Module A: Judges, Ethics and the Self-Represented Litigant The Law Today

Transcription

1 Module A: Judges, Ethics and the Self-Represented Litigant The Law Today I. Introduction Description of the Module In this module, participants will review the law governing the judicial role in managing cases involving self represented litigants (SRLs). Participants will examine both the challenges and the opportunities in working with SRLs and the discretion they have to take steps to ensure access to justice. Learning Objectives At the conclusion of this module, participants will be able to: Articulate reasons for the courtroom goal of ensuring access to justice in a neutral court. Identify issues faced by SRLs in the courtroom. Discuss the implications of the 2012 CCJ Resolution 2 In Support of Expanding Rule 2.2 of the ABA Model Code of Judicial Conduct to Reference Cases Involving Self-Representing Litigants. Identify general approaches that may be taken by judges in helping to ensure access to justice for SRLs in a neutral court. II. Slides and Presenter Notes The following slides are in a separate PPT, and may be edited as desired. This is module one of a series of modules available on the Center on Court Access to Justice for All website ( The Public Welfare Foundation supported development of these judicial education modules. The original curriculum which includes significant additional material is available at 8/8/2013 Page 1

2 These problems are all too well recognized, and can cause significant delay in many courts. The presenter may want to add statistics and examples from the state. The presenter may also want to give examples of situations in which he or she has not known how to proceed. These examples were taken from the video presentations available on request from the Center on Court Access to Justice for All. It is interesting that in research on public trust and confidence, litigants are often found to be more focused on the fairness of the process and whether the parties were heard, while attorneys are often more focused on the outcome and the efficiency of the process. In the past, many judges have worried that engagement would be seen as non-neutral. But now research, and authority show how judges can be both engaged and neutral. This module gives the authority for this proposition and suggests some of the appropriate techniques for doing so. Additional modules go into more detail. It's important to note that these techniques generally work even when one party is represented and the other is not- often the most difficult situation for many judges. 8/8/2013 Page 2

3 The goal of every judge is to make the best decision possible based on the evidence in the case. The judge s ability to decide is limited to the evidence the parties present to the court; every judge is concerned that the case will go to decision on incomplete evidence. The SRL typically does not fully understand what facts or law the bench needs; this is especially true in some of the more complicated areas of the law. The judge is torn between ensuring the SRL presents the evidence, and the feeling that by doing so the judge is helping one side or the other. The judge is also typically concerned that becoming too active in the process will give one side or the other the sense that the bench is helping the opposition; but if the judge does not become involved there will be insufficient evidence to make a good decision on the merits. The judge is also concerned that by helping one side or the other, an unjust result will occur because the other side will be disadvantaged and will not get its story out. Conversely, if the bench does not help out in some respects then insufficient evidence will be gathered and an unjust result will follow. If the judge is perceived as helping one side or the other then a risk arises that the litigant will not feel that the hearing was fair and that will necessarily impact the compliance with the orders and ultimately will undermine the entire justice system. It is possible for judges to conduct their cases to both ensure that evidence gets before them, and that the process is neutral. That is what this module is all about. A significant issue to SRLs (and all litigants) is the appearance of fairness. This entire curriculum is designed to assure judges that they can still be an active part of the hearing without becoming or appearing to become biased toward one side or the other. At base, however, each judge must develop his or her own style and comfort level with how the process is conducted. If any of the discussions or techniques discussed make you uncomfortable, then do not use it. The Conference of Chief Justices has specifically and unanimously endorsed this goal and this approach. The Conference, together with the Conference of State Court Administrators, passed a resolution encouraging states to adopt a more expansive version of the ABA s Rule 2.2 of the Model Code of Judicial Conduct. This version specifically acknowledges SRLs in the Black Letter rule rather than in the Comments section of the original version. Note that this language treats the SRL issue as part of the broader access issue, and not as a special problem. 8/8/2013 Page 3

