Judicial Management of Cases Involving Self-Represented Litigants

Effective Practice

Effective practices in judicial management of cases involving self-represented litigants consist of alerting litigants to judicial expectations concerning litigants’ preparation for and conduct during in-court proceedings; actively managing those proceedings in a way most likely to provide judges with the relevant information necessary to make informed and just decisions; and encouraging litigants’ consultation with competent legal counsel, even if on an unbundled basis.  Specific strategies and techniques can be categorized as general skills, pre-hearing notification, in-court management, and post-hearing interaction as noted below.

• General Skills – Judges should …

  • be extremely familiar with the major legal issues likely to arise in cases involving self-represented litigants

  • encourage litigants to consult with competent legal counsel, even if only on an unbundled basis.

• Pre-hearing Interaction – Judges should …

  • provide substantive and procedural guidelines for litigants in writing before the hearing, including what parties will have to prove to obtain the relief they are asking for

  • inform litigants about the benefits of settlement and provide contact information for alternative dispute resolution professionals who can assist in settlement negotiations

• In-court Interaction – Judges should …

  • provide substantive and procedural guidelines for litigants orally at the beginning of in-court proceedings, including an explanation of likely judicial engagement and its its consistency with neutrality

  • structure the hearing on the issues that need to be decided and the relevant legal elements

  • (if both parties are self-represented) swear the parties at the beginning of the hearing

  • to the extent appropriate, practical, and legal, relax formal evidentiary requirements to permit parties to introduce all evidence and testimony that they believe are relevant to the court’s decision

  • ask relevant questions of the parties to solicit information relevant to an informed and just decision

  • be alert to imbalances of power between the parties (e.g., cases of domestic violence, limited English proficiency, or disparate levels of education or legal sophistication) that may affect the parties’ ability to present their points of view

  • explain their decisions orally in court, including steps to challenge or appeal the decision or to request modification of the decision in the future, and checking that the parties understand the decision

• Post-hearing Interaction

  • Judges should provide written notice of further hearings

  • Judges should provide written judgments of their decisions, preferably before litigants leave the courthouse after the hearing

  • Judges should make sure that the parties are aware of resources available to them to ensure that the orders are complied with

Issues

1. Do the canons of judicial ethics prohibit judges from taking a more active role in the management of in-court proceedings with self-represented litigants? 

2. What types of training will best prepare judges to manage cases involving self-represented litigants? 

3. What types of court and community resources should judges have available to assist in their management of cases involving self-represented litigants?

Implementation

Beginning in the late 1980s and continuing through the 1990s, courts experienced a growing volume of cases involving self-represented litigants, most of whom could not afford to hire a lawyer.  This influx of litigants without legal training complicated court operations in terms of both logistics and judicial ethics.  The ability of judges and court staff to manage court calendars suffered from repeated instances of litigants who failed to appear for hearings or who requested continuances because they were unprepared to go forward with their case.  Other cases were dismissed or claims denied for procedural or evidentiary reasons, but were later refiled by litigants intent on having their cases decided on what they considered the merits.

At the same time, many judges grew increasingly uneasy with tension between their ethical obligation to provide meaningful access to justice and perceptions that doing so violated traditional notions of neutrality and objectivity.  Thus, the evolution of best practices has two components: a shift in the conceptual understanding of what access to justice really requires from judges and court staff and the identification of specific techniques to help judges better manage these cases.  The practices discussed here focus primarily on these techniques.  They encompass not only specific techniques for pre-hearing, in-court, and post-hearing interaction with self-represented litigants as well as judicial training on the substantive law governing cases in which self-represented litigants appear most often.

