervention to ensure that a pro se litigant gets at least a fair chance to present his or her case.

A judge is required to set an example of courtesy toward self-represented litigants for others to follow, to ensure that court staff receive the training necessary to provide patient, helpful service to self-represented litigants, and to prevent attorneys from taking advantage of self-represented litigants. Thus, a judge should not use a tone or manner that is intimidating or disdainful or make negative comments regarding the wisdom of self-representation. Moreover, a judge should address self- represented litigants with titles comparable to those used for counsel and avoid over-familiar conduct toward attorneys.

No reasonable question is raised about a judge’s impartiality if the judge avoids legal jargon, abbreviations, acronyms, shorthand, and slang that would con- fuse a self-represented litigant. Moreover, giving a rationale for a decision is inherently part of the duty of a judge, and doing so in a case involving a self-represented litigant could not reasonably be considered evidence of partiality even if explaining the basis for a ruling incidentally assists a self-represented litigant.

A judge should take pains to protect self-represented litigants against the consequences of technical errors. Moreover, liberal construction of pleadings filed by self-represented litigants and freely allowing amendment of pleadings are not special accommodations for self-represented litigants but simply an application of the rule for all cases under the modern notice-pleading practice that is even more justified in cases involving self-represented litigants. The liberal construction rule requires that a judge give effect to the substance, rather than the label, of a self-represented litigant’s papers, recognizing any obvious possible cause of action or defense suggested by the facts alleged even if the litigant does not expressly invoke that theory. However, the liberal construction rule does not relieve a self-represented litigant of the responsibility of making sufficient factual allegations to give the other side fair notice or permit a judge to apply a more sympathetic view of the substantive law or relieve a self-represented litigant of the usual burden or standard of proof.

It does not raise reasonable questions about a judge’s impartiality for the judge to explain to all parties how the proceedings will be conducted, for example, to explain the process, the elements, that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered. In a logical extension of the majority rule that a self-represented litigant should be instructed how to respond to a motion for summary judgment, a trial judge should instruct a self-represented litigant in the proper procedures for any action he or she is obviously attempting to accomplish. Facilitating an unrepresented litigant’s presentation of his or her own case, as the litigant has conceived it, is the provision of legal information, not legal advice.

In all cases, including those with self-represented litigants, a judge has the discretion to ask questions of witnesses to clarify testimony and develop facts. A judge’s clarifying questions do not unfairly disadvantage the represented party by altering the evidence but simply eliminate the unfair advantage a represented party might gain if a self-represented party is unable to present the facts in a way the judge or jury can comprehend. A judge may also use questions to fill a gap in the evidence that is likely to result in a decision other than on the merits. Moreover, a judge may create an informal atmosphere for the acceptance of evidence and testimony, relaxing the formal rules of procedure and evidence for cases involving self-represented litigants. A judge should ensure that a settlement presented for entry as a court order is not unduly one-sided and is understood by all litigants.

A judge’s ability to make reasonable accommodations for pro se litigants does not oblige a judge to overlook a self-represented litigant’s violation of a clear order, to repeatedly excuse a self-represented litigant’s failure to comply with deadlines, or to allow a self-represented litigant to use the process to harass the other side.

To suggest techniques judges may effectively and ethically use to fairly handle litigation involving self-represented parties, included are Proposed Best Practices for Cases Involving Self-Represented Litigants for consideration and adaptation by jurisdictions as guidance for their judges.

Read the entire report here:

Judicial Ethics & Self-Represented Litigants.pdf


July 2020
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