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How far may - and should, and must - a judge go in helping a pro se litigant have his or her day in court?
If you're a litigator, there's a pretty good chance that there have been times when you've seethed in frustration at a judge's bending over backwards to help a pro se litigant through a case while holding you, the lawyer, to the usual stringent courtroom practice standards.
Try looking at your case from the judge's point of view. "In reality, it is nearly impossible to hold a pro se party to the same standard as an attorney," writes Judge E. Kenneth Wright, Jr., Presiding Judge of the First Municipal District of the Circuit Court of Cook County.
In his article, Perceptions of justice and fairness for pro se litigants, published in the May 2011 issue of ISBA's Bench & Bar newsletter, Wright discusses the tension between providing pro se litigants meaningful access to the courts and whether and to what extent it is permissible for judges to assist them while maintaining their authority, impartiality, and fairness.
The line between helping and representing
The number of pro se litigants is increasing, Wright says, and their needs outstrip the resources available to help them. Legal aid organizations, courthouse help desks, bar associations, telephone hotlines, websites, and other groups assist pro se litigants with general legal information and filling out court forms.
Those entities may also personally counsel the unrepresented litigants. Their ability to represent them in court, however, is limited by a number of factors, including time, personnel, and case acceptance requirements. Valuable though services short of courtroom representation can be, where litigants remain unrepresented, "the buck stops with us [judges]," Wright writes.
"At the most basic level, many [pro se parties] do not understand the difference between a perceived harm and a legally recognized cause of action. The next question is whether they can prove their assertion, or alternatively proffer a proper defense," Wright writes.
Even many attorneys have a hard time satisfying courtroom obligations, Wright says. Where litigants are pro se, those difficulties are compounded. "Their fear as well as lack of knowledge and expertise will make them hesitant and belligerent. We [judges] will attempt to placate them by urging them to seek legal assistance. If they cannot obtain assistance, we will fall back on the black letter law….They will present motions they do not understand and make arguments fed to them by third parties."
How, he wonders, can judges require pro se litigants to be prepared for and attend all status, proveup, and motion dates as well as to meet filing deadlines? "At what point do we cross the line from providing assistance to ensure a fair trial to actually representing a pro se litigant?"
Little formal guidance
Unfortunately, Wright says, trial judges have little formal guidance, either from the opinions of higher courts or from published codes of judicial conduct. Higher courts have affirmed that judges are to hold pro se litigants to the same standards as an attorney. Canon 3 of the Code of Judicial Conduct (SCR 63) requires judges to remain faithful to the law, to be unswayed by partisan interests, public clamor, or fear of criticism, to perform judicial duties without bias or prejudice, and to disqualify themselves where they are acting as lawyers in a proceeding. Judges are also to be efficient, patient, and to ensure that litigants receive a fair trial. None of those standards, however, are of much help when unrepresented litigants appear in real-world courtrooms.
To cope as best they can with difficult situations, anecdotal reports suggest that many trial judges will cut pro se parties more slack in procedural requirements, though when it comes to proving their cases, they will require unrepresented parties to bear the same burdens as those represented as attorneys.
For his part, Wright says "They will be held to the same standards as an attorney." But the result will be that they will go through a proceeding lacking a fundamental understanding of what they are doing and what they need to do in order to present their cases. And, sadly, when they lose, "The majority will leave upset, discouraged, and believing that everyone is in 'cahoots' against them."
Though Wright, like others attempting to grapple with this problem, does not have a solution, he presents a question for judges and lawyers to ponder: "Is perceived access to justice, justice at all?"