Balls, strikes, and self-represented litigants

In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.”  California Judges Association Advisory Opinion 76 (2018).  The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches.  Is this an accurate statement of the role of the judge?  Not necessarily. . . .  Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits.  Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant.  One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible.  The self-represented litigant often is struggling with legal terms, time limits, and court procedures.  The judge must decide what reasonable accommodation is proper and when it is unreasonable.  Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney.  Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system.  Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations.  For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including 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 addition, the opinion advised:

  • A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
  • A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
  • A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
  • During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
  • A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
  • When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
  • If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for?  And why are you asking for this amount?”
  • In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

  • May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
  • Should permit a support person to accompany a self-represented moving party to counsel table, and
  • Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states:  “[W]hen a litigant is self-represented, a judge has the dis­cretion to take reasonable steps, appropriate under the circumstances and con­sistent with the law and the canons to enable the litigant to be heard.”  Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states:  “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.  Click here for more information.

Court-annexed self-help clinic

In an advisory opinion, the Ohio Board of Professional Conduct approved a court’s proposal to establish a self-help center where court-appointed lawyers would provide short-term legal assistance to persons of limited means who otherwise would be unrepresented.  Ohio Advisory Opinion 2017-7.  The lawyers would not represent the litigants before the court but would provide general legal assistance and information, explaining court procedures, addressing service of process issues, ensuring that litigants file the correct court forms, and making referrals to sources or persons for additional information or assistance.

Comment 4 to Rule 2.2 of the Ohio code of judicial conduct provides that a judge may make reasonable accommodations to ensure self-represented litigants the opportunity to have their matters fairly heard.  Ohio Advisory Opinion 2017-7 explains that a court-annexed legal services program “is a permissible method” of ensuring the right of self-represented litigants to be heard and improving access to justice.  “A self-help clinic in a court,” it states, “can facilitate the administration of justice by reducing the necessity for a judge to provide additional accommodations for a self-represented litigant during a hearing, assisting in maintaining the appearance of impartiality, and increasing the opportunity for the matter to be heard on its merits rather than dismissed on technicalities.”

However, “[b]ecause the self-help clinic inevitably will be viewed by the public as a court-provided service,” the opinion states, “it must operate and appear, to the extent possible, as an independent function of the court.”   Thus, the Board advises that the court’s oversight and involvement “should be de minimis,” primarily funding and appointment of the lawyers, “not the day-to-day operation.”  Further, the opinion suggests, the physical location of the self-help clinic should reinforce the independence of the court and appointing judges.

The opinion also directs the court to take steps “to avoid communications between the appointed lawyers and court staff and judges about case-related matters that could be interpreted as an ex parte communication or imply that judges are not impartial.”  The opinion does permit occasional meetings between judicial officers, court staff, and appointed lawyers to discuss general administrative issues related to the clinic’s operation.  The opinion notes that the court should appoint the lawyers “impartially on a merit basis, and their compensation should not exceed the fair market value for similar services.”

Finally, the Board emphasizes that a “court that establishes a self-help clinic must be aware of the ethical obligations of the appointed lawyers in the clinic.  Most importantly, a limited client-lawyer relationship is formed when a lawyer participates and assists litigants in a self-help clinic, requiring the lawyer to adhere to his or her ethical obligations under the Rules of Professional Conduct.”