This is guest post from Richard Zorza on his US Judges Journal Article.
As a UK ex-pat, I try to keep a careful eye on legal developments in the UK (thanks mainly to this blog!) I thought you readers might be interested in a bit of an update on how judges over here are responding to the increase in litigants in person (which we call either self-represented litigants, or unrepresented litigants).
The first important fact is that the American Bar Association Model Code of Judicial Conduct was amended in 2007 to add a Comment specifically intended to provide flexibility to judges in these situations. (It should be noted that each state, and indeed the Federal Court system, adopts its own judicial code of conduct, so this new language does not apply in a state unless adopted by the state’s Supreme Court.) The new language (at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2010_mcjc_final.authcheckdam.pdf.) is:
Rule 2.2, Comment 4.
It is not a violation of this Rule [governing impartiality and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
It might be worth pointing out that in the US, as a general matter, judges are kept within somewhat tighter limits, and the fear of reversal or discipline for engaging litigants such as by asking questions to make sure that the facts are out, might be greater here. (Contrast, the Secret Policeman’s Ball summing up, at http://www.imdb.com/title/tt0083043/quotes.)
In any event, arguments against the legality of such interventions have been largely undercut by a recent US Supreme Court decision. The Court, in Turner v. Rogers, http://www.supremecourt.gov/opinions/10pdf/10-10.pdf, while rejecting a claim of a categorical right to counsel for one facing civil contempt incarceration for non payment of child support, nonetheless did make clear that judicial questioning as to underlying key facts, such as current ability to pay, might be constitutionally required. The Court reversed for failure to provide a number of such protections. (For additional analysis, see, http://accesstojustice.net/2011/06/25/turner-and-the-self-represented-a-summary-of-its-very-broad-implications-and-the-begining-of-a-new-jurisprudence/)
Which is all by way of introduction to the fact that I recently published an article in the US Judges Journal on ways that judges can appropriately and neutrally manage cases involving those without lawyers. While the context is different, it may be helpful in the UK too. It can be found at http://www.zorza.net/JJ-Turner.pdf. This article deals with basic techniques, such as framing the case, asking questions, and confirming that litigants have understood what the judge has ordered. A second article, dealing with more complex situations, such as when there is a lawyer on one side, or there is a jury, is planned.
Here is a short extract from the first article:
Beginning the Case
How the case begins sets the tone of the hearing. It can help the judge maintain control and make it easier to intervene later by asking questions. Among the recommended techniques are:
1. Introduce the parties and explain the procedural context of the hearing. Many judges do this when there are lawyers on the case. Here, doing so also saves time, focuses the parties, and reassures anxious litigants that the judge is on top of the case.
2. Make sure the parties understand what is to be decided at the current hearing. This helps the self-represented stay focused; more importantly, it justifies later intervention if a litigant wanders. This may be particularly important if the self-represented litigant’s submissions are somewhat unclear on the matter.8
Example: Today I have to decide if I am going to change Judge Smith’s order for $400-a-week child support. That is all that I am going to decide. Is that what you both thought would be happening?
3. Outline the procedure to be followed at the hearing. Many litigants have little understanding of legal proceedings and are terrified that they will never get the chance to tell their stories. It calms them if the judge is very explicit about the steps that are to be followed. Again, this lays the foundation for later intervention.
Example: I am going to swear you both in. Then I am going to hear from you, the father, first, because you are the one asking for a change. You can tell me why you think I should change the order, and I may ask you some questions. When we are done, I am going to ask you, madam, why you think the amount should not change. I may ask you some questions, too. I will give you each a chance to ask questions of each other and then to tell me anything you think would be helpful to me in making a decision.
4. Indicate the time available for the hearing.
As a general matter, the approaches out- lined in this article will assist in using hearing time efficiently, although some may require an investment of time early in the hearing. If the judge, as part of the initial procedural introduction, makes clear any limits on time available for the hearing, that will make it easier to ensure that time is used most effectively, and will help litigants understand when the judge has to move the case along.
Example: There are a lot of things to decide today, and I should put on the table that we have only one hour for this whole hearing. I know you will understand if, at times, I have to keep us moving to ensure that we get to everything we need to and to hear properly from both of you.
I hope this is helpful.