Ethical Issues for Judges in Ethical Issues for Judges in Handling Cases with Self Handling Cases with Self

Represented LitigantsRepresented LitigantsJohn Greacen, Greacen Associates, LLCJohn Greacen, Greacen Associates, LLC

Honorable Louise Bayles-FightmasterHonorable Louise Bayles-FightmasterStatewide Conference on Statewide Conference on Self-Represented LitigantsSelf-Represented Litigants

Renaissance PARC 55 HotelRenaissance PARC 55 HotelSan Francisco, CaliforniaSan Francisco, California

March 16, 2006March 16, 2006

The Ethical ContextThe Ethical Context

ABA Model Code of Judicial ConductABA Model Code of Judicial ConductCanon 3B(7) requires a judge to “Canon 3B(7) requires a judge to “accord accord to every person who has a legal to every person who has a legal interest in a proceeding . . . the right interest in a proceeding . . . the right to be heard according to lawto be heard according to law.” .” Canon 2A requires the judge to “Canon 2A requires the judge to “act at all act at all times in a manner that promotes public times in a manner that promotes public confidence in the . . . impartiality of confidence in the . . . impartiality of the judiciarythe judiciary.” .”

Inherent Conflict?Inherent Conflict?

ABA Standards Relating to Trial ABA Standards Relating to Trial Courts, Standard 2.23 Courts, Standard 2.23

Conduct of Cases Where Litigants Conduct of Cases Where Litigants Appear Without Counsel. Appear Without Counsel.

When litigants undertake to represent When litigants undertake to represent themselves, the court should take themselves, the court should take whatever measures may be reasonable whatever measures may be reasonable and necessary to insure a fair trial.and necessary to insure a fair trial.

ABA Joint Commission on ABA Joint Commission on Evaluation of the Model Code of Evaluation of the Model Code of

Judicial Conduct Judicial Conduct

Proposed Comment 3 to Rule 2.06 Proposed Comment 3 to Rule 2.06

To ensure impartiality and fairness to all parties, To ensure impartiality and fairness to all parties, a judge must be objective and open-minded, and a judge must be objective and open-minded, and must not show favoritism to anyone.  must not show favoritism to anyone.  It is not a It is not a violation of this Rule, however, for a judge to violation of this Rule, however, for a judge to make reasonable accommodations to ensure make reasonable accommodations to ensure pro se litigants the opportunity to have their pro se litigants the opportunity to have their matters fairly heard.matters fairly heard.

The IssueThe Issue

Neutrality is not synonymous with passivityNeutrality is not synonymous with passivity

Rather what are “reasonable” Rather what are “reasonable” accommodations?accommodations?

Or where are the limits to “reasonable” Or where are the limits to “reasonable” accommodation?accommodation?

There is no reported case finding a judge’s There is no reported case finding a judge’s specific accommodations to have gone too specific accommodations to have gone too farfar

California Appellate Case California Appellate Case LawLaw

Right of Self RepresentationRight of Self Representation

A litigant has the right “to appear and A litigant has the right “to appear and conduct his own case.”conduct his own case.”

Court’s Duty of Equal TreatmentCourt’s Duty of Equal Treatment

A lay person, who is not indigent, and who A lay person, who is not indigent, and who exercised the privilege of trying his own exercised the privilege of trying his own case must expect and receive the same case must expect and receive the same treatment as if represented by an attorney treatment as if represented by an attorney – no different, no better, and no worse. – no different, no better, and no worse.

Application of the Duty of Equal Application of the Duty of Equal TreatmentTreatment

Substantive legal standardsSubstantive legal standards

Burden of proofBurden of proof

Competency of evidenceCompetency of evidence

Application of the statute of limitationsApplication of the statute of limitations

Application of “hard” procedural bars, such Application of “hard” procedural bars, such as the time for filing a notice of appealas the time for filing a notice of appeal

Rules of evidence and procedureRules of evidence and procedure

Complementary PrinciplesComplementary Principles

It is the policy of the courts in California to It is the policy of the courts in California to resolve a dispute on the merits of the case resolve a dispute on the merits of the case rather than allowing a dismissal on technicalityrather than allowing a dismissal on technicality

The trial judge has a “duty to see that a The trial judge has a “duty to see that a miscarriage of justice does not occur through miscarriage of justice does not occur through inadvertence.” inadvertence.”

Treatment equal to that of a represented party Treatment equal to that of a represented party requires the court to “make sure that verbal requires the court to “make sure that verbal instructions given in court and written notices are instructions given in court and written notices are clear and understandable by a layperson.” clear and understandable by a layperson.”

The Death and Rebirth of The Death and Rebirth of Pete v. Pete v. HendersonHenderson

Pete v. HendersonPete v. Henderson (1954) – when a judge (1954) – when a judge has discretion in applying procedural rules, has discretion in applying procedural rules, s/he is required to take into account a s/he is required to take into account a party’s unrepresented statusparty’s unrepresented status

Disapproved in Disapproved in Rappleyea v. Campbell Rappleyea v. Campbell (1994)(1994)

Resurrected in a different form in Resurrected in a different form in Gamet v. Gamet v. BlanchardBlanchard (2001) (2001)

Gamet v. Blanchard Gamet v. Blanchard (2001)(2001)

“ “Judges are charged with ascertaining the Judges are charged with ascertaining the truth, not just playing the referee. . . . A truth, not just playing the referee. . . . A lawsuit is not a game, where the party with lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the cleverest lawyer prevails regardless of the merits.” the merits.”

The Recurring Theme of The Recurring Theme of California Appellate Case LawCalifornia Appellate Case Law

Monastero v. Los Angeles Transit Monastero v. Los Angeles Transit Company (Company (1955)1955)

Judge’s accommodations of self Judge’s accommodations of self represented litigants will be affirmed on represented litigants will be affirmed on appeal.appeal.Judge required opposing counsel to Judge required opposing counsel to provide the unrepresented plaintiff with provide the unrepresented plaintiff with “instructions that ordinarily would be “instructions that ordinarily would be requested in conjunction with matters of requested in conjunction with matters of this kind”this kind”On appeal, the Court of Appeals found it On appeal, the Court of Appeals found it “startling” that appellate counsel would “startling” that appellate counsel would contend that the judge erred in doing so.contend that the judge erred in doing so.

Recitation of the Equal Treatment Mantra Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Trial Court’s Extensive Assistance of the

Unrepresented LitigantUnrepresented Litigant

Dead man’s statute case – “This is not a Dead man’s statute case – “This is not a case where a few suggestions on the part case where a few suggestions on the part of the trial judge would have solved of the trial judge would have solved plaintiff’s difficulty. Had it been such, the plaintiff’s difficulty. Had it been such, the trial judge would undoubtedly have trial judge would undoubtedly have followed the customary practice and followed the customary practice and offered appropriate suggestions.”offered appropriate suggestions.”

Recitation of the Equal Treatment Mantra Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Trial Court’s Extensive Assistance of the

Unrepresented LitigantUnrepresented Litigant

Court’s refusal to advise defendant Court’s refusal to advise defendant whether she can depose a witness who whether she can depose a witness who will not be present for a future trial date, will not be present for a future trial date, after calling her as the court’s witness, after calling her as the court’s witness, continuing the trial so that she can call continuing the trial so that she can call witnesses, and advising her how to issue witnesses, and advising her how to issue subpoenassubpoenas

Recitation of the Equal Treatment Mantra Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Trial Court’s Extensive Assistance of the

Unrepresented LitigantUnrepresented Litigant

Court’s failure Court’s failure sua spontesua sponte to prevent opposing to prevent opposing counsel’s prejudicial misconduct, after meeting counsel’s prejudicial misconduct, after meeting each morning with defendant and plaintiff’s each morning with defendant and plaintiff’s counsel to discuss anticipated testimony and counsel to discuss anticipated testimony and any objections, advising defendant on proper any objections, advising defendant on proper procedure for admission, suggesting the procedure for admission, suggesting the possibility of raising an objection, and possibility of raising an objection, and sua sua spontesponte admonishing the jury to disregard admonishing the jury to disregard statements by witnesses prejudicial to her.statements by witnesses prejudicial to her.

Recitation of the Equal Treatment Mantra Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Trial Court’s Extensive Assistance of the

Unrepresented LitigantUnrepresented Litigant

Court’s dismissal for failure to file an Court’s dismissal for failure to file an amended complaint in accordance with an amended complaint in accordance with an oral stipulation between the parties, after oral stipulation between the parties, after the court had given the plaintiff two the court had given the plaintiff two opportunities to file amended complaints opportunities to file amended complaints following court rulings specifying the following court rulings specifying the deficiencies of previous filings.deficiencies of previous filings.

Allowable AssistanceAllowable Assistance

Liberal construction of documents filedLiberal construction of documents filed

Hand written letters that could have been Hand written letters that could have been construed as an answer to the complaintconstrued as an answer to the complaint

Liberal opportunity to amendLiberal opportunity to amend

Assisting the parties to settle the caseAssisting the parties to settle the case

Granting a continuance Granting a continuance sua spontesua sponte on on behalf of the self represented litigantbehalf of the self represented litigant

Explaining how to subpoena witnessesExplaining how to subpoena witnesses

Allowable AssistanceAllowable Assistance

Explaining how to question jurors and Explaining how to question jurors and exercise peremptory challenges and exercise peremptory challenges and challenges for causechallenges for cause

Explaining the legal elements required to Explaining the legal elements required to obtain reliefobtain relief

Explaining how to introduce evidenceExplaining how to introduce evidence

Explaining how to object to the Explaining how to object to the introduction of evidenceintroduction of evidence

Allowable AssistanceAllowable Assistance

Explaining the right to cross examine Explaining the right to cross examine witnesses presented by the opposing partywitnesses presented by the opposing party

Calling witnesses and asking questions of Calling witnesses and asking questions of themthem

Sua sponteSua sponte admonishing the jury on behalf admonishing the jury on behalf of a self represented litigant to disregard of a self represented litigant to disregard prejudicial testimonyprejudicial testimony

Preparing jury instructions for a self Preparing jury instructions for a self represented litigant or requiring opposing represented litigant or requiring opposing counsel to do socounsel to do so

The Other Side of the CoinThe Other Side of the Coin

The trial judge will also be affirmed when The trial judge will also be affirmed when s/he refuses to make specific s/he refuses to make specific accommodations, such asaccommodations, such asRefusal to guide a litigant through the Refusal to guide a litigant through the intricacies of the dead man’s statuteintricacies of the dead man’s statuteRefusal to tell the litigant whether she has Refusal to tell the litigant whether she has the right to depose a witnessthe right to depose a witnessFailure to prevent opposing counsel from Failure to prevent opposing counsel from committing prejudicial misconductcommitting prejudicial misconductDismissing a case for failure to prosecuteDismissing a case for failure to prosecute

The Other Side of the CoinThe Other Side of the Coin

Allowing inadmissible evidence at the Allowing inadmissible evidence at the request of the self represented defendantrequest of the self represented defendant

California Judicial Discipline California Judicial Discipline CasesCases

Becoming the Advocate for the Self Becoming the Advocate for the Self Represented PartyRepresented Party

Inquiry concerning Judge D. Ronald HydeInquiry concerning Judge D. Ronald Hyde

Assisting wife to fill out fee waiver petition for her Assisting wife to fill out fee waiver petition for her dissolution petitiondissolution petition

Intervening with the judge responsible for Intervening with the judge responsible for approving fee waiver petitionsapproving fee waiver petitions

