To The Editor:
In its October 7, 2013 piece entitled “Judicial Assistance to Self-Represented Litigants,” the Connecticut Law Tribune’s Editorial Board calls on the Connecticut judiciary to clarify the extent of a trial judge’s discretion to relax rules of procedure and evidence as applied to self-represented litigants (SRLs).
In the board’s view, Connecticut judges need some help to understand and apply Rule 2.2 of Connecticut’s Code of Judicial Conduct. Rule 2.2 is entitled “Impartiality and Fairness” and articulates the important, self-evident expectation that a “judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.” Comment 4 goes one step further, assuring judges that “[i]t 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.”
Under the guise of clarifying Comment 4, the Editorial Board is seeking to expand it. The board wants judges to act differently in SRL cases from cases in which attorneys represent the parties. Whenever SRLs appear before a trial court, the board thinks Connecticut judges should be:
• Giving SRLs “information about procedures and evidentiary requirements.”
• Asking “neutral questions . . . to elicit and clarify information provided by witnesses.”
• Questioning “any witness for clarification when the facts are confused, undeveloped, or misleading.”
• “Relaxing technical rules concerning the form of questions and foundation requirements for evidence.”
• “Refraining from employing technical language and legal jargon.”
• Explaining “the process and ground rules for an evidentiary hearing,” including “the elements and burden of proof; and the kinds of evidence that can be presented and kinds of evidence that cannot be considered.”
• Following “the rules of evidence that go to reliability” while using “discretion and overrul[ing] objections on technical matters, such as establishing a foundation for introducing documents and exhibits, and the form of questions or testimony.”
• “Explaining rulings.”
I object to the Editorial Board’s proposals for four reasons. First, the board is calling for the adoption of a double standard for SRL cases, with one standard used for SRLs and a different one used for parties represented by attorneys. When trial judges are lenient and solicitous with one class of litigants, their conduct, demeanor, and tone can be perceived as limiting their own fairness and impartiality on the bench.
Indeed, why is it fair to adopt judicial leniency in only SRL cases? Should there be judicial leniency when attorneys in a case have widely divergent levels of experience or legal abilities? What about judicial leniency toward parties with shallower pockets or smaller litigation budgets? We should not revise, expand, or seek to explain Comment 4 in a manner that undermines Rule 2.2 itself.
Second, the board’s proposals are more ambiguous than our current version of Comment 4. If adopted, the board’s recommendations would lead to less predictable, less uniform practices on the bench. Exactly what does it mean to follow rules of evidence “that go to reliability,” but overrule objections on “technical matters” or improper evidentiary foundations? When we invite judges to explain burdens of proof or the universe of admissible evidence to SRLs, we are walking down an unfair and unpredictable path.
Third, SRL cases are the last place we should adopt more detailed guidance or standards for judges. In the real world, some SRLs are unpredictable, vindictive, and downright threatening towards members of our judiciary. Every judicial grievance I have heard of in recent years has been filed by an SRL. If Comment 4 is expanded as the Board wants, SRLs would only be given greater traction to pursue judicial grievances and appeals, arguing trial judges somehow failed to give them “reasonable
accommodations” to present their cases fairly. Why add gas to the SRL fires already burning in our courts?
Finally, some trial judges engage in a form of SRL leniency that increases when the opposing party is represented by an attorney. When that happens, judicial SRL leniency corrodes and undermines an attorney’s relationship with her client. Clients begin to question their decision to hire and pay for an attorney. They begin to wonder whether they would have been better off without an attorney. They question the judge’s impartiality and may even think their position is disfavored because they are represented by an attorney.
The Editorial Board is encouraging a dangerous trend — a trend that only increases the ranks of SRLs in our courtrooms, further denigrates and marginalizes attorneys, and makes it more difficult to practice law than it already is.•
John D. Tower
The author is a partner in Cramer & Anderson, but the views expressed in this letter do not necessarily reflect the views of the law firm or its other partners.