Last year, the Conference of Chief Justices and the Conference of State Court Administrators passed a joint resolution recommending the adoption by state courts of alternative model language for Rule 2.2 of the Model Code of Judicial Conduct specifically referring to self-represented litigants (SRLs). The resolution also recommended the development of comment language specifying actions judges might take to facilitate the ability of SRLs to be fairly heard.
Since the adoption of the joint resolution, several states and the District of Columbia have adopted language specifying measures courts may take, consistent with the Code of Judicial Ethics, to assist SRLs. The language adopted in the District of Columbia is representative: “The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard. Pursuant to Rule 2.2, the judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person; however, in the interest of ensuring fairness and access to justice, judges should make reasonable accommodations that help litigants who are not represented by counsel to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law.”
The specific accommodations authorized include providing information about procedures and evidentiary requirements; asking neutral questions to elicit and clarify information provided by witnesses; relaxing technical rules concerning the form of questions and foundation requirements for evidence; refraining from employing technical language and legal jargon; and explaining rulings.
The Connecticut judiciary should clarify the language of Comment 4 to Connecticut’s Rule 2.2 to specify the extent of discretion judges have in assuring the right of SRLs in our courts to be fairly heard. As currently written, Comment 4 provides only that: “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure self-represented litigants the opportunity to have their matters fairly heard.”
Comment 4 does not make clear the types or extent of accommodations that judges may provide in assuring the right of SRLs to be “fairly heard.” As a consequence, judges who may quite properly wish to act as neutral and objective referees of disputes between parties, even when one of them is proceeding pro se, may feel reluctant to exercise the discretion now explicitly recognized by Comment 4 to Rule 2.2 of the Code of Judicial Conduct without the type of clarification exemplified by the District of Columbia comment quoted above.
In a comprehensive report entitled “Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants,” Cynthia Gray, Director of the Center for Judicial Ethics of the American Judicature Society, has proposed a set of “best practices” for cases involving pro se litigants. For example, at the pre-hearing stage, a judge should explain the process and ground rules for an evidentiary hearing; the elements and the burden of proof; and the kinds of evidence that can be presented and the kinds of evidence that cannot be considered.
At the beginning of the hearing, the judge should explain that he or she may ask questions if necessary to make sure that the necessary facts are presented, and during the hearing the judge should question any witness for clarification when the facts are confused, undeveloped, or misleading. The trial judge should follow the rules of evidence that go to reliability, but use discretion and overrule objections on technical matters, such as establishing a foundation for introducing documents and exhibits, and the form of questions or testimony.
In light of the increasing numbers of self-represented litigants appearing in contested matters in our courts, judges should have the benefit of specific guidelines and examples of how they may exercise their discretion in matters involving unrepresented parties in order that all parties may be fairly heard.