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
JANUARY 2007
A Benchguide for Judicial Officers

January 2007
Judicial Council of California

Administrative Office of the Courts
Center for Families, Children & the Courts
455 Golden Gate Avenue
San Francisco, CA 94102-3688
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.
Copyright 2007 by Judicial Council of California/Administrative Office

of the Courts. All Rights Reserved.
Except as permitted under the Copyright Act of 1976 and as otherwise
expressly provided herein, no part of this publication may be
reproduced in any form or by any means, electronic or mechanical,
including the use of information storage and retrieval systems, without
permission in writing from the copyright holder. Permission is hereby
granted to nonprofit institutions to reproduce and distribute this
publication for educational purposes if the copies credit the copyright
holder.
Printed on 100% recycled and recyclable paper.
ii
Judicial Council of California

ADMINISTRATIVE OFFICE OF THE COURTS
CHIEF JUSTICE RONALD M. GEORGE
Chair, Judicial Council
WILLIAM C. VICKREY
Administrative Director of the Courts
RONALD G. OVERHOLT
Chief Deputy
CENTER FOR FAMILIES, CHILDREN & THE COURTS
PROJECT STAFF:
DIANE NUNN
Director
CHARLENE E. DEPNER
Assistant Director
LEE MORHAR
Assistant Director
BONNIE ROSE HOUGH
Supervising Attorney
DEBORAH CHASE
Senior Attorney
JOSEPH NGUYEN
Administrative Coordinator
JOHN GREACEN
Consