Handling Cases Involving Self-Represented Litigants - A Benchguide For Judicial Officers - Judicial Council of California Center For Families, Children & The Courts
Handling Cases Involving Self-Represented Litigants - A Benchguide For Judicial Officers - Judicial Council of California Center For Families, Children & The Courts
Involving
Self-Represented
Litigants
A BENCHGUIDE FOR JUDICIAL
OFFICERS
JANUARY 2007
This publication was made possible by a grant from the State Justice
Institute (SJI-05-N-002), with supplemental funding from the
Foundation of the State Bar of California. Points of view expressed
herein do not necessarily represent the official positions or policies of
the Judicial Council of California, the California Administrative Office of
the Courts, the State Justice Institute, or the Foundation of the State
Bar of California.
iii
LIAISONS
JUDICIAL COUNCIL
MR. ANTHONY CAPOZZI
Law Offices of Anthony Capozzi
Fresno, California
iv
Table of Contents
1.
2.
3.
4.
5.
Caseflow Management
6.
7.
Settling Cases
8.
9.
Communication Tools
Acknowledgments
This benchguide was developed under grant #SJI-05-N-002 from the
State Justice Institute. The viewpoints expressed here do not
necessarily represent the official position or policies of the State Justice
Institute.
The California Administrative Office of the Courts gratefully
acknowledges the contributions of the following persons to this
publication.
Ms. Tamara Abrams, Administrative Office of the Courts
Hon. William H. Abraskin, Springfield Housing Court, Springfield,
Massachusetts
Hon. Verna Adams, Superior Court of California, County of Marin
Hon. Rebecca Albrecht (Ret.), Maricopa County Superior Court,
Phoenix, Arizona
Hon. Sue Alexander, Superior Court of California, County of
Alameda
Ms. Karene Alvarado, Administrative Office of the Courts
Ms. Heather Anderson, Administrative Office of the Courts
Hon. William Appel, Superior Court of California, County of Alameda
Ms. Melissa Ardaiz, Administrative Office of the Courts
Hon. Don Ash, Sixteenth Judicial District, Tennessee
Hon. Steve Austin, Superior Court of California, County of Contra
Costa
Mr. Albert Y. Balingit, State of California, Department of Consumer
Affairs
Hon. Raima Ballinger, Superior Court of California, County of
Sonoma
Hon. Louise Bayles-Fightmaster, Superior Court of California,
County of Sonoma
Hon. Lois Bloom, Eastern District of New York
Hon. Aviva Bobb, Superior Court of California, County of Los
Angeles
Hon. Jerilyn Borack, Superior Court of California, County of
Sacramento
Ms. Diane Bras, Superior Court of California, County of Placer
Ms. Julie Bronson, Superior Court of California, County of Los
Angeles
Hon. Bob Broughton, Superior Court of California, County of Contra
Costa
vi
Overview
One of the most significant changes in the court system in recent years
is the growing number of self-represented litigants. Most judges now
spend a significant portion of their judicial career handling cases in
which at least one party is self-represented.
This change offers both opportunities and challenges for trial judges,
highlighting the crucial role that they play in making sure that the selfrepresented obtain access to justice.
Many judges report that they like handling cases with self-represented
litigants because these litigants do not generally engage in legal
gamesmanship. These judges find it easier to get quickly to the crux of
a matter and to craft creative problem-solving orders for litigants.
However, self-represented litigants often have difficulty preparing
complete pleadings, meeting procedural requirements, and articulating
their cases clearly to the judicial officer. These difficulties produce
obvious challenges.
Many innovative solutions exist to help litigants draft adequate
pleadings and prepare for hearings. Yet these solutions cannot
completely substitute for the three years of law school and the
experience that lawyers bring to the courtroom. Until recently, there
has been little guidance for judges on how to meet the challenges of
ensuring access to justice while running an efficient calendar that
includes such cases.
This benchguide is designed to help judicial officers handle the growing
self-represented litigant portion of their caseload. Based on the
experiences of hundreds of judicial officers who have shared their
perspectives, ideas, and suggestions, this guide includes tools and
techniques to help judges run their courtrooms effectively, comply with
the law, maintain neutrality, and increase access to justice.
The benchguide starts with a general discussion of the characteristics
and needs of the self-represented and offers guidance on how to
handle cases with self-represented litigants, including a review of the
case law on this issue. It discusses caseflow and calendar management
xi
xii
Introduction
1-1
I.
1-2
II.
1-3
A.
1-3
B.
1-4
C.
1-5
D.
1-6
E.
1-6
F.
Overcrowded Dockets
1-6
G.
1-7
H.
1-7
I.
J.
Conclusion
1-8
1-9
1
Self-Represented Litigants: Who Are They and What
Do They Face When They Come to Court?
Introduction
Many judges have expectations about who self-represented litigants
are, why they do not have lawyers, what they want from the court,
and how they will behave. These expectations play a powerful role in
how the courts treat people who are representing themselves.
While many of these expectations come from experience, some may
result from particularly dramatic or intense cases and may not reflect
the complex reality of the millions who represent themselves in court
each year.
Statistical surveys and court self-help centers have been critical for
understanding this reality and for improving our response to the needs
of such litigants.
This chapter provides background for judges on the issues set out in
this benchguide.
1-1
I.
2.
These reasons for not having a lawyer reflect economic and social
trends and are not likely to change in the near future.
More than 90 percent of the 450,000 people each year who use selfhelp programs in California earn less than $2,000 per month. The
majority are working and raising families. Given the high price of hiring
a lawyer, even individuals with large incomes are likely to find the cost
of counsel represents a substantial burden that can have long-term
impacts on family financial stability.
Through 2012, the largest number of job openings will be in primarily
low-wage occupations, such as retail salespersons, food preparation
and service workers, and cashiers. In fact, 5 of the top 10 occupations
expected to add the most jobs during this period pay a median hourly
wage of less than $10, equivalent to an annual salary of $20,800 for
full-time, year-round work. The result will be more, rather than fewer,
self-represented litigants.
Legal services programs are unable to meet the need for
representation. The State Bar reports that the ratio of poor people to
1
Little systematic data is available for litigants who represent themselves in criminal
court. Anecdotal information suggests that as many as 40 percent of misdemeanor
defendants represent themselves in Californiaoften to enter a plea. This is likely to
vary depending on the availability of public defender services, and many of the
suggestions in this guide will pertain to that group. However, the issues of felony or
even misdemeanor cases where litigants are generally choosing to represent
themselves, rather than have a public defender, are beyond the scope of this
benchguide. While they represent a significant concern for judicial officers, they are a
relatively small proportion of the millions of self-represented litigants. For additional
assistance with these difficult cases, judicial officers are encouraged to review CJER
Benchguide 54: Right to Counsel Issues; materials regarding Pro Per Problems and
Difficult Defendants (May 2004), by Judge Jacqueline A. Conner of the Los Angeles
Superior Court; and the Pro Per Courtroom chapter of Developing Effective
Practices in Criminal Caseflow Management (J. Greacen, 2004), a manual prepared
for the Administrative Office of the Courts.
1-2
1-3
C.
As every judge and attorney knows, to obtain a court order, not only
must the litigant file a motion, but he or shenot the courtis also
responsible for seeing that the papers are properly served on the
opposing party. This often complex set of requirements has been a
major obstacle to self-represented litigants and a major source of
delay for the courts for several reasons.
1.
The litigants may not understand that the court will not
effect, or be responsible for, service.
2.
3.
4.
The litigants may not know that they must have a written
proof of service form, filled out by the person who effected
the service, and that that the written proof must be
presented to the court before most orders can be made.
5.
6.
7.
1-5
D.
Overcrowded Dockets
1-6
Most courts are unable to offer interpreters in civil cases, and there is
no legal right to an interpreter recognized in most civil cases. Thus
limited-English-speaking litigants have neither an attorney nor an
interpreter to help them navigate or understand the court system or
understand and participate in hearings and trials. Family members and
friends who may be enlisted to assist might or might not have
adequate language skills, especially when it comes to legal
terminology, or may have conflicts of interest that make their
translation suspect. Judges find it extremely frustrating to hear a nonEnglish-speaking litigant talk for one minute and have it translated as
no; they find it troubling that they may be making rulings without
having all the relevant information. Similarly, litigants who do not
know what they or the other parties were ordered to do, or why they
were ordered to do it, are likely to fail to comply with the order. They
could then be violating a court order without intending to do so, with
serious consequences.
Ibid.
1-8
Conclusion
Generally, self-represented litigants do not choose to be without
lawyers; they want to play by the rules, but they still face a wide and
complicated variety of barriers to access.
This information should guide the approach of the courts, judges, and
court staff as they seek to make sure that the system as a whole is
accessible to all. The remaining chapters of this benchguide seek to
serve that goal.
1-9
2-1
I.
Substantive Justice
2-2
II.
Procedural Justice
2-2
A.
2-3
B.
Neutrality
2-3
C.
Trustworthiness
2-5
D.
Interpersonal Respect
2-6
E.
2-7
Conclusion
2-8
2
Expanding Access to the Court Without
Compromising Neutrality
Introduction
Some judges instinctively feel that involving themselves actively in a
hearing or trialas is often necessary if the judge is to obtain needed
information from self-represented litigantsmay cause one or more of
the parties to the proceeding to perceive that the judge failed to
maintain judicial neutrality. On the contrary, such active involvement is
not only fully consistent with access to justice, and often required by it,
but can enhance the courts neutrality.4
The Court of Appeal has explicitly recognized the necessity for, and has
approved, such judicial behavior:
We know the litigants, both plaintiffs and defendants, are
unrepresented by counsel in the vast majority of casesas was
true here. We also know this fact influences how these hearings
should be conductedwith the judge necessarily expected to
play a far more active role in developing the facts, before then
making the decision whether or not to issue the requested
permanent protective order. In such a hearing, the judge cannot
rely on the pro per litigants to know each of the procedural
steps, to raise objections, to ask all the relevant questions of
witnesses, and to otherwise protect their due process rights.
Ross v. Figueroa (2006) 139 Cal.App.4th 856; 43 Cal. Rptr. 3d
289.
The concepts in this chapter derive in significant part from those developed in R.
Zorza, The Disconnect Between the Requirements of Judicial Neutrality and Those of
the Appearance of Neutrality, When Parties Appear Pro Se, 23 Georgetown Journal of
Legal Ethics, 423 (2004).
2-1
I.
Substantive Justice
II.
Procedural Justice
Over the last 30 years, research has repeatedly established that when
litigants perceive that a decision-making process is fair, they are more
likely to be satisfied with the outcome.6
Perceptions of the importance of fairness do not appear to be related
to any particular cultural background or other personal characteristic of
the litigant, but are universal.7
The elements of procedural justice that have been established in the
research literature closely mirror broad concepts deeply familiar to and
Attorneys, interestingly, are more concerned with the fairness of the outcomes of
the cases than with the fairness of the process by which the outcomes are attained.
6
C. Thibaut and L. Walker, Procedural Justice: A Psychological Analysis (Hillsdale, NJ:
Lawrence Erlbaum, 1975).
7
T. Tyler, What Is Procedural Justice? Criteria Used by Citizens to Assess the
Fairness of Legal Procedures (1988) 22 Law & Socy Rev. 103.
2-2
For litigants to feel that a process is fair, they must feel that they have
had a voice in the process. They need an opportunity to be heard by
the decision-maker. For litigants to believe that they have had an
opportunity to participate in the decision-making process, two things
must occur:8
1.
There must be an opportunity for input into the decisionmaking process; and,
2.
Neutrality
Cal. Benchguide 54, supra; Connor, Pro Per Problems and Difficult Defendants,
supra; Pro Per Courtroom, supra.
9
T. Tyler, The Psychology of Procedural Justice: A Test of the Group-Value Model
(1990) 57(5) Journal of Personality and Social Psychology 830838.
10
G. S. Leventhal, What Should Be Done with Equity Theory? in Social Exchange:
Advances in Theory and Research (K. J. Gergen, M. S. Greenberg, and R. H. Weiss, eds.,
New York: Plenum, 1980).
2-3
11
The California Code of Judicial Ethics requires, at canon 2, that a judge avoid
impropriety and the appearance of impropriety in all of the judges activities and, at
canon 3, that he or she shall perform the duties of judicial office impartially and
diligently.
2-4
Trustworthiness
12
U.S. cases and decisions are collected and analyzed in Albrecht et al., Judicial
Techniques for Cases Involving Self-Represented Litigants (Winter 2003) 41 Judges
Journal 16; and R. Zorza, The Disconnect Between the Requirements of Judicial
Neutrality and Those of the Appearance of Neutrality When Parties Appear Pro Se:
Causes, Solutions, Recommendations, and Implications (2004) 23 G. J. Legal Ethics
423, esp. notes 17 and 18 at page 430, and text and notes at pages 448452.
California cases are discussed in chapter 3, below.
13
Tyler, Psychology of Procedural Justice.
14
Tyler, What Is Procedural Justice?
2-5
D.
Interpersonal Respect
15
16
2-6
E.
17
2-7
Conclusion
All litigants deserve to have decisions made on the basis of the facts
and the law. The ability of a judge to conduct friendly, businesslike,
and unbiased communication with self-represented litigants to obtain
the best information on which to base high-quality decision making,
and to convey the proper attitude of the court toward them, is an
enormous benefit.
2-8
3-1
3-1
II.
3-3
III.
3-7
IV.
B.
3-11
3-13
3-13
3-16
C.
D.
E.
Conclusion
3-8
3-16
3
California Law Applicable to a Judges
Ethical Duties in Dealing With SelfRepresented Litigants
Introduction
California lawcase law, ethical opinions, and judicial discipline
decisionssupports the concepts outlined in chapter 2. Moreover, it
provides a variety of concrete examples of appropriate behavior and
underlines the breadth of discretion granted a trial judge.
I.
Overviewthe Ethical Rules Support Access and
Neutrality
Judges dealing with self-represented litigants in the courtroom are
subject to two ethical duties that may appear at first glance to conflict.
Canon 3B(7) of Californias Code of Judicial Ethics 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
integrity and impartiality of the judiciary. These canons follow those of
the American Bar Associations Model Code of Judicial Conduct.
Many judges fear that the actions required to ensure a self-represented
litigants right to be heard might be viewed as violating the courts
duty of impartiality, and they feel that the duty of impartiality must
trump the duty to ensure a litigants right to be heard.
However, the American Bar Association Standards Relating to Trial
Courts, standard 2.23, takes a very different view, finding no inherent
3-1
conflict between the two duties; rather, both may be met at the same
time:
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.
Commentary
The duty of the courts to make their procedures fair is not
limited to appointing counsel for eligible persons who request
representation. In many instances, persons who cannot afford
counsel are ineligible for appointed counsel; in other cases,
persons who can afford counsel, or who are eligible to be
provided with counsel, refuse to be represented. . . .
All such situations present great difficulties for the court
because the courts essential role as an impartial arbiter cannot
be performed with the usual confidence that the merits of the
case will be fully disclosed through the litigants presentations.
These difficulties are compounded when, as can often be the
case, the litigants capacity even as a lay participant appears
limited by gross ignorance, inarticulateness, naivete, or mental
disorder. They are especially great when one party is
represented by counsel and the other is not, for intervention by
the court introduces not only ambiguity and potential conflict in
the courts role but also consequent ambiguity in the role of
counsel for the party who is represented. Yet it is ultimately the
judges responsibility to see that the merits of a controversy are
resolved fairly and justly. Fulfilling that responsibility may require
that the court, while remaining neutral in consideration of the
merits, assume more than a merely passive role in assuring that
the merits are adequately presented.
The proper scope of the courts responsibility is necessarily
an expression of careful exercise of judicial discretion and cannot
be fully described by specific formula. . . . Where litigants
represent themselves, the court in the interest of fair
determination of the merits should ask such questions and
suggest the production of such evidence as may be necessary to
supplement or clarify the litigants presentation of the case.
(Italics added.)
3-2
In 2006 the American Bar Association took the first steps to further
clarify this lack of inconsistency by proposing changes in the
commentary to the Model Code of Judicial Conduct itself. The ABA Joint
Commission on Evaluation of the Model Code of Judicial Conduct has
proposed that comment 3 to rule 2.06 (currently canon 2A on
impartiality) be modified as follows:18
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.
(Proposed new text in bold)
That the proposal is not for new language in a rule, but for an
expansion of a comment, emphasizes that this does not represent a
departure or change in underlying law. While California appellate
decisions do not generally deal with the issue in the explicit context of
the judges formal ethical obligations, the general literature on this
topic (on which this chapter has drawn heavily) does do so.19
II.
18
3-3
20
This language was taken originally from a 1932 Arizona Supreme Court decision,
Ackerman v. Southern Arizona Bank & Trust Co. (1932) 39 Ariz. 484 [7 P.2d 944].
Only one subsequent case, Monastero v. Los Angeles Transit Company (1955) 131
Cal.App.2d 156, 280 [P.2d 187], discusses whether a self-represented litigant had
the means to retain counsel. It is fair to say, therefore, that the principle is not
limited to self-represented litigants with means but applies to all self-represented
litigantsindigent as well as wealthy.
21
The California Supreme Court, in Rappleyea v. Campbell, 8 Cal.4th 975, 884, P.2d
126, 35 Cal.Rptr.2d 669 (1994), greatly curtailed the existence of a fifth exception
established in Pete v. Henderson, 124 Cal.App.2d 487, 491, 269 P.2d 78 (1st Dist.
Div. 1, 1954), that when trial judges have discretion in applying procedural rules, the
court is required to take into account a litigants self-represented status in exercising
that discretion. In Rappelyea, Justice Mosk, writing for the majority, stated that this
rule should very rarely, if ever, be followed. We make it clear that mere selfrepresentation is not a ground for exceptionally lenient treatment. Supra, at 985.
3-4
3-5
3-6
2.
3.
Future development of the law will likely focus on the boundaries of the
judges discretionthose circumstances in which a judge must make
adjustments in order to permit a self-represented litigant to be heard
and those circumstances in which a judge is viewed as acting with
3-7
prejudice to the rights of the other party to have its case decided on
the facts and the law.
The current boundaries can be discerned from the caselaw and
disciplinary decisions summarized briefly below.
3-8
3-9
3-10
The Supreme Court of the United States has decided two cases raising the issue of
a federal trial judges affirmative duty to provide information to a self-represented
litigant, imposing such a duty in Castro v. United States (2003) 124 U.S. 786 and
refusing to impose a duty in Pliler v. Ford (2004) 124 U.S. 2441. In Castro the Court
held that a federal district judge must inform a prison inmate when the judge
proposes to recharacterize a Fed. R. Crim. P. 33 motion (which is not cognizable) as
a motion under 28 USC section 2255 (which is cognizable, but would cause any
future section 2255 motion to be subject to the restrictions on second or
3-11
3-12
The Court of Appeal has upheld a trial judges refusing to advise a selfrepresented litigant how to introduce evidence in the face of the dead
mans statute in the following case: Lombardi v. Citizens National
Trust and Savings Bank of Los Angeles, supra, refusing to advise
whether the litigant had a right to depose a witness; Taylor v. Bell
supra and Nelson v. Gaunt, supra failing to prevent opposing counsel
from committing prejudicial misconduct in his arguments to the jury;,
failing to grant a third opportunity to amend a complaint, Harding v.
Collazo, supra.
D.
What Judges Cannot Do: Judicial Actions Deemed
Inconsistent With Judicial Neutrality
In effect acting as counsel for self-represented litigants
A judge is not required to act as counsel for a party conducting an
action in propria persona, Taylor v. Bell (1971) 21 Cal.App.3d 1002,
1009 [98 Cal.Rptr. 855], and is not allowed to do so. Inquiry
Concerning Judge D. Ronald Hyde, No. 166 (Commission on Judicial
Performance 1973).
One count in the commissions removal of Judge Hyde from office
described an incident in which the judge became the advocate for a
party. The judge observed a defendant gesturing to his wife, who was
sitting in the audience, that he was going to slit her throat. The judge
ordered the man, who was in court for arraignment on a misdemeanor
domestic violence case, removed from the courtroom. On the date of
his next court appearance, the judge spoke with the wife, who told him
that she was filing for dissolution of the marriage and wanted to serve
3-13
her husband that day. The judge went with the wife to the clerks
office, assisted her in filling out a fee waiver application, went to the
office of the commissioner responsible for reviewing such applications
and ensured that it got immediate attention, carried the signed fee
waiver order to the clerks office where the dissolution petition was
filed and a summons issued, and took the summons and petition to his
own deputy, who served them on the husband before he was
transported back to the jail. The commission concluded that the
judges behavior had embroiled him in the matter, evidenced a lack
of impartiality, and constituted prejudicial misconduct.
In Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518,
754 P.2d 724 [247 Cal.Rptr. 378], the Supreme Court upheld the
removal from office of a judge, among other reasons, for conducting
his own investigation of an evidentiary matter during a criminal jury
trial involving a hit-and-run accident. The judge directed his bailiff to
contact a local auto dealers parts manager to inquire about a rear light
lens for the type of vehicle driven by the defendant, so that he could
compare the lens with trial evidence. On his lunch break, the judge
sought out the parts manager with the lens and determined that the
lens matched the defendants car. Back in court, the judge interrupted
the defense case and called the parts manager as the courts own
witness. The judge did this with minimal notice to the parties and over
objection from both sides. The defendants resulting conviction was
later set aside by the appellate department of the superior court
because of the judges misconduct. The appellate department, People
v. Handcock, (1983) 145 Cal.App.3d Supp. 25, 193 Cal. Rptr. 397,
held that although a judge may call and examine witnesses (Evid. Code
775), the manner in which Judge Ryan placed his own witness on the
stand (by interrupting the defendants testimony) seriously prejudiced
the defendant.
Wegner v. Commission on Judicial Performance (1981) 29 Cal.3d 615,
175 Cal.Rptr. 420, 630 P.2d 954 involved the same issue. Judge
Wegner, suspecting that one of the parties made false statements in
briefing the case, conducted his own investigation. The Supreme Court
stated, By undertaking a collateral investigation [the judge] abdicated
his responsibility for deciding the parties dispute on pleadings and
evidence properly brought before him. 29 Cal.3d 615, at 632.
Denying rights of self-represented litigants
The Supreme Court and the Commission on Judicial Performance have,
on numerous occasions, disciplined judges or removed them from
3-14
Conclusion
The broad range of discretion granted to California judges in their
handling of cases involving self-represented litigants allows them to
manage their courtroom in a manner that addresses concerns about
procedural as well as substantive justice.
24
3-16
4-1
4-1
II.
4-2
III.
4-3
IV.
A.
4-4
B.
4-4
C.
4-5
D.
4-5
E.
4-5
F.
4-5
Conclusion
4-6
4-6
4
Solutions for Evidentiary Challenges
Introduction
A critical component of judging is managing the receipt of evidence. As
a practical matter, judges find that they often end up asking
evidentiary questions of the parties, establishing the foundational facts
for evidence, explaining what is needed for evidence to be admitted,
and asking questions designed to clarify the weight to be given to the
evidence.
However, judges often feel torn. On the one hand, they feel compelled
to make sure that they hear all that they need to hear to decide the
case fairly, both in terms of the totality of the evidence and the
information about that evidence that lets them decide what weight to
give it. On the other hand, they fear putting their hand on one side of
the scales of justice as well as being possibly inconsistent with the
governing substantive and procedural rules of evidence. California case
law is clear that judges may not dispense with the rules of evidence in
cases involving self-represented litigants. Bonnie P. v. Superior Court
(2005) 134 Cal.App.4th 1249, at 1255.
I.
Admit Evidence Where Appropriate, Fair, and
Consistent With the Law
In these cases, a judge has three core goals:
4-1
II.
1.
2.
3.
2.
3.
25
This chapter frequently refers to appropriate evidence rather than the technical
term admissible evidence, since it is attempting to provide practical guidance that
is consistent with technical requirements and, indeed, to show that commonsense
approaches will lead to results that comply with those requirements. (In some cases,
as discussed below, evidence may well not be technically admissible had there been
formal objection, but is not inappropriate or harmful and can be considered without
that objection.)
If judges focus on the appropriateness of evidence, they will find that they are
not in violation of technical rules governing the overall admission and consideration
of evidence. However, while it may be appropriate to consider evidence that in a
different procedural context might be excludable, nothing in this benchguide
recommends the admission of evidence that would be inadmissible in the procedural
context under discussion.
26
In the relatively rare case of a self-represented litigant trying a case before a jury,
evidence should also be excluded if it is prejudicial, in the sense that it will do more
harm than good to the fact-finding process, because the jury will be prejudiced by it.
If the case is before a judge, the judge is assumed to be able to avoid such
prejudice.
27
California Evidence Code, division 9, Evidence Affected or Excluded by Extrinsic
Policies, e.g., 11001109 (character, habit, and custom); 11151128
(mediation); 1152 (remedial action); 1153 (offer of compromise); 1156
(certain hospital research); 1160 (certain statements of sympathy.)
4-2
5.
Judges need to find a process that meets these goals and reflects the
way we see the legal system as a whole. Creating a special set of rules
for self-represented litigant cases would be counterproductive. In the
end, public trust and confidence in the legal system depends on
decisions in all kinds of cases being made on commonsense grounds
that are understandable by laypeople.
28
Such evidence is subject to exclusion for policy rather than reliability reasons.
Examples include the rules dealing with prior criminal convictions (Evid. Code,
1101) and those with subsequent repairs (Evid. Code, 1152). The failure to
exclude such evidence means that the policy underlying the rule of exclusion is
undercut, but the core truth-finding goal is not. If the rule is that such evidence is
admitted without objection, that represents in part a conclusion that the harm is less
great than if the evidence should be excluded regardless of objection. (If only one
side has an attorney, there is a residual potential unfairness under this model, in that
it allows a judge to permit into evidence in a self-represented litigant case evidence
that would be excluded were competent counsel present, or if the self- represented
litigant objected. This imbalance is generally not present if neither party has
counsel.)
29
When there are lawyers present, the process of challenge, impeachment, and
argument gives the judge the information he or she needs to make this decision.
When there are no lawyers, that information must come from a different process.
4-3
Many forms of narrative testimony contain the foundation for their own
admissibility, even if objected to. Many hearsay narratives, for
example, contain a description of the circumstances from which the
judge can determine that they meet foundational requirements. Some
statements are clearly from their own context or content against
interest,31 or of family history.32 Others are statements of mental or
physical state,33 or are business records.34
Similarly, many documents when offered as part of a narrative will
meet foundational requirements, even if challenged or deemed
challenged.
30
Evid. Code, 353 (A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion); People v. Alexander
(1963) 212 CA 2d 84, 98 (hearsay); Powers v. Board of Public Works (1932) 216 C
546, 552; Witkin, Cal. Evidence (4th ed., vol. 3), (2000) 393, 394 and cases
cited.
31
Evid. Code, 1230.
32
Evid. Code, 13101316.
33
Evid. Code, 12501253.
34
Evid. Code, 12701272.
4-4
C.
The fact that evidence is not objected to does not mean that the judge
has to admit it.
The judge is free to choose to act as if an objection had been made.35
D.
The judge can find out all that needs to be found out both in terms of
the formal admissibility of the evidence and the weight to be given that
evidence if admitted.30
There is nothing nonneutral, or any prohibition in the rules, in the
judges determining whether evidence offered is admissible, or in the
judge exploring what weight to give it.
E.
35
4-5
Conclusion
The rules of evidence therefore provide no barrier to judges using their
discretion to obtaining, considering, and giving appropriate weight to
the evidence they need to hear to decide cases fairly and completely.
Chapter 6 and the appendix to this benchguide provide examples of
specific scripts that may help achieve these goals in particular
situations.
4-6
5-1
I.
5-1
II.
5-3
III.
Calendar Management
5-5
A.
5-5
B.
5-5
C.
5-6
D.
5-7
5-8
E.
IV.
5-11
A.
Courtroom Facilities
5-11
B.
Technology
5-12
Staffing Issues
5-13
V.
A.
5-13
B.
Court Staff
5-14
Judicial Education
5-15
A.
Mentor Judges
5-15
B.
Court-Employed Attorneys
5-16
C.
Continuing Education
5-16
VI.
Conclusion
5-17
5
Caseflow Management
Introduction
Effective caseflow management for cases involving self-represented
litigants requires that judges work proactively as members of a larger
court system. The complexity of self-represented jurisprudence
demands careful attention to the interdependence of the different parts
of court operations. It requires thought about how to best protect the
rights of all litigants regardless of whether they have attorneys.
I.
Caseflow Management Depends on Effective
Systems
The roles of file clerks, data input, records management, information
systems and technology, court operations, supervision, management
and administration, court investigation, mediation, research attorneys,
self-help attorneys, and paralegal staff affect how well a courtroom
operates. For example, calendar management starts for the selfrepresented litigant at the clerks window when papers are first filed.
Litigants who have been treated courteously and helpfully by the court
staff are far less fearful and angry when they arrive for their court
hearings. This holds true for each encounter litigants have with court
staff prior to their hearing, whether with clerks, mediators, or self-help
center attorneys.
The way in which each component of court operations works is also
critical to the effective management of the judges calendar. For
example, decisions about filing, records management, calendaring
systems, information systems, and data collection can have serious
consequences on the daily operation of the courtroom, and input from
5-1
2.
Calendar management;
3.
Docket control;
4.
5.
6.
Staffing;
7.
Continuing education;
8.
9.
10.
Judges should not shy away from participation in regular meetings with
their own court staff and with staff from other court operations. Judges
and staff should meet regularly, become familiar with each others
roles and how they interact, develop an ability to solve problems as
they arise, and strategize to improve efficiency. Staff from different
departments meet in various combinations to address specific needs at
specific times, but the goal is to maintain good lines of communication
within the system as a whole. When meetings within the court system
are run well, they can significantly improve a judges ability to manage
a calendar with self-represented litigants in the most effective way
possible.
It is often extremely helpful to meet regularly with self-help attorneys
and others providing assistance to self-represented litigants to identify
issues that may not be raised in bench-bar and other meetings. It is
5-2
II.
One principal problem for both the court and the self-represented
litigant is the litigants unfamiliarity with the courts procedures for
setting hearings and otherwise moving cases from filing to resolution.
Many litigants assume that the court will schedule all necessary
hearings and inform them of what they need to do at each. In fact,
court rules often require the litigant to take the initiative to move a
case forward.
California courts have found that providing information and education
to self-represented litigants benefits both the public and the courts.
This has been addressed in several ways:
1.
2.
3.
Service of process;
2.
3.
4.
5.
6.
Filing motions;
7.
8.
37
For examples of materials developed by local courts see the AOCs Equal Access
Programs compilation of instructional materials from the courts at
http://www.courtinfo.ca.gov/programs/equalaccess/instmat.htm.
5-4
Courts have found that, even with explicit instructions on the need to
request a court hearing and how to do so, many or even most selfrepresented litigants fail to schedule the hearings needed to complete
their cases. Consequently, many courts have found that it is much
more effective to schedule the hearings themselves. For example, a
status conference or case classification conference in all marriage
dissolution cases is set a certain number of days (usually 90, 120, 150,
or 180) after the filing of the petition. The court provides notice of the
hearing to all parties and, on the date of the hearing, determines what
progress has been made, makes whatever rulings are possible, decides
what further steps will be needed, and schedules those steps with the
parties.38
As part of this process, the court provides detailed instructions to the
parties about the specific tasks they must perform prior to the next
hearing. At the close of every hearing, the court sets the date of the
next hearing, if necessary, and gives the parties a written notice of the
date, time, and purpose of the hearing.
Many courts have also found it effective to assume responsibility for
preparing orders and judgments in cases in which both parties are selfrepresented. In many instances they are prepared in the courtroom by
courtroom clerks, based on the judges directions. In other instances,
orders and judgments are prepared by family law facilitators, self-help
center staff, pro bono lawyers, or community volunteers.
B.
For examples of these materials see the AOCs Equal Access Programs compilation
of family law caseflow management materials from the courts at
http://www.courtinfo.ca.gov/programs/equalaccess/family.htm.
5-5
By setting similar cases together, the court can make efficient use of
staff and community volunteers. For example, in a family law court, if
a judge sets all reviews of supervised visitation on a specific afternoon,
the supervised visitation provider(s) can be available at that time to
help get new parents signed up who had not previously been able to
5-6
accomplish this task. Clustering the cases in this way maximizes the
availability of this particular community provider to both the court and
the litigants.
Self-Represented Litigant Calendars. Many judges have found that
both the court and the litigants benefit from calendars devoted
exclusively to cases that do not involve lawyers. The most important
benefit is the ability to assemble staff and volunteer support for these
calendars. A second major benefit is eliminating the stress of calendars
with both represented and unrepresented cases.
Courts with self-represented litigant calendars differ in their
categorization of cases involving one represented and one
unrepresented litigant. Some judges prefer to treat them together with
cases with both sides unrepresented, finding that the self-represented
litigants in these cases often benefit from the resources assembled for
those calendars and from the general instructions for all selfrepresented litigants at the beginning of the calendar as well as
learning from watching others on the calendar ahead of them. Others
prefer to include them on calendars in which lawyers represent both
sides.
When calendars contain both represented and self-represented cases,
some judges call the self-represented cases first, as their matters often
take less time and attorneys can be working to settle cases. Others call
attorney cases first in an effort to minimize the time spent by lawyers
waiting in the courtroom, and hence the cost of their services to their
clients. Some judges will call cases with model attorneys as a way to
help educate litigants about the court process and appropriate
behaviors.
D.
Minimizing the Number of Appearances in Each Case
Reducing Unnecessary Continuances
The court has a strong interest in holding to the appropriate minimum
the number of court appearances in each case; this is true for cases
involving represented as well as unrepresented litigants. The fewer the
number of hearings, the less time required of judges, courtroom staff,
and clerks office clerical staff in scheduling, pulling files for,
conducting, and preparing minute orders for those hearings.
Self-represented litigants share the same interest: the fewer the
number of hearings, the fewer appointments they need to keep track
5-7
of, the fewer days of work they miss, the fewer child care
arrangements they need to make and pay for, the fewer trips they
must make to the courthouse, and the less anxiety they experience.
One of the strongest incentives for self-represented litigants to reach
agreement on contested issues is the opportunity to resolve the case
and avoid having to come to court again.
Many courts therefore attempt to resolve cases involving selfrepresented litigants on their first day in court. The court staff and
volunteers assist the litigants to settle their cases and to prepare
whatever paperwork is needed to present the matter for resolution by
a judicial officer.
Judges report that court-based self-help assistance to self-represented
litigants saves valuable courtroom time and reduces the number of
continuances because of procedural defects.39 Assistance results in the
litigants and the court having the following:
E.
1.
2.
3.
4.
To make the best use of the judges time on the bench, courts
assemble teams of court staff and volunteers from agencies and
community organizations to assist litigants with reviewing paperwork,
resolving issues, and preparing documents to dispose of cases.
Examples of the sorts of resources brought to bear include the
following:
1.
39
5-8
2.
3.
4.
5.
6.
Volunteer attorneys;
7.
8.
9.
10.
Court interpreter(s);
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
The court uses these resources to assess the cases status; provide
information on needed paperwork; help prepare missing, incomplete,
or incorrect documents; conduct settlement negotiations with the
5-9
5-10
Courtroom Facilities
5-11
B.
Technology
2.
3.
4.
40
See examples of these resources at the AOCs Equal Access Program Web site:
http://www.courtinfo.ca.gov/programs/equalaccess/techres.htm.
5-12
V.
Staffing Issues
2.
3.
4.
5.
6.
7.
5-13
8.
Court Staff
5-14
Mentor Judges
5-15
Court-Employed Attorneys
C.
Continuing Education
5-16
Conclusion
Integrating caseflow management for the self-represented with the
courts overall strategy and approach yields great dividends for the
courts, for the self-represented, for those with lawyers, and for lawyers
themselves, since it helps guarantee that the courts time is used
effectively and that public trust and confidence is maximized.
5-17
6-1
I.
6-1
File Review
6-1
B.
6-2
II.
Check-In Procedure
6-4
III.
6-5
IV.
Roll Calls
6-6
V.
6-8
A.
6-8
B.
6-9
C.
Continuance Required
6-9
VI.
6-10
A.
6-10
B.
6-11
C.
Volunteers
6-12
VII.
6-12
A.
Default Hearings
6-12
B.
6-13
6-14
A.
6-14
B.
6-15
C.
6-18
D.
6-19
E.
6-20
F.
6-21
IX.
X.
6-21
B.
6-24
C.
6-25
D.
XI.
6-26
A.
6-27
B.
6-27
C.
6-28
D.
6-28
E.
6-29
6-30
6-30
F.
G.
H.
6-30
I.
6-30
J.
6-31
K.
6-31
L.
6-32
M.
6-32
Conclusion
6-32
6
Courtroom and Hearing Management
Introduction
The courtroom and hearing are the focus of the whole system. The
ultimate test of the success of all of the insights and techniques in this
benchguide is whether the self-represented litigant in fact obtains
access to justice.
While self-help programs, information, and assistance can be
extremely helpful, in the final analysis it is the quality of the process in
the courtroom itself that most determines the quality of access that the
litigant receives.
I.
File Review
6-1
For example, when it is clear from the pleadings that a case is unlikely
to proceed at the time of the hearing, it might not make sense to
spend time reading the file in detail. Conversely, if the pleadings
appear to be appropriate, and there is a valid proof of service in the
file, reading the file seems potentially more useful. Further, if
responsive papers have been submitted and there appears to be a
good chance of a contested hearing, taking the time for a careful file
review would be clearly advisable. The major benefit of readiness
assessments is to triage cases for judges to identify which ones require
the most preparation, which have outstanding threshold issues that
must be dealt with before any hearing can go forward, and which have
issues of a type that cause particular concern.
B.
41
6-2
3.
4.
5.
6.
7.
Preparing file cover sheets. For the cases that appear ready for
hearing, it is helpful to have certain basic information at hand to avoid
having to go back through the file to find the information. This
information might be put on a form template attached to the front of
the file or put onto the judges copy of the calendar. The following are
examples of basic facts that might be included on file cover sheets:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
II.
Check-In Procedure
6-4
The check-in will ensure that the judge has the most accurate
information about who is present for hearings. For example, if no one
responds to the judge during the roll call, yet someone has checked in
with court staff, a question is raised, and the matter should not be
dropped from the calendar without further inquiry. Conversely, if no
one responds during roll call, and no one has checked in, the case can
be dropped after a reasonable waiting period.
The check-in also allows court staff an opportunity to gather updated
information about such things as service of process on cases where
questions have been flagged, to provide information to litigants about
such matters as mediation reports and recommendations in family law
matters, and to provide an opportunity for exchanging any documents
requiring pretrial disclosure. It allows staff the opportunity to ascertain
whether any of the litigants may be requiring an interpreter. If one is
available, staff can call for him or her.
The check-in time also offers an opportunity for the self-represented
litigant to ask basic questions of the clerk without interrupting the
court. Coming into a courtroom with the judge already present is
intimidating, and this check-in time allows litigants to become more
comfortable with the courtroom and somewhat calmer when it is their
turn to present their case.
The check-in process may actually lead to more extensive intervention
if the court has organized a prehearing assistance program for selfrepresented litigants as described in chapter 5.
6-5
6-6
6-7
As the roll call proceeds, cases tend to organize themselves for the
calendar into the following groupings:
1.
2.
3.
4.
The judge can mark his or her own notes during the roll call to keep
track of the status of each case as the calendar progresses.
V.
Some cases can usually be handled quickly during the roll call.
A.
Judges should consider allowing a reasonable time (from the time the
parties were noticed to appear) before dropping cases from the
calendar. If the litigants have been noticed to appear for a clerks
check-in 15 to 30 minutes before the judge begins the roll call, then it
may be reasonable to drop cases at the end of the roll call. Otherwise
it is best to wait until after some other court business has been
conducted, thereby giving the litigants a short window in which to
appear. Judges should be as flexible with self-represented litigants as
they are with attorneys who are given latitude because they have
matters in other courts or courtrooms that keep them from being
present at the beginning of a calendar or when their cases are called.
Allowances should be made for the fact that self-represented litigants
are generally not regular visitors at the court and often are confused
about where to go and how to find the appointed courtroom. Problems
with signage and lack of awareness of issues like security lines to
which attorneys and court staff have grown accustomed often present
time-consuming barriers for litigants as they navigate their way to the
appointed courtroom.
6-8
Continuance Required
Many judges find it helpful to provide blank forms that litigants may
need such as orders after hearing, income and expense declarations,
and declaration forms so that the litigant can complete those forms
and be heard later in the calendar. Others have handouts on how to
accomplish service or the next steps in the type of proceeding being
heard so that the litigants have the information necessary to make the
next hearing more productive.
2.
3.
Settlement Assistance. Without attorneys in the mix, selfrepresented cases often have no help to resolve a case.
6-10
B.
4.
5.
Volunteers
2.
Many of the cases that a judge would refer to courtroom support staff
will be cases that would otherwise have to be continued if staff were
not available to help. Even with the help of support staff, some of the
cases will have to be continued. When it is clear that a case must be
continued, the best practice is to call the case as soon as possible and
assign a new date rather than make the litigants wait through the
calendar only to be told their case will not be heard.
Default Hearings
It can make sense to put default cases early in the calendar, provided
the designated time for latecomers to arrive has passed. Default cases
tend to move fairly quickly. Further, the litigants tend to be less
anxious, since they are unopposed. By handling default matters first,
the rest of the people in the courtroom are allowed to observe the
judge and the courtroom staff to see how the process works and to
become somewhat familiar with it. It also avoids making the default
6-12
litigants wait through long, contested hearings for their own very short
ones.
It is important to allow parties a reasonable time to appear for
hearings (e.g., 20 to 30 minutes from the time that the parties were
noticed to appear). Therefore, if roll call and triage of cases are
completed before that time, it might be best to call one or two of the
contested matters first. Choosing a case or cases that appear to have
low levels of animosity and few issues to handle, and that will move
quickly, seems wise. The judge can then turn to the default matters
when a reasonable time for the respondents to appear has passed.
B. Organizing Contested Hearings
If there are cases with attorneys representing the parties, they may
benefit from some further efforts to settle their issues. Be sure they
report back to the judge in time for a hearing prior to the end of the
calendar. There may be cases previously referred to courtroom support
staff for assistance that now need a hearing. The remaining cases
would be ready for a contested hearing.
There are various ways to organize contested hearings. The following
are some of the possibilities:
1.
2.
Least Time First. Take the cases that seem likely to take
the least amount of time first so that the litigants can
leave. Of course, it is difficult to predict the amount of time
the hearing will actually take. Taking estimates from
lawyers is realistic; asking self-represented litigants for
their estimates is generally not helpful.
6-13
3.
4.
5.
6.
VIII.
A.
easy to overlook an issue in a given case. Not only might this have a
serious impact on the litigant, but when issues are overlooked, litigants
will simply refile another set of papers to get another hearing, thereby
causing themselves and the court an additional appearance. Keeping a
checklist of issues on the cover of the case file helps avoid this
problem.
It can also be valuable to raise issues that the litigants have not
identifiedfor example, a litigant may file for a change of custody, not
realizing that the divorce is not final. Alerting litigants to the need to
take additional steps and referring them to the self-help center can
help avoid major problems.
B.
3.
C.
5.
6.
D.
It may be difficult for judges and court staff, who are very familiar with
the courtroom setting and court procedures, to appreciate the anxiety
that many litigants experience in a courtroom. The setting is designed
to be formal and austere, to reinforce the courts authority. The
language and procedures are totally foreign to any other setting in
which litigants typically find themselves. Many court matters are of
significant consequence to the participants, with the potential to
change the course of their lives. For litigants, not knowing exactly what
to expect, trying to keep in mind the key points to bring to the judges
attention, trying to anticipate the tactics and statements of the
opposing party, and having fears about the outcome of the hearing
contribute to potentially very high states of anxiety. Even lawyers have
been known to forget basic facts because of high stress levels, so
imagine how much worse it is for a self-represented litigant appearing
in court for the first time on a matter of key importance to his or her
life.
You do get cold feet when you get there [court]. Its like what do I
do? What do I do?
Self-represented litigant
This is particularly true for immigrants and litigants with limited English
proficiency, who not only may not understand English but may not
understand the U.S. legal system or how it operates. They may be
concerned about being deported or arrested.
6-19
I dont ever want to go back to court. That was the scariest thing that I
have ever experienced.
Self-represented litigant after uncontested default divorce hearing
It is possible that a litigant may become too anxious to participate
reasonably in the hearing. If so, a recess should be taken to allow the
person a chance to calm down before further action is taken. Providing
the litigant with an opportunity to go out of the courtroom, have a
glass of water, or otherwise take a break can provide the time
needed for him or her to regain composure. The judge might suggest
that the litigant come back into the courtroom to observe other
hearings before recommencing his or her hearing. Courtroom support
staff, if available, might also be helpful in calming a frightened litigant.
E.
6-20
Lack of written orders creates time loss and frustration for litigants,
judges, and law enforcement. If possible, the litigants should leave the
courtroom with written copies of the courts orders. Leaving the task of
preparing written orders to the self-represented litigants is not realistic
in most cases. Unless there are self-help center attorneys or other
qualified staff available to assist in preparing orders, the chances are
that no orders will be prepared, that the submitted orders will be
incomplete, or that the judge will have to completely rewrite the orders
submittedat a time when the matter is no longer fresh in his or her
mind.
If staff are to prepare orders, it is most effective to have them present
in the courtroom to hear the decision as it is announced, but litigants
can also be referred to a self-help center to have an order after
hearing prepared (or explained). If this is the case, a referral slip with
detailed order after hearing information and a copy of the minute order
will help the self-help center staff. It should be noted that minute
orders need to be more detailed and comprehensive for selfrepresented litigant cases. The frequent lack of formal orders after
hearings makes detailed minute orders critical to the courts ability to
track its own past actions in these cases without requiring a transcript
of the record.
6-21
1.
2.
3.
4.
6-22
5.
6.
7.
8.
6-23
2.
3.
6-24
2.
3.
The Judge Posing the Question. The judge can cut through
legal entanglements by posing a question in legally proper
form.
4.
5.
6-25
C.
The judge should maintain the same tight control over the courtroom
as if two self-represented litigants were present, not allowing either
the self-represented litigant or the lawyer to interrupt each other. This
is important not only to ensure a correct decision on the merits in the
case, but also to reassure those litigants waiting to be heard on other
cases that the court takes their rights seriously, wants to hear their
story, and will not allow the other side to derail this important process.
D.
Announcing the Ruling and Preparing a Written Order or
Judgment
The general principles on ruling from the bench apply. However, the
judge can ask the lawyer to prepare a written order or judgment
embodying the courts ruling and submit it to the self-represented
litigant for review. The judge can explain to the litigant that he or she
should review the draft order for accuracy. If the court is structured to
prepare those orders in the courtroom, the judge should proceed to
generate the order or judgment as if the case involved two selfrepresented litigants, particularly if the lawyers client did not prevail in
the matter.
6-26
miss. Many judges use their voice to emphasize the meaning of the
message and to monitor the reactions of the participants: Are they
paying attention? Are they getting it? Do they have questions? It is
often helpful to build in opportunities for participants to ask questions.
A.
The procedures we follow in court are used to make sure that each
side gets a fair opportunity to be heard. I will give each side the
chance to tell its story. I might ask for more information or details, and
I might check to make sure I understand what is being said. Some of
the things that seem important to you might not be part of what I can
consider in making my decision. I may interrupt either side if I dont
understand the point being made, if I have heard enough on the point,
or if you are going into an area that I cannot consider in making my
decision. Sometimes I might explain what you need to show me about
certain kinds of evidence so that I can consider it and decide how
important it is. The other side may object to some of the things you
say or offer as evidence. I am bound by the legal rules of evidence and
will follow them in ruling on such objections and in deciding what
evidence to consider in making my decisions in the case. In order to
make the process work as well as possible, I might find it necessary to
stop the hearing and recommend that one or both of the parties
consult with other resources such as the self-help center or a lawyer.
First I will listen to what the petitioner wants me to know about this
case, and then I will listen to what the respondent wants me to know. I
will try to give each side enough time and opportunity to tell me their
side of the case, but I must proceed in the order I indicated. Please do
not interrupt while the other party is presenting his or her evidence.
Everything that is said in court is written down by the court reporter,
and in order to ensure that the court record is accurate, only one
person can talk at a time. Wait until the person asking a question
finishes before answering, and the person asking the question should
wait until the person answering the question finishes before asking the
next question.
B.
The statement of the list of elements should be short and clear with no
explanation of legal nuances. Where possible, it is helpful to explain
what evidence can prove the listed elements.
A motion to modify child support must establish a change in the
financial situation of one of the parents or a change in the time that
each parent is responsible for the children. Evidence would include a
pay stub, tax return, and so forth.
Petitioner is requesting an order for protection. An order for protection
will be issued if the petitioner can show that she is the victim of
domestic abuse. Domestic abuse means that she has been subject to
physical harm or that she was reasonably in fear of physical harm as a
result of the conduct or statements of the respondent.
Petitioner is requesting a harassment restraining order. A harassment
restraining order will be issued if the petitioner can show that she is
the victim of harassment. Harassment means that she has been
subject to repeated, intrusive, or unwanted acts, words, or gestures by
the respondent that are intended to adversely affect her safety,
security, or privacy.
6-28
D.
I have read the papers asking for the restraining order. Mr.
Respondent, is there anything you disagree with in the declaration
asking for the restraining order? Often, the respondent will agree or
only disagree about things that are not legally relevant. Thank you,
Mr. Respondent. But what youve told me indicates that there is indeed
a basis for a restraining order, and I will go ahead and grant it.
6-29
E.
Sample Questions to Establish the Foundational
Requirements for Documents and Photographs
What is this? Why do you think this is helpful to me in deciding the
case? How was it obtained? Does it accurately portray what its
supposed to show? When was the photograph taken?
F.
When was this said? What were the circumstances when it was said?
Why do you think this would be helpful to me in deciding the case?
Why do you think I should take it seriously?
G.
6-30
2.
3.
4.
5.
2.
3.
4.
5.
L.
M.
2.
3.
4.
5.
2.
3.
Conclusion
This chapter has described some of the techniques that judges use to
handle cases with self-represented litigants that meet the needs of
both the courts and litigants. This is an area where judges have
tremendous flexibility in developing a personal style that allows them
to communicate their genuine concern to the litigant while allowing all
persons in court to be heard.
6-32
7-1
I.
7-2
II.
7-3
A.
7-4
B.
7-7
C.
7-10
7-11
E.
7-12
F.
7-16
G.
7-17
H.
7-19
D.
III.
A.
7-21
B.
7-22
C.
7-24
IV.
Family Law
7-26
7-26
B.
Landlord/Tenant
7-27
C.
Small Claims
7-28
V.
7-28
A.
Intracourt Communication
7-28
B.
7-29
C.
Evaluation of Programs
7-29
Conclusion
7-29
7
Settling Cases
Introduction
Self-represented litigants frequently welcome assistance in settling
their disputes before the hearing or trial. Without representation by
counsel or assistance from the court, litigants usually do not have a
realistic opportunity for meaningful settlement discussions prior to
their scheduled court date. However, when presented with an offer to
engage in mediation or settlement negotiations, many accept
assistance gratefully and are able to resolve their disputes with the
help of a neutral third party.
There are, however, some special challenges in settlement efforts in
cases involving self-represented litigants. Most important among these
is that these litigants may not come into the settlement process with
enough information about their legal rights and the potential outcome
of their dispute in court to meaningfully negotiate with the other side
and make reasoned decisions about whether and on what terms to
settle. These litigants may also be particularly vulnerable to pressure
to settle, which could leave them feeling that they were denied their
day in court, and feeling dissatisfied with the court system as a
whole. In designing settlement strategies to assist self-represented
litigants, judges and court staff should therefore think carefully about
how to address these challenges.
This chapter describes some of the common settlement assistance
processes and their benefits and challenges for self-represented
litigants and offers suggestions for how courts and judges can facilitate
and encourage settlement discussions in ways that support selfrepresented litigants. In California, different statutes and rules of court
regulate different types of processes and case types. While
recognizing those differences, this chapter focuses on common issues
in cases with self-represented litigants.
7-1
I.
Both litigants and the court can benefit from providing settlement
assistance to self-represented litigants before hearings and trials on
their cases. For litigants, the potential benefits include:
1.
2.
3.
4.
5.
7-2
II.
1.
2.
3.
43
One judicial officer has observed that even where mediation has not resulted in a
resolution and trial has been held, the litigants better understood the process and
more readily accepted the outcome. William O. Scott, Jr., Court Commissioner, Butte
County Superior Court, letter to Judy Garlow, Director, Legal Services Trust Fund,
State Bar of California, Aug. 31, 2005.
44
Evaluation of the Early Mediation Pilot Programs, Administrative Office of the
Courts, 2005, pages xx-xxi and 53-64. This report is available at:
www.courtinfo.ca.gov/reference/documents/empprept.pdf
45
Id. at pages xx-xxii, 41-43. and 70-76.
