By Ed Cohen
Making sure that litigants without lawyers feel they are getting a fair hearing – even the ones who deny the right of the court to judge them – has never been easy for judges. But our informal poll of NJC judges found that the overwhelming majority think they can handle it.
Our Question of the Month* emailed to NJC alumni earlier this month asked, “How would you rate your level of comfort in dealing with self-represented litigants?”
Of the 567 judges who responded, almost 9 in 10 (86 percent) said they were either “entirely comfortable” (39 percent) or “mostly comfortable” (47 percent). Roughly 12 percent said they were “not very comfortable.” Only about 2 ½ percent admitted to being “uncomfortable.”
Judging by the comments left by 175 of the voters, it appears that practice makes for comfort when it comes to dealing with self-represented, also known as pro se, litigants.
“I am used to them. They are on most all of my dockets,” wrote one “entirely comfortable” voter, Morgan County (Alabama) District Judge Brent Craig.
“Ninety percent of those appearing in front of me are pro se,” reported the equally comfortable Maria Pastoor, a child support magistrate in West St. Paul, Minnesota.
But as one anonymous judge wrote of dealing with lawyerless litigants, “It’s like going to the dentist for a root canal. Not really fun.”
Matt Bertani, an associate judge in the Circuit Court for Will County, Illinois, said one can get comfortable dealing with self-represented litigants “if you just figure out that they want and deserve to be heard, exercise patience to allow that. Provide them with cases for common issues that might explain why you can or cannot do that which they desire.”
Judges said one of the challenges of dealing with self-represented litigants is wanting to help the person who has put himself or herself at a disadvantage to an experienced prosecutor or other opposing party who has professional legal representation. But they really can’t help.
“It is often hard to decide how much to intervene, whether to help the proceedings along or to assist the person or to prevent (them from) doing something that will hurt the party’s case,” an anonymous judge wrote.
“It always adds another layer of concern for the court,” wrote Judge Robert Wyatt of the 144th Judicial District Court in Calcasieu Parish, Louisiana. “I naturally tend to be cautious that opposing counsel doesn’t take advantage of the ‘situation’ (thankfully, that has rarely occurred in my court) and that these litigants don’t sabotage their own cases.”
Some judges mentioned that their court provides information to self-represented litigants to help them make an informed decision about going it alone.
Other judges said they had received education specifically to help them deal ethically with self-represented litigants.
“I was fortunate to be able to attend the NJC SRL weeklong course in October of 2015, right after I took the bench,” wrote District Judge Daniel A. Bryant of Division III of the 12th Judicial District for New Mexico’s Lincoln and Otero counties. “That training has proven to be very beneficial.” (The NJC course is being offered this year in Santa Fe, New Mexico, Oct. 23-26).
Judges mentioned the difficulty of dealing with people who have mental or behavioral health issues. Another category of concern was so-called “sovereign citizens” who believe that courts have no authority over them.
“Most are normal people that just found something (usually on the internet) that could be advantageous to them and are disappointed when it doesn’t work as they hoped,” an anonymous judge wrote. “But some become angry or aggressive, which can put bailiffs and other litigants in danger. We rarely know until well into an evidentiary hearing which kind of person we have.”
Senior Judge Kitty Schild, the first woman elected a judge in El Paso County, Texas, said that nowadays, as a visiting judge, she is frequently assigned to cases involving pro se litigants.
“I’ve learned to treat them like I do all persons in my courtroom—with respect.” She said she is patient but will admonish them if they begin interrupting or talking over her or anybody else in the courtroom. She said she explains that neither she nor her staff can provide any legal advice or assistance.
“These practices usually work,” she says. “I do have to admit that I filed criminal charges against the pro se who threatened to blow my head off with his shotgun.”
* Each month the College emails an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad. The results, summarized in the NJC’s Judicial Edge Today, are not intended to be characterized as conclusive research findings. The NJC is a nonpartisan, nonpolitical organization and these monthly polls are designed to engage our alumni in thought-provoking dialogue.
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