1. Ethical Issues for Judges in Handling Cases with Self Represented Litigants John Greacen, Greacen Associates, LLC Honorable Louise Bayles-Fightmaster Statewide Conference on Self-Represented Litigants Renaissance PARC 55 Hotel San Francisco, California March 16, 2006

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

3. Inherent Conflict?

4. ABA Standards Relating to Trial Courts, Standard 2.23 Conduct of Cases Where Litigants Appear Without Counsel. Conduct of Cases Where Litigants Appear Without Counsel. When litigants undertake to represent themselves, the court should take whatever measures may be reasonable and necessary to insure a fair trial. When litigants undertake to represent themselves, the court should take whatever measures may be reasonable and necessary to insure a fair trial.

5. ABA Joint Commission on Evaluation of the Model Code of Judicial Conduct Proposed Comment 3 to Rule 2.06 To ensure impartiality and fairness to all parties, a judge must be objective and open-minded, and must not show favoritism to anyone. It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard. To ensure impartiality and fairness to all parties, a judge must be objective and open-minded, and must not show favoritism to anyone. It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.

6. The Issue Neutrality is not synonymous with passivity Rather what are “reasonable” accommodations? Or where are the limits to “reasonable” accommodation? There is no reported case finding a judge’s specific accommodations to have gone too far

7. California Appellate Case Law

8. Right of Self Representation A litigant has the right “to appear and conduct his own case.”

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

10. Application of the Duty of Equal Treatment Substantive legal standards Burden of proof Competency of evidence Application of the statute of limitations Application of “hard” procedural bars, such as the time for filing a notice of appeal Rules of evidence and procedure

11. Complementary Principles It is the policy of the courts in California to resolve a dispute on the merits of the case rather than allowing a dismissal on technicality The trial judge has a “duty to see that a miscarriage of justice does not occur through inadvertence.” Treatment equal to that of a represented party requires the court to “make sure that verbal instructions given in court and written notices are clear and understandable by a layperson.”

12. The Death and Rebirth of Pete v. Henderson Pete v. Henderson (1954) – when a judge has discretion in applying procedural rules, s/he is required to take into account a party’s unrepresented status Disapproved in Rappleyea v. Campbell (1994) Resurrected in a different form in Gamet v. Blanchard (2001)

13. Gamet v. Blanchard (2001) “Judges are charged with ascertaining the truth, not just playing the referee.... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits.” “Judges are charged with ascertaining the truth, not just playing the referee.... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits.”

14. The Recurring Theme of California Appellate Case Law

15. Monastero v. Los Angeles Transit Company (1955) Judge’s accommodations of self represented litigants will be affirmed on appeal. Judge required opposing counsel to provide the unrepresented plaintiff with “instructions that ordinarily would be requested in conjunction with matters of this kind” On appeal, the Court of Appeals found it “startling” that appellate counsel would contend that the judge erred in doing so.

16. Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Unrepresented Litigant Dead man’s statute case – “This is not a case where a few suggestions on the part of the trial judge would have solved plaintiff’s difficulty. Had it been such, the trial judge would undoubtedly have followed the customary practice and offered appropriate suggestions.”

17. Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Unrepresented Litigant Court’s refusal to advise defendant whether she can depose a witness who will not be present for a future trial date, after calling her as the court’s witness, continuing the trial so that she can call witnesses, and advising her how to issue subpoenas

18. Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Unrepresented Litigant Court’s failure sua sponte to prevent opposing counsel’s prejudicial misconduct, after meeting each morning with defendant and plaintiff’s counsel to discuss anticipated testimony and any objections, advising defendant on proper procedure for admission, suggesting the possibility of raising an objection, and sua sponte admonishing the jury to disregard statements by witnesses prejudicial to her.

19. Recitation of the Equal Treatment Mantra While Reciting with Apparent Approval the Trial Court’s Extensive Assistance of the Unrepresented Litigant Court’s dismissal for failure to file an amended complaint in accordance with an oral stipulation between the parties, after the court had given the plaintiff two opportunities to file amended complaints following court rulings specifying the deficiencies of previous filings.

20. Allowable Assistance Liberal construction of documents filed Hand written letters that could have been construed as an answer to the complaint Hand written letters that could have been construed as an answer to the complaint Liberal opportunity to amend Assisting the parties to settle the case Granting a continuance sua sponte on behalf of the self represented litigant Explaining how to subpoena witnesses

21. Allowable Assistance Explaining how to question jurors and exercise peremptory challenges and challenges for cause Explaining the legal elements required to obtain relief Explaining how to introduce evidence Explaining how to object to the introduction of evidence

22. Allowable Assistance Explaining the right to cross examine witnesses presented by the opposing party Calling witnesses and asking questions of them Sua sponte admonishing the jury on behalf of a self represented litigant to disregard prejudicial testimony Preparing jury instructions for a self represented litigant or requiring opposing counsel to do so

23. The Other Side of the Coin The trial judge will also be affirmed when s/he refuses to make specific accommodations, such as Refusal to guide a litigant through the intricacies of the dead man’s statute Refusal to tell the litigant whether she has the right to depose a witness Failure to prevent opposing counsel from committing prejudicial misconduct Dismissing a case for failure to prosecute

24. The Other Side of the Coin Allowing inadmissible evidence at the request of the self represented defendant

25. California Judicial Discipline Cases

26. Becoming the Advocate for the Self Represented Party Inquiry concerning Judge D. Ronald Hyde Assisting wife to fill out fee waiver petition for her dissolution petition Intervening with the judge responsible for approving fee waiver petitions Hand carrying the signed petition back to the clerk’s office for entry of the dissolution petition on the docket and issuance of a summons Hand carrying the summons and petition to his bailiff for service on the husband

27. Depriving the Parties of Their Procedural Rights Inquiry concerning Judge Howard R. Boardman In quiet title action, informing parties that he is proceeding “off the record” Without swearing them, asking the parties to “tell him what the case was about.” Reviewing documents presented to him. Taking the case under advisement and asking defendant’s counsel to prepare a statement of decision and judgment.

28. Failing to Respect Self Represented Litigants Rudeness to pro per litigants in criminal cases “Bullying and badgering” pro per criminal defendants Not allowing a self represented litigant to cross-examine a police officer Pressuring self represented litigants to plead guilty and penalizing an unrepresented litigant who insisted on a trial

29. Failing to Respect Self Represented Litigants Demeaning examination of an unrepresented litigant

30. Affirmative Duty to Advise Self Represented Litigant Federal and Alaska cases on Motion for Summary Judgment Recent US Supreme Court Case

31. Limits on “reasonable” accommodation Federal standard – prejudice to the other side Independent investigation, finding and subpoenaing witnesses Taking over the strategic legal decisionmaking in the case – legal advice versus legal information

32. Summary

33. Pat Answers Are Gone The Boundaries Have Not Been Established Affirmative obligations of the trial judge are not clear Outer limits of “reasonable” accommodation have not been drawn

34. It’s Largely Within the Trial Judge’s Discretion Equal treatment does not mean judicial passivity A judge will not be reversed on appeal for accommodating the needs of a self represented litigant to preserve his or her right to be heard A judge may or may not be reversed for refusing a specific accommodation

35. Challenge and Reward of Judging in This Environment The judge’s attitude and values are critical and come to the fore Only the best judges should be trusted with these assignments Judges have an opportunity for genuine job satisfaction

36. Practical Application of These Principles

37. Issues from the Participants