46
Id. at pages xx and 44-52.
7-3
This section discusses some of the pros and cons of different options a
court might want to consider when designing a settlement assistance
program that will be serving self-represented litigants
A.
Mediation
47
For more comprehensive information about these and other ADR processes, see
the CJER Bench Handbook, Judges Guide to ADR.
48
See generally, Leonard L. Riskin, Understanding Mediators' Orientations,
Strategies, and Techniques: A Grid for the Perplexed (1996) 1 Harv. Negot. L. Rev.
7.
7-4
Litigants who are not aware of their legal rights or norms for
resolving similar disputes may be disadvantaged in
negotiating an agreement; and
ii.
Evaluative Mediation. In evaluative mediation, the
mediator focuses primarily on assessing the issues that may be
important to the dispute, which, in a litigation context, typically
includes the likely outcome of such a dispute in court. At the
extreme, evaluative mediation may include actions intended to
direct the outcomes of the mediation in a manner that the
mediator considers appropriate.
The potential benefits of evaluative mediation with selfrepresented litigants include:
Settlement Conferences49
7-6
Court-Connected Arbitration
Mediation. For the most part, mediation involving selfrepresented litigants will be voluntary. There are certain
exceptions to voluntary mediation in California, however.
There is mandatory mediation of all child custody and
visitation disputes (Family Code 3170). In civil cases, the
Superior Court of Los Angeles County and any other
superior court that chooses to opt into this statutory
program may order mediation in cases that are otherwise
eligible to be ordered to judicial arbitration (i.e. civil cases
7-7
3.
7-8
2.
7-10
D.
For example, many courts offer mediation early in the life of a case
and also offer settlement conferences close to the time of trial.
As noted above, when litigants are referred a settlement process, it is
important that the court help the litigants understand that settlement
process, particularly if participation is mandatory. A very important
7-11
part of this is helping litigants understand that they are not required to
settle their dispute in this process. As noted above, self-represented
litigants may be particularly vulnerable to inappropriate pressure to
settle, so judicial officers or others making referrals should make clear
that in mediation or a settlement conference, the litigants decide
whether and on what terms to settle and in court-annexed arbitration,
the litigants decide whether to accept the arbitrators decision.
E.
Court staff it may cost the court more to use staff as neutrals and
there are likely to be fewer neutrals to select from; however, this
7-12
approach gives the court a high degree of control over the quality of
the neutrals, including over their skills with self-represented
litigants;
50
7-13
Integrity
51
7-14
Ability to Communicate
Being Prepared
The neutral should read the file or other paperwork to become familiar
with the issues at hand. Being informed, prepared, and willing to get to
the issues in a businesslike manner demonstrates respect for the
litigants. In fact, CRC 5.120 (e) requires a review of the intake form
and court file, if available is required for court-connected custody
mediators.
7.
7-15
Each case will have its own specific needs that the neutral must
analyze and understand.
8.
F.
1.
2.
7-16
53
7-17
and mutually waived spousal support; however, the case file reveals a
history of domestic violence against the wife. Many judges might find
this set of facts disturbing enough to prevent them from signing the
judgment. If so, the judge might elect to notice the parties in to voir
dire them on the record or to send them to the self-help center, if
available, for assistance and referral to some community-based
assistance. If the court has a specialized domestic violence calendar
with community support available, the voir dire hearing can be set on
that day.
Note that in those cases in which the judge will not be reviewing the
parties settlement agreement, it becomes doubly important that the
court provide self-represented litigants with information and assistance
to effectively participate in the settlement process, as discussed below.
2.
B.
3.
4.
Because they have little basis for comparison, selfrepresented litigants often have unrealistic expectations of
both the litigation and the settlement process. They may
therefore ask for levels of service from neutrals that cross
the line to representation. They may expect, for example,
that the neutral will advise them which option to choose,
which would impermissibly cross the line over into legal
advice.
The fact that parties are not required to settle their cases in these
processes; and
7-22
2.
3.
4.
7-24
Some courts, particularly those that do not have self-help centers, may
also want to look to the neutral to provide self-represented litigants
with needed legal information. This approach is used for courtconnected custody and visitation mediation and many family law
settlement assistance programs. This usually includes an orientation
regarding the law and providing information to the litigants about their
situation if appropriate as the mediation progresses.
The benefit to this approach is that the self-represented litigant can
more effectively participate in the settlement process by knowing
about reasonable outcomes and can get needed services in one step,
making the whole process easier on the litigant and potentially
preventing an unfair result. However, this approach may be less
desirable than providing a separate source of legal information and
assistance to self-represented litigants.
Relying on neutrals to provide legal information may raise competency
and role-confusion concerns, particularly in the mediation context.
While it is generally permissible for mediators to provide information
that they are qualified by training or license to provide, not all
mediators are attorneys. Non-attorney mediators may not be qualified
to provide the type of legal information that would prepare a selfrepresented litigant to negotiate. A court might try to address this
issue by using only attorney neutrals, but attorney neutrals are often
concerned that, if they provide legal information, it increases the
likelihood that self-represented litigants will become confused about
the neutrals proper role and think that the neutral is representing
them. Thus, if they are required to be the source of legal information,
some attorney neutrals will be reluctant or unwilling to handle cases
involving self-represented litigants. Judges can try to mitigate these
concerns by explaining the role of the neutral to self-represented
litigants and emphasizing that the neutral will not be advising or
representing any party. This may not allay all of the neutrals concerns,
however, and judges will most likely need to weigh the potential
benefits of having legal information provided by the neutral with the
7-25
Family Law
1.
2.
3.
B.
Landlord/Tenant
One court has developed a two-tiered model that clearly recognizes the
need for self-represented litigants to be prepared to participate in the
settlement process.
1.
2.
Small Claims
2.
V.
A.
Intracourt Communication
Conclusion
Settlement assistance processes have become a key part of the
options that courts use to help resolve cases. These processes can be
particularly helpful in self-represented litigant cases, because they are
typically simpler, less formal, and easier for self-represented litigants
to understand and navigate.
However, courts need to be aware of the challenges self-represented
litigants face when the courts are designing and implementing their
settlement programs. It is critical for courts to keep in mind that selfrepresented litigants may not come into the settlement process with
enough information about their legal rights and the potential outcome
of their dispute in court to meaningfully negotiate with the other side
and make reasoned decisions about whether and on what terms to
settle. These litigants may also be particularly vulnerable to pressure
to settle, which could leave them feeling that they were denied their
day in court, and feeling dissatisfied with the court system as a
whole. Courts should structure their settlement programs so that selfrepresented litigants are provided with necessary information about
7-29
both the settlement process and about their legal rights so that they
can effectively participate in settlement processes. Judges, court staff,
and neutrals should also avoid placing pressure on litigants to settle
cases.
7-30
Introduction
I.
II.
III.
IV.
8-1
8-1
8-2
8-3
8-4
Conclusion
8-6
8
Special Due Process Considerations
Introduction
All people are guaranteed due process of law under both the United
States and the California Constitutions.
One of the paramount due process values is noticenotice of charges
or claims, notice of proceedings, notice of filings, and notice of
information that the court will consider in acting on a caseand the
opportunity to act on this notice.
Court procedures have been carefully established to guarantee that
parties to court proceedings receive from the court and from other
litigants the notice to which they are entitled and also that they are
given the time to act on this notice, as appropriate.
This chapter explores the interplay between these and other due
process rights, and the needs of self-represented litigants.
I.
Problems With Self-Represented Litigants Getting
and Giving Notice
Special challenges exist in making sure that self-represented litigants
both receive the notice to which they are entitled and give the notice
to opposing parties to which those parties are entitled. Some of the
factors behind these challenges include the following:
8-1
1.
2.
3.
4.
5.
8-2
2.
3.
3.
8-4
2.
3.
Conclusion
To protect due process rights of self-represented litigants, judges and
court staff must remain alert to the particular enhanced risks that
these litigants face and must implement systematic protections to
minimize these risks. They also need to make use of this same
sensitivity as they obtain information and act on it in individual cases.
8-6
9-1
I.
9-1
II.
9-2
A.
B.
9-4
C.
9-5
D.
9-5
E.
9-6
F.
9-7
9-8
III.
A.
9-8
B.
9-8
C.
Using Repetition
9-9
D.
Using Paraphrasing
9-9
E.
9-9
IV.
V.
Nonverbal Communication
9-10
A.
9-10
B.
9-11
C.
9-11
9-12
A.
9-12
B.
9-14
C.
9-15
D.
9-16
VI.
9-17
A.
9-17
B.
9-17
C.
9-17
VII.
Conclusion
9-18
9-20
9
Communication Tools
Introduction
Communication is the foundation of all our interactions with others. It
influences how we perceive and judge not only other people but also
the facts and circumstances of cases. The court system rests heavily
on the communication skills of its various participants. This chapter
surveys the communications challenges facing judges in cases
involving persons representing themselves. It describes techniques
that judges can use to get the information they need to make
appropriate decisions and to convey those decisions in ways that are
more likely to result in compliance.
I.
Communication Challenges With Self-Represented
Litigants
Under the time pressure and stress of heavy and intense calendars,
judges must determine how they can best perform their fact-finding
and decision-making functions when the involved parties are not
legally trained or familiar with courtroom culture. Judges have to
decide how to make sure that parties who do not have attorneys as
intermediaries nonetheless understand and comply with the courts
orders and rulings. How can a judge make sure that justice is not more
difficult to attain for self-represented litigants than for those with
counsel?
A judges communication skillssomething that everyone can
improvewill help determine success in this endeavor. A judges
communication choices will influence not only the amount and quality
of the information successfully conveyed in the courtroom (both
information given and information received) but also the likelihood of
9-1
compliance with court orders and, ultimately, both the actual and
perceived fairness of the court proceedings.
Good communication also involves being aware of those persons in the
courtroom who are waiting for their cases to be heard. Through
teachable moments the bench officer can draw the audiences
attention to the cases being heard, increasing their comprehension of
the process and the ability of persons in the audience to work within
the process when their own cases are called.
Verbal communication refers to the words used, either written or
spoken. Nonverbal communication is everything communicated except
the words. It includes vocal elementshow something is saidas well
as what is commonly called body language. Listening, of course, is
another basic element of communication, one that usually combines
both verbal and nonverbal communication.
Communication between the judge and self-represented litigants will
necessarily involve the content of actual words spoken or written, how
those words are conveyed, and listening or reading skills. Word
content can be general or specialized (e.g., legalese), formal or
informal, and high- or low-grade-level equivalent, and the context
within which words are conveyed can increase or decrease the
likelihood of their comprehension. Nonverbal communication can be
even more significant than verbal communication, and listening may
be the most used but least taught communication skill.