The prevailing body of positive law, court decisions, and ethics advisory opinions across the country make it clear that judges do not violate judicial norms of neutrality or impartiality by facilitating the ability of self-represented litigants to present their cases fully, provided that doing so does not prejudice the rights of the opposing party.  Facilitating a meaningful opportunity to be heard, however, requires that judges have a solid grasp of the substantive law – they cannot, for example, request litigants to brief them on the existence and substance of applicable statutes and case law – as well as effective courtroom management skills.  The basic framework for conducting these hearings involves comparatively relaxed procedural and evidentiary requirements coupled with an explicit structure based on the decisions to be made and the legal elements of the claim in which parties can state their arguments and present evidence.  This knowledge and skills are equally important for cases in which both parties are self-represented and in mixed representation cases.  They provide the judge with the opportunity to listen to all of the information that the parties believe are relevant to a fair and just decision, but do not prejudice the party represented by a lawyer to conform to a more informal procedure.

Judicial responsibility for ensuring meaningful access to justice for self-represented litigants can be greatly alleviated if those litigants also have access to accurate sources of legal information and are able to consult with competent legal counsel, even if only on a limited scope (unbundled) basis.  Many courts now provide information and resources to self-represented litigants either, onsite or online, often in collaboration with local Legal Services/Legal Aid agencies, the private bar, and community organizations.  Judges can refer litigants to these sources and encourage their continued development to enhance litigants’ knowledge and skills before in-court proceedings begin.  Judges can also encourage lawyers to provide unbundled legal services by honoring limited scope agreements between lawyers and clients and facilitating the lawyers’ ability to represent those clients effectively and efficiently.

History of Use/Replication

Many of these practices originated in traffic, landlord-tenant, and small claims courts, which traditionally eschewed formal rules of procedure and evidence in part because the law and the facts in these cases were typically uncomplicated and often uncontested.  Over time, these strategies and techniques have been extended and adapted for use in family law and general civil cases, the two areas of law that have experienced the greatest increase in self-represented litigation.  They also draw on lessons from the field of procedural justice, which emphasize the relationship between perceptions of fairness and litigants’ ability to tell their story to a neutral and impartial decision maker who listens respectfully and compassionately.  They are a natural extension of the extensive clarification of the permissible role of clerks in providing information to litigants which has occurred in most states in the last ten years.

Evaluations

Formal evaluation of many of these techniques are currently underway in California and other jurisdictions, but have been not completed as of this draft.  There are anecdotal reports that judges who practice these techniques feel more positive about their role in adjudicative proceedings and more confident in the decisions that they must ultimately render in those cases.  They also report that in-court proceedings are more expeditious and require fewer subsequent proceedings.  Prior research confirms broad public acceptance of, and enthusiasm for, innovations designed to make the courts and legal system more open and accessible.

Contacts

Rebecca Albrecht, Judge, Superior Court of Arizona, Maricopa County at (602) 506-3727, ralbrech@superiorcourt.maricopa.gov

John Greacen, Greacen Associates, LLC, at (505) 289-2164, john@greacen.net

Paula Hannaford-Agor, National Center for State Courts, at (757) 259-1556, phannaford@ncsc.dni.us

Bonnie Hough, California Administrative Office of the Courts, at (415) 8765-7668, bonnie.hough@jud.ca.gov

Richard Zorza, Zorza Associates, at (202) 549-1128, richard@zorza.net

Further Reading and Resources

Rebecca A. Albrecht et al., Judicial Techniques for Cases Involving Self-Represented Litigants, 42 Judges’ J. 16 (Winter 2003).

20 Things Judicial Officers Can Do to Encourage Attorneys to Provide Limited Scope Representation, The Bench [news journal of the Cal. Judges’ Assn.] (Summer 2003).

Paula L. Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape (forthcoming Ct. Rev. 2003).

Richard Zorza, The Self Help Friendly Court: Designed from the Ground Up to Work for People Without Lawyers (2002)

Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 20 Fam. Ct. Rev. 1 (Jan. 2002).

Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1867 (1999).

www.selfhelpsupport.org (website of resources for programs that assist self-represented litigants)

www.lawhelp.org (public access to legal information and referral for the self-represented)