4 This is a very important additional part of the resolution. As discussed below, and building on the actions of some states that had already moved, the Chiefs encourage states to develop comments listing specific access-oriented action that judges can take. This may be viewed as a response to requests for greater clarity regarding appropriate actions. The following slides list some of the actions that some states have described in their comments. Judges in other states that have not yet developed such lists may find these items helpful. These lists can be used in support of discussions about what items might be included, given their own local or state law. These are all simple and uncontroversial today. None raise any implications of non-neutrality, and all help ensure that facts and law are fully before the decision-maker. Presenters might want to give examples of some of these. These actions are similarly neutral, and not inconsistent with governing rules. Judges, for example, routinely change the order and structure of hearings with counsel for convenience and efficiency. They often explain to lawyers what they are doing. 8/8/2013 Page 4

5 Some see Turner as a transformative case. For the first time, Turner suggests that there may well be circumstances in which a judge is constitutionally required to probe and ask questions. In Turner, a child support civil contempt defendant was facing incarceration without counsel. The Supreme Court was asked to declare that there was a federal constitutional right to a lawyer in such circumstances, and refused to do so, but only because of the availability of other procedures that would sufficiently protect fairness and accuracy. Amongst those was the judge asking questions in response to information provided by the litigant in a form. Implicit in the ruling was the possibility that the failure of the judge to ask such questions might result in a constitutional violation. The touchstone is fairness and accuracy. (See Resources for additional discussion about this case) While the wording is somewhat weaker than the CCJ language, it still provides more than adequate flexibility for judges to act under their discretionary authority to take such steps. At least fourteen states (Arizona, Arkansas, Colorado, Connecticut, Hawaii, Indiana, Minnesota, Nevada, North Dakota, Oklahoma, Tennessee, Utah, Washington, and Wyoming) have adopted the exact language in comment 4 of Rule 2.2 of the 2007 ABA Model Code of Judicial Conduct (except that Arizona and Nevada use the term selfrepresented rather than pro se.) This is an important distinction. All too often it is assumed that the decisions mean that the judge must ignore the selfrepresented status of the litigant this is not the case. The case law is consistent with a broad exercise of discretion but the judge in exercising his or her discretion cannot ignore or break the governing rules, law and procedure but can use good faith neutral interventions to make sure the civil case is heard. The question now becomes, in any given set of circumstances, how shall we exercise our discretion to take reasonable steps so that all litigants have the opportunity to have their matters fairly adjudicated? Where is the line to be drawn between providing an opportunity to be heard and trying the case for an SRL between ensuring that all litigants receive equal access regardless of representation and giving one side or the other an unfair advantage? 8/8/2013 Page 5

6 Presenter should include case law from their own state. Example: California case law affirms that a judge is not required to act as counsel for a self-represented party (see Taylor). In addition to this principle, however, four other principles are set forth in the cases: A preference for resolving cases on their merits [see Harding]; A duty to avoid miscarriage of justice [see Lombardi]; The requirement that verbal instructions given in court and written notices are clear and understandable by a layperson [see Gamet]; and A recognition that the same treatment principle does not prevent trial judges from providing assistance to selfrepresented litigants to enable them to comply with the rules of evidence and procedure [see Monastero] (Note that the CA appellate courts have recently begun to articulate some affirmative duties on the part of judges handling SRL cases.) Studies of public attitudes reveal that people s perceptions of fair treatment are important to them, often more so than the outcome. Lay litigants, unlike lawyers, feel more satisfied with the result of proceedings when they feel they have had opportunities to tell their stories to judges who are listening without bias. This is true even if they lose. Lawyers, in contrast, report being more concerned with outcome than process. So how judges treat litigants has a big impact on the future of the courts. This is not just a good thing to do, it has an impact on the future of our judicial institutions. As judges become more flexible and learn from experimenting in SRL cases, they may find that their management of attorneyled cases also improves. Learning how to convey legal concepts in a way that lay people can understand is also extremely helpful for juries. Moreover, judging is simply more rewarding when SRL cases become an opportunity to make a difference, rather than a source of confusion and difficulty. 8/8/2013 Page 6