9-2
allegedclaimed
appellanta person who asks a higher court to reverse (or
change) the findings of a lower court
bears a significant resemblance tois like
in compliance withcomply, follow
the courtthe judge
defendantthe person who is accused or sued
effectuatecause
entitlementhaving rights to particular benefits
evidencewhat is used as proof to establish facts,
including testimony from the parties, testimony from
witnesses, or exhibits (documents or other objects)
exhibitdocuments or other objects produced in court as
evidence (proof)
hearsaythe report of another persons words; a
statement, either oral or written, by a person who is not in
court as a witness
jurisdictionthe right to decide a case, the official power to
make legal decisions and judgments about particular cases
legal elementsthe components or factors that need to be
proved legally
litiganta person involved in a lawsuit
make contact withsee, meet, talk to
moving partythe person who asked the court to make a
decision
9-3
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
B.
9-4
C.
Language Level as a Barrier, a Diagnostic Tool, and a
Solution
Judges should be aware of the level, or grade equivalent of
language, and adapt it so that it is accessible to listeners,
without being condescending. Most commonly used software
programs have measures for assessing the grade level of a
document. Measures such as the Flesch-Kincaid Grade Level
Score, which is included as a tool in Word and WordPerfect,
include the word length (how many letters), sentence length
(how many words), sentences per paragraph, and use of the
passive voice. Using these tools can be very helpful.
D.
9-5
E.
56
S. White and S. Dillow, Key Concepts and Features of the 2003 National
Assessment of Adult Literacy (National Center for Education Statistics, U.S.
Department of Education, 2005); L. Jenkins and I. Kirsch, Adult Literacy in California:
Results of the State Adult Literacy Survey (Educational Testing Service, 1994).
57
A. Bazos and J. Hausmann, Correctional Education as a Crime Control Problem
(UCLA School of Public Policy and Social Research, 2004), p. 28.
58
P. Bentley, Judging for the 21st Century: A Problem-Solving Approach (National
Judicial Institute, Canada, 2005).
9-6
Persons who have limited literacy skills may attempt to cope with
feelings of fear, embarrassment, or inadequacy by behaving in ways
that can appear flippant, dishonest, indifferent, uncooperative,
belligerent, defensive, evasive, indecisive, frustrated, or angry. These
emotional markers of low literacy may appear on the surface to be
markers of a bad attitude.
F.
9-7
e.
5.
It is far easier for people to follow the rules when they know what they
are. For example, courtroom protocol includes wearing appropriate
clothing, standing when the judge enters the courtroom, not
interrupting, and so forth. These ground rules may be available in
written form at different steps in the process such as at the clerks
office, self-help centers, or legal services offices. They can also be
conveyed by a court clerk, self-help center staff, or bailiff. Procedural
examples include how to state objections and how to present different
types of evidence.
B.
9-8
Using Repetition
Using Paraphrasing
59
60
9-9
2.
3.
4.
9-10
There are, of course, major cultural differences over the meaning and
interpretation of nonverbal behaviors. For example, the accepted
length of a pause before answering a question varies greatlysome
cultures consider it disrespectful to answer too quickly (its more
respectful to really consider the question before answering it). These
differences take effort to understand, and while they are not the
specific subject of this benchguide, they indicate the need to be
cautious in cross-cultural situations when interpreting the nonverbal
behavior of persons from various cultures.
B.
C.
V.
2.
3.
4.
A.
Active listening usually involves four steps. First, focus on the speaker
and his or her message. This should involve both being attentive and
receptive and demonstrating that the listener is attentive and
receptiveusing nonverbal behaviors such as eye contact, nods, a
positive tone of voice, and upright posture or a slight forward lean as
well as verbal encouragers such as I see, Mm hmm, Go on.
If the listener has to look down to take notes, he or she should explain
that what you are telling me is important and I am writing it down. I
9-12
2.
2.
b.
c.
3.
a.
b.
61
1.
2.
3.
Ibid.
9-14
C.
4.
5.
6.
7.
8.
9-15
5.
6.
7.
8.
D.
62
1.
2.
3.
Ibid.
9-16
4.
B.
C.
Personal mannerisms;
Fear of appearing ignorant; and
Assuming that listening is passive and effective
communication is the responsibility of the speaker.
Power or status;
Language comprehension and proficiency;
Accent;
Culture or ethnicity;
Economic level or factors;
Gender and sexual orientation;
Education level;
Age;
Physical or mental ability or disability;
Appearance; and
Other differences.
9-17
9.
10.
11.
12.
13.
Listeners should
9-18
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
9-19
2.
3.
4.
5.
6.
Conclusion
Judges who use the techniques in this chapter report that they obtain
more information from litigants on which to base a decision and that
they feel more in control of their courtroom. Research indicates that
good communication results in a higher level of compliance with court
orders.63 Thus these techniques have the potential not only to make
the judicial experience more satisfying but also to improve the quality
of justice.
63
D. Eckberg and M. Podkopacz, Family Court Fairness Study (Fourth Judicial District
of the State of Minnesota, Fourth Judicial District Research Division, 2004).
9-20
10-1
I.
10-1
II.
10-2
A.
B.
C.
D.
10-3
10-4
10-4
10-5
E.
F.
10-5
10-6
H.
10-6
I.
10-7
J.
10-7
G.
III.
IV.
10-9
10-9
A.
B.
Maximize Accountability
10-10
C.
10-10
D.
10-10
E.
Be Conscious of Difference
10-11
F.
10-11
G.
10-12
H.
10-12
10-13
I.
Conclusion
10-14
10
Avoiding Unintended Bias
Introduction
One of the special challenges of dealing with self-represented litigants
is that judges have to interact with people from a wide variety of
cultures and backgrounds without a lawyer acting as the translator.
This chapter describes the often serious unintended problems that this
can cause for access to justice for the self-represented, takes the
experiences and insights of many judges, and suggests ways that
judges can work to overcome these dynamics in their judging.
I.
Lawyers have generally been to law school for at least three years.
Theyve spent time with other law students and lawyers. Theyve read
cases, watched hearings, and often have years of experience in the
courtroom. They know the legal shorthand used in most types of
cases. Often theyve appeared in front of a particular judge on multiple
occasions. They generally understand what information that particular
judge wants, which issues are relevant and which are not, and they are
not as emotionally involved in the case as their client is. A judge can
therefore interact with all attorneys in pretty much the same way; a
judge does not have to adapt his or her style to accommodate the
minor differences among the attorneys.
In contrast, most people representing themselves have had very little
contact with the court system. They know a lot about the facts in their
case, but they often dont know how to fit that knowledge into a legal
solution. They dont know what to expect in court.
10-1
10-2
2.
3.
4.
5.
A.
Categorization of and Preference for People Based on
Group Identity
In fact, the human ability to categorize experience is an indispensable
cognitive device for understanding, negotiating, and constructing the
world.67
64
10-3
B.
Human Brains Encode Information About Groups of People
Into Memories
These mental constructs are sometimes called schemas. In this way,
brains can be likened to computer hardwarewhat goes in that
hardware will differ from person to person, but humans all process,
code, store, and retrieve data similarly.
Similar to categorization, stereotyping is a mental shortcut that forms
associations between groups of people and the attributes we believe
typical of those groups. Stereotypes can also be either positive or
negative. One might, for example, have a stereotype of all lawyers
from one law school as smart and another law school as dumb.
C.
Humans Strongly Prefer Persons From the Same Social
Categories
This phenomenon is sometimes called in-group favoritism and outgroup derogation. Whether these preferences are strong or weak, or
whether they exist at all (there are instances where people prefer
those in groups to which they do not belong, for example) will vary
from person to person.
10-4
D.
Humans Tend to Perceive Out-Group Members as All the
Same
An example of this is the they all look the same phenomenon. We
also engage in in-group overexclusion whereby ambiguities as to
whether someone belongs or does not belong to our group are most
likely to be resolved against inclusion.
E.
Preference for Members of In-Groups Begins at an Early
Age
These preferences become automatic, habitual lenses through which
we view the world. Children can show in-group preference before the
age of two.
Children exposed to racial diversity at an early age often exhibit a clear
absence of in-group favoritism and out-group derogation.
However, contact alone is generally not enough, and other factors
must be present:
1.
2.
3.
4.
F.
Human Brains More Readily Process Information That
Confirms Our Beliefs, Attitudes, or Stereotypes
In fact, when humans are faced with information inconsistent with our
beliefs, we revise them under certain circumstances, but we are more
likely to create a subgroup category (an exception), leaving the initial
68
10-5
general belief intact. This is especially true when the out-group is large
and the association or stereotype negative.
Some examples of this are Youre different from (or not like) other
________, or You can come home for Thanksgiving, but dont bring
your _______ friends. Thus stereotypes are much like heat-seeking
missiles in search of confirming information.
We also have a propensity to ascribe the mistakes or failures of others
to their inherent qualities or flaws but our own mistakes or failures and
those of people in our in-groups to external circumstances.
G.
These Early Beliefs, Attitudes, or Stereotypes Continue to
Exist at an Unconscious Level
These biases may persist despite a commitment to moral and ethical
principles such as equal justice, honesty, and integrity in decision
making, or to making decisions based only on the facts and
circumstances of each case.
H.
69
10-6
I.
70
Brown, p. 211.
10-7
4.
5.
6.
7.
8.
10-8
Within our system of justice, there are many safeguards against the
operation of personal bias in judicial decision making, foremost among
them the ethical imperatives that guide and constrain judges. It is
unlikely that any judge is not motivated to be fair and accurate.
However, research indicates that good intentions are not enough to
offset implicit bias. Conscious attention and effort are also needed.
Remember the canons relative to bias, prejudice, fairness,
etc. Remember the Constitution requires a neutral, detached
magistrate.
10-9
B.
Maximize Accountability
C.
Are hearings with some groups longer? Shorter? Why? Studies in the
context of interviewing indicate that interviewers with negative bias
toward a certain group take less time, make less eye contact, sit
farther from, and make more speech errors (e.g., stuttering,
hesitations) when interviewing a member of that group.
Allow both parties the same amount of time to address the
court.
Prepare in advance about the people and the issues; allot
sufficient time for hearings to avoid impatience; listen in the
courtroom to make each person become an individual to me.
Slow down; listen carefully.
D.
10-10
E.
Be Conscious of Difference
F.
71
10-11
G.
H.
Seek out Images and Social Environments That Challenge
Stereotypes
In How (Un)ethical Are You? by Mahzarin R. Banaji and colleagues,
the authors describe a judge who, despite a strong belief that her
decisions were unbiased, was concerned that she might be harboring
unconscious prejudices from working in an environment that daily
reinforced the association between black men and crime. She decided
to create an alternative environment by spending some time in a
neighboring court where the criminals being tried were predominantly
white. Malcolm Gladwell, in the bestseller Blink, recommends
72
10-12
I.
