REACHING OUT OR OVERREACHING

[Bob Sciarrone]

REACHING OUT OR OVERREACHING
Judicial Ethics and Self-Represented Litigants

Cynthia Gray

Founded in 1913, the American Judicature Society is an independent, nonprofit
organization supported by a national membership of judges, lawyers, and other
members of the public. Through research, educational programs, and publications,
AJS addresses concerns related to ethics in the courts, judicial selection, the
jury, court administration, judicial independence, and public understanding of the
justice system.

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 selfrepresented
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 confuse
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 selfrepresented
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.