7 III. Suggested Activities Activity # A-1 Discuss Perceived Issues with, and Benefits of, SRL Cases (Slide # 4) Purpose of Activity This activity is designed to get judicial participants talking about their experiences with SRLs. It is also intended to bring to the surface some of the more positive feelings that many judges appear reluctant to state publicly. Available Video The video for this activity is Video 1a, Why I Like SRL Cases. It is a two minute collage that shows a variety of positive perspectives on the personal and intellectual satisfactions that come to judges from their handling of selfrepresented cases.(videos are available for judicial education purposes upon request) See slide # 5 for a discussion of key points taken from the video. Setting Up the Activity The activity can be done in small groups, in pairs, or in the group as a whole. In any event, the presenter should raise the issues, perhaps giving some examples from their own experience. It might also be useful for the presenter to note that often the judicial perception of SRL cases is set by one bad experience, or even by a colleagues narration of one bad experience. The vast majority of non-problematical or even rewarding cases do not get the attention. Managing the Activity In any other than a pair version, it might be helpful to keep a list of issues raised. In the small group there are likely to be discussions about alternative views of particular circumstances. Issues That May Arise in the Presentation There is a risk that the session will degenerate into a telling of war stories about the horrors of SRL cases. The moderator may want to direct the session back to specifics, and invite the counter examples and thoughts. Wrapping Up Activity The presenter might ask a wise elder statesperson to reflect on what he or she has heard. Materials Needed For a small group approach, it might be useful to have a single sheet of paper for the discussion leader with the questions on it. It this activity is conducted in the whole group, the questions might be projected on the PowerPoint. Discussion Questions 1. What are the biggest problems you have had handling SRL cases? 2. What are the greatest benefits/pleasures from handling SRL cases? (Record responses electronically or on a flip chart) Activity # A-2: Discuss Impact on Public Trust and Confidence of SRL Cases (Slide # 15) Purpose of Activity The purpose of this activity is to expand judicial perception of the overall impact of how SRL cases are handled upon the overall public perception of the courts. Setting Up the Activity This activity can take place in small groups, or in a larger group. The participants can be asked for their perceptions of the impact of public trust and confidence of how SRL cases are handled. Participants might be 8/8/2013 Page 7

8 asked for any situations that have received significant public attention in their community, for any survey data on public trust and confidence of which they know, or any feedback that they or their staff have received. Managing the Activity It may be useful to record the most significant points. Issues That May Arise in the Presentation It is not obviously clear to all that there is a strong relationship. It may be useful to point out the high number of people who go to court, the number of their family and friends, and the extent of their voting participation. To the extent that the public hears unfair media description of the courts, that can be more effectively countered when the public has personal positive experiences that can be appealed to. Wrapping Up Activity It might be useful to sum up with a few generalizations. Materials Needed It might be useful to put on paper for group leaders, or on the Powerpoint, the key questions. Discussion Questions 1. Have you seen media coverage of SRL cases? 2. How many people does your court serve? 3. How can the handling of SRL cases improve public trust and confidence in the courts? (Record key points electronically or on a flip chart) Activity # A-3: Discuss Impact of Model Code on Own Perceptions of Options (Slide # 12) Purpose of Activity The purposes of this activity are to underline the change in the ABA model code recommended by the CCJ/COSCA resolution, to get judges thinking about its implications for their judicial style, and to provide some impetus for possible enactment of changes in their state. Setting Up the Activity This activity can be done in small group, large group, or pairs (for more experienced judges). Participants should be told about the status of the changes in their state, and asked directly if these changes at the state level make (or would make it) easier to be more flexible in their managing of self-represented litigation cases. They should be given/shown Rule 2.6 and Rule 2.2 with the new comment, the current state equivalents, and a portion of the Self-Represented Litigation Network Memo Managing the Activity It may be useful to record the most significant comments and ideas. Issues That May Arise in the Presentation This activity has the risk of making it seem that until the new Rule Comment is in place the old rigidities should stay in place. It should be emphasized that the new Comment is not designed to modify the law, merely to clarify it. (Which is not the same thing as saying that all accept the new view of the old law.) There is a possibility that the language of the changes could be interpreted as supporting the view that SRLs are to receive special treatment. On the contrary, the language is intended to make sure that all receive the same treatment, regardless of representation status. The only appeal to discretion that is sought is in areas in which judges have discretion regardless of representation status. Attention might also be placed upon Chief Justice Gray's alternative proposed language. Wrapping Up Activity It might be useful briefly to discuss the value to moving forward with this or a similar change in the state. Materials Needed 8/8/2013 Page 8