What the Harvard Business Review says of managers holds true for
judges: Managers who aspire to be ethical must challenge the
assumption that theyre always unbiased and acknowledge that
vigilance, even more than good intention, is a defining characteristic of
an ethical manager.73
Keep reminders (nonobvious) notes on the bench not to buy
into patterns.
73
Ibid., p. 64.
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Conclusion
The roots and dynamics of unintended bias run deep throughout all of
life, and the judging enterprise is no exception. A commitment to
understanding and eradicating these dynamics can go far in building
access to truly neutral justice for all.
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A.
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B.
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C.
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II.
A.
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B.
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C.
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D.
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E.
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F.
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III.
Community Resources
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IV.
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A.
Keeping Perspective
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B.
Avoiding Isolation
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Conclusion
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11
Addressing Litigant Mental Health Issues
in the Courtroom
Introduction
For many judges and court staff, the problems of dealing with selfrepresented litigants are exacerbated by the fact that some of them
may be suffering from forms of mental illness, recognized or
unrecognized. This is particularly apparent in criminal cases where
litigants generally have the right to counsel and are choosing to
represent themselves.
Judges and court staff are often deeply uncertain about how to deal
with these litigants, fearful of a potential loss of control and sometimes
even of actual physical risk. At a minimum, these litigants are seen as
highly disruptive to court functioning.
This chapter discusses the dynamics of mental illness in the selfrepresented litigant context and suggests approaches to assist in
addressing litigants needs and to minimize disruption of court
processes.
I.
Current Scientific Perspective on Mental Health
Problems
11-1
A.
C.
1.
2.
3.
Judges working with mentally ill litigants are often highly motivated to
be helpful to them. Cognitive neuroscience has found that the desire to
help people in trouble is strong.74 This normal interpersonal response
74
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II.
A.
2.
C.
3.
4.
5.
2.
4.
5.
6.
7.
E.
1.
2.
3.
4.
1.
2.
3.
4.
5.
2.
3.
4.
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5.
6.
F.
The Importance of Disengagement and of Saying No
Calmly
The ability of a judge to disengage from dysfunctional interactions with
litigants cannot be overemphasized.
1.
2.
2.
3.
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A.
Keeping Perspective
4.
5.
B.
Avoiding Isolation
T. Ells and R. Showalter, Work Related Stress in American Judges (1994) 22(1)
Bulletin of American Academy of Psychiatry and the Law 7183.
11-13
Conclusion
While mental health issues do indeed increase the challenge of serving
the self-represented, both judges and court staff, when properly
prepared and supported, can move toward resolving any legal issues
and assisting in getting such litigants the help they need.
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I.
12-1
II.
12-3
12-3
12-3
C.
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D.
12-4
A.
B.
E.
F.
IV.
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12-5
A.
Self-Help Services
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B.
Simpler Procedures
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C.
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D.
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E.
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F.
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G.
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H.
V.
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Conclusion
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12
I.
12-2
B.
Building and Reinforcing Staff Support for Such
Innovations
Innovations that increase access to justice frequently have the effect
of asking court staff and community service providers to do more than
is typically in their job description. While such staff receive gratification
12-3
from helping people, and from the positive response that most litigants
show to those who are genuinely trying to help, recognition by the
judge for their efforts is also tremendously helpful. Some judges
consider giving awards, holding a reception, or just saying thanks.
C.
F.
Self-Help Services
Simpler Procedures
Clearly, not all litigants are able to represent themselves, and pro
bono and limited scope or unbundling programs are crucial to meet the
needs of persons requiring more than self-help assistance. These
programs depend on bar participation, and both the extent and style of
participation are very much a matter of local culture.
Judges are the effective heads of local legal culture and should seek
ways to send signals that help transform that culture. They can, for
example, make sure that the calendar does not needlessly burden pro
bono attorneys or attorneys that provide limited scope services; they
can make sure that limited scope attorneys are eligible for fee-shifting
payments; they can respect the limits of limited scope representation
agreements; they can add a personal note of thanks to a pro bono
attorney and encourage public recognition.
D.
may experience are needed to craft overall changes, and the judges
presence signals the importance of the issue and the priority that
should be placed on it.
F.
Judges also report that they have been able to expand resources
available to the litigants in front of them by:
1.
2.
3.
4.
12-7
Conclusion
The role of the judge is crucial.
An inspired, inspiring, and engaged judge can help lead changes in our
system that will improve the access to justice, and thus the lives and
the belief in our democratic institutions, of millions.
12-8
Appendix
1. Sample Script: Traffic Arraignment Calendar
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Appendix
Sample Script
Traffic Arraignment Calendar
Ladies and gentlemen:
This is the traffic arraignment calendar. This is the time when you will
be informed of the charges that have been filed against you on the
citations you received. At this arraignment, you may plead guilty, not
guilty, or no contest. For those persons charged with misdemeanors,
you have the right to counsel, the right to have time to seek counsel,
and if you cannot afford private counsel, I will give you the opportunity
to interview with the Public Defender to determine whether you are
financially eligible for their services. I will ask you if you want time to
seek counsel when I advise you of the charges against you.
If you are charged with an infraction and you plead not guilty, your
case will be set for a court trial at some future date, and the court will
subpoena the officer to be present. Unless you tell me that you do not
waive time for trial, I will assume you do waive time for trial. At that
trial you will be able to confront the officer, and the officer will be
required to prove the case against you beyond reasonable doubt. I
cannot find you not guilty today no matter what explanation you may
have. I can only make a finding of not guilty after there has been a
trial at which the court has heard both sides of the case.
If you plead guilty or no contest, I will assume that you waive time for
sentencing unless you tell me that you do not waive time for
sentencing.
If you are charged with an equipment violation or a registration
violation, it is not a defense that the car was not yours at the time you
received the ticket, because when you drive a vehicle in California, it is
your responsibility to make sure that it meets all the requirements of
the California Vehicle Code. If you are charged with a failure to appear,
it is not a defense that you didnt receive a courtesy notice, because
when you sign the ticket, you promise to come to court within the time
written on the bottom of the ticket.
For those persons who wish to attend traffic school, the fee charged by
the court to administer this is $_____. This is in addition to any fee
that is imposed in lieu of a fine. You are eligible for traffic school if you
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Sample Script
Traffic Court Trials
Good morning, ladies and gentlemen.
This is the time and place for traffic court trials. Before we begin the
trials, I will explain briefly the procedure I will follow in hearing these
matters.
We will be hearing cases one at a time. As I call your case, I ask that
you come forward. The officer will take the table that is to my right
(closest to the jury) and the defendant will take the table to my left.
As the state has the burden of proof, I will ask the officer some
preliminary questions about the citation that was issued, then ask the
officer to tell me what caused him or her to issue the citation. Once
the officer has completed his or her testimony, I will provide the
defendant with the opportunity to cross-examine the officer, which is
that portion of the trial that allows the defendant to ask questions of
the officer about the testimony that has been given. That is not the
time to present any testimony on your own behalf. That will be
provided at a later time. If you wish to ask questions of the officer, I
do ask that you attempt to phrase each question in the form of a
question, that you ask the questions one at a time, and that you allow
the officer to answer each question. These proceedings are being
recorded, and to have an appropriate record, only one person can be
speaking at a time.
After that is complete, I will give the defendant the opportunity to
present any evidence on his or her behalf and to give any testimony if
he or she decides to do so, keeping in mind that a defendant is not
required to present any evidence and cannot be forced to testify, as
the defendant does have the right to remain silent.
During your testimony, you may offer any photographic or
documentary evidence you may have, which I will examine and take
into full consideration. You also have the right to make a brief closing
argument in defense of your position whether or not you have
testified. When all the evidence is before me for decision, I will give
you my ruling.
Call the matter of People v. ________________.
Officer, will you please identify yourself for the record.
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Sample Script
Short Advisement
You have the right to be represented by an attorney. If you wish to
postpone this arraignment so that you can have an attorney present,
let me know at this time, and we will postpone your case for
arraignment and plea.
All matters before this court are infractions or are treated as a matter
of law as an infraction. If you wish to have your case treated as a
misdemeanor, let me know at this time. The primary difference
between an infraction and a misdemeanor is that you are not entitled
to a jury trial or court-appointed counsel if your case is treated as an
infraction. However, if you plead guilty or are found guilty of an
infraction, the only possible punishment is a fine. People who are guilty
of misdemeanors face the possibility of time in jail.
If you plead not guilty, the matter will be set for a court trial within 45
days.
If you plead guilty, you are giving up the following rights:
A court trial.
The right to see, hear, and cross-examine the witnesses against
you.
The right to have the court order witnesses on your behalf to be
present and to bring physical evidence to the courtroom.
The right to not incriminate yourself, which means you cant be
forced to plead guilty and if you choose to have a trial and
decide not to testify, your decision not to testify cant be used
against you. If you plead guilty, you will be agreeing that you
committed the infraction and thus will be incriminating yourself.
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Preparation of QDRO
Domestic Violence Assistance
Guardianship Assistance
Attorney Referrals
Child Support
Other:
_______________________________
_____________________________
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Sample Script
Family Law and Domestic Violence Calendar
Good morning. For many of you this is your first appearance in
court, so I am going to briefly explain the courts procedures.
I will first read through the calendar. As I call your name, please let
me know if you are here. If the other side is not hereplease let
me know so I can take your case as one of my first cases.
If you have been unable to serve the other side, please let me know
when I call your name. I will give you another court date, and you
can try to get that person served for the next court date. You will
need to complete a form called Re-issuance of Order to Show
Cause. If you need help with that, there are volunteers here today
who can help you with the paperwork.
Finally, if you have an agreement on all of the issues, let me know
because I will then move your case to the top of the list.
Whether there is one side here or both sides, after I hear your case
I will make an order. You will need to write up that order in a
written order after hearing. For those of you who are representing
yourself, that can be difficult to do. I know it can be hard
remembering everything that is ordered. So, we do have some
volunteers here today who can write up the order after hearing. If
you would like their help, let me know when I hear your case, and
they will meet with you in the hallway after your case is over. They
are not attorneys, so they cannot give you legal advice. They are
members of the community who are volunteering their time to help
people prepare their orders.
When your case is called, please come forward and take a seat at
the table. The person who filed the motion should sit here [point to
seat] and the other side should sit here [point to seat]. As you can
see, we have a lot of cases this morning, so I will need to move
pretty quickly so that everyone can get heard today. When I hear
your case, I will ask you if the statements in your declarations are
true and correct. I will also ask you if you still want the orders you
asked for in your motion. If both sides are here today, I will hear
first from the person who filed the motion and then I will hear from
the other side. I will hear from both sides before I make my
decision, but I cannot hear from both sides at the same time.
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