Hand carrying the signed petition back to the Hand carrying the signed petition back to the clerk’s office for entry of the dissolution petition clerk’s office for entry of the dissolution petition on the docket and issuance of a summonson the docket and issuance of a summons

Hand carrying the summons and petition to his Hand carrying the summons and petition to his bailiff for service on the husbandbailiff for service on the husband

Depriving the Parties of Their Depriving the Parties of Their Procedural Rights Procedural Rights

Inquiry concerning Judge Howard R. BoardmanInquiry concerning Judge Howard R. Boardman

In quiet title action, informing parties that he is In quiet title action, informing parties that he is proceeding “off the record”proceeding “off the record”

Without swearing them, asking the parties to “tell Without swearing them, asking the parties to “tell him what the case was about.”him what the case was about.”

Reviewing documents presented to him.Reviewing documents presented to him.

Taking the case under advisement and asking Taking the case under advisement and asking defendant’s counsel to prepare a statement of defendant’s counsel to prepare a statement of decision and judgment.decision and judgment.

Failing to Respect Self Failing to Respect Self Represented LitigantsRepresented Litigants

Rudeness to pro per litigants in criminal Rudeness to pro per litigants in criminal casescases

““Bullying and badgering” pro per criminal Bullying and badgering” pro per criminal defendantsdefendants

Not allowing a self represented litigant to Not allowing a self represented litigant to cross-examine a police officercross-examine a police officer

Pressuring self represented litigants to Pressuring self represented litigants to plead guilty and penalizing an plead guilty and penalizing an unrepresented litigant who insisted on a unrepresented litigant who insisted on a trialtrial

Failing to Respect Self Failing to Respect Self Represented LitigantsRepresented Litigants

Demeaning examination of an Demeaning examination of an unrepresented litigantunrepresented litigant

Affirmative Duty to Advise Self Affirmative Duty to Advise Self Represented Litigant Represented Litigant

Federal and Alaska cases on Motion for Federal and Alaska cases on Motion for Summary JudgmentSummary Judgment

Recent US Supreme Court CaseRecent US Supreme Court Case

Limits on “reasonable” Limits on “reasonable” accommodationaccommodation

Federal standard – prejudice to the other Federal standard – prejudice to the other sideside

Independent investigation, finding and Independent investigation, finding and subpoenaing witnessessubpoenaing witnesses

Taking over the strategic legal Taking over the strategic legal decisionmaking in the case – legal advice decisionmaking in the case – legal advice versus legal informationversus legal information

SummarySummary

Pat Answers Are GonePat Answers Are GoneThe Boundaries Have Not Been The Boundaries Have Not Been

EstablishedEstablished

Affirmative obligations of the trial judge are Affirmative obligations of the trial judge are not clearnot clear

Outer limits of “reasonable” accommodation Outer limits of “reasonable” accommodation have not been drawnhave not been drawn

It’s Largely Within the Trial Judge’s It’s Largely Within the Trial Judge’s DiscretionDiscretion

Equal treatment does not mean judicial Equal treatment does not mean judicial passivitypassivity

A judge will not be reversed on appeal for A judge will not be reversed on appeal for accommodating the needs of a self accommodating the needs of a self represented litigant to preserve his or her represented litigant to preserve his or her right to be heardright to be heard

A judge may or may not be reversed for A judge may or may not be reversed for refusing a specific accommodationrefusing a specific accommodation

Challenge and Reward of Judging Challenge and Reward of Judging in This Environmentin This Environment

The judge’s attitude and values are critical The judge’s attitude and values are critical and come to the foreand come to the fore

Only the best judges should be trusted Only the best judges should be trusted with these assignmentswith these assignments

Judges have an opportunity for genuine Judges have an opportunity for genuine job satisfaction job satisfaction

Practical Application of These Practical Application of These PrinciplesPrinciples

Issues from the ParticipantsIssues from the Participants