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December 10, 2003

Your Honor, Please Read This Article on Pro Se Techniques

Filed under: pre-06-2006 — David Giacalone @ 2:31 pm

pointer dude

Judges play a crucial role in the ability of litigants to represent themselves effectively in court.  There is a major article in the newest edition of The ABA Judge’s Journal that looks at the judge’s role and ethical obligations, and offers important, practical suggestions for making the right — which is often the necessity — to appear pro se a meaningful option.  (Judicial Techniques in Cases Involving Self-Represented Litigants, by Rebecca A. Albrecht, John M. Greacen, Bonnie Rose Hough, and Richard Zorza, Vol. 42, 1, Winter 2003).

The Judicial Techniques article aptly notes (emphasis added):

[O]ne issue of particular concern to trial court judges, and about which little has yet been written, stands out: how a judge can deal with self-represented litigants in the courtroom without departing from the judicial role as a neutral, impartial decision maker. Trial judges have no common understanding of the applicable ethical standards, case law, or practical techniques to use to ensure that justice is done in their courtrooms—and to guarantee that they have not violated or bent the rules by “leaning over the bench” to assist a floundering unrepresented party. This article examines the applicable code of ethics and case law and suggests options for trial judges seeking helpful techniques.

The authors state that there are two basic approaches to the judge’s ethical obligations when one or more party is self-represented:

The minority position, taken by the federal courts, Alaska, Connecticut, and Minnesota (as articulated by Minnesota), is that “[a] trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodation so long as there is no prejudice to the adverse party.”

The emotional message that seems embedded in the majority view is that self-representation is a voluntary choice, it is moreover, a foolish choice, and litigants who put themselves in this position “deserve” the consequences of that choice. . . . The emotional message in minority view opinions is that a person’s lack of counsel likely is not voluntary and is instead the result of a lack of means—but that even if voluntary, self-representation is a choice vouchsafed by the Constitution. The court has an obligation to provide as fair a process for the uninformed and unsophisticated citizen as for the one who can afford the most accomplished and aggressive attorney.

The article concludes:

The challenge for the trial judge dealing with unrepresented litigants is to ensure they have a full opportunity to present their cases for resolution on the merits. The duty of impartiality requires the judge to consider all competent evidence in the possession of the unrepresented litigant. We have suggested a number of techniques to help judges accomplish that result. We believe that they are fully acceptable under both the majority and minority views of the judge’s role in these types of proceedings.

The article also reproduces and recommends, a Proposed Minnesota Protocol for Judges in Pro Se Cases, which is the basis for a similar proposal under consideration in Idaho.

If you know a judge who needs a better approach to the self-represented or who would really like to improve the handling of pro se cases, please tell her or him about the Judicial Techniques article.  There is more information in the ethicalEsq? posting More Help for the Self-Represented, and on our Access/Self-Help/Pro Se page  Thanks to Jerry Lawson at eLawyerBlog, for pointing to this article and keeping such a good eye on issues relating to increasing access to the judicial system.

-b&g thanks-

to our e-buddy Tom Mighell at Inter Alia for his hospitality and good wishes. 

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