9 The ABA proposed language, the CCJ/COSCA Resolution, current state language, and portions of the SRLN Memo might be distributed. ABA Model Code Language: Rule 2.6: Ensuring the right to be heard (A) A judge shall accord to every person who has a legal interest in a proceeding, or that person s lawyer, the right to be heard according to law. Rule 2.2 Impartiality* and Fairness A judge shall uphold the law and shall decide all cases with impartiality and fairness. New Comment: [4] It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard. CCJ/COSCA Resolution (2012) Portion NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators recommend that states consider adopting Rule 2.2 [of the Model Code of Judicial Conduct] with the inclusion of the following emphasized wording: (A) A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. (B) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard; and BE IT FURTHER RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators suggest states modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants. (For SRLN Memo, see resource listing below) IV. Resources for Module One: Burke, K. and Leben, S. Procedural Fairness: A Key Ingredient in public Satisfaction. A White Paper of the American Judges Association Conference of Chief Justices Resolution 2 In Support of Expanding Rule 2.2 of the ABA Model Code of Judicial Conduct to Reference Cases Involving Self-Representing Litigants (2012). Code-Judicial-Conduct-Self-Representing-Litigants.ashx Engler, R. (June 2008). Ethics in Transition: Unrepresented Litigants and the Changing Judicial Role, Notre Dame Journal of Law, Ethics and Public Policy, Volume 22 Pages /8/2013 Page 9

10 Engler, R. (Winter 2011). The Toughest Nut: Handling Cases Pitting Unrepresented Litigants Against Represented Ones, National Council of Juvenile and Family Court Judges, Volume 62, No. 1. (Abstract Goldschmidt, J. Judicial Ethics and Assistance to Self-Represented Litigants. (2007). Justice System Journal 28, no.3. Gray, C. (2005). Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants. American Judicature Society. Self Represented Litigation Network. Model Code of Judicial Conduct Provisions on Self-Represented Litigation (2013). Self Represented Litigation Network. Handling Cases Involving Self-Represented Litigants A National Bench Guide for Judges (2008). Self Represented Litigation Network. Judicial Curriculum On Access to Justice in the Courtroom for the Self Represented HANDBOOK OF OPTIONAL ACTIVITIES (2008). Self Represented Litigation Network. Judicial Curriculum On Access to Justice in the Courtroom for the Self Represented HANDBOOK OF RESOURCE MATERIALS (Including Possible Handouts) (2008). Turner v. Rogers 131 S.Ct (2011). Zorza, Richard. Turner v. Rogers: Improving Due Process for the Self-Represented. National Center for State Courts, Future Trends in State Courts (2012) /home/Courts-and-the-Community/3-9-Turner-v-Rogers.aspx Zorza, Richard. Turner v. Rogers: The Implications for Access to Justice Strategies. Judicature (2012) Zorza, Richard. A NEW DAY FOR JUDGES AND THE SELF-REPRESENTED Toward Best Practices in Complex Self- Represented Cases. Judges Journal (2012). Zorza, Richard A NEW DAY FOR JUDGES AND THE SELF-REPRESENTED The Implications of Turner v. Rogers. Judges Journal. (2011). 8/8/2013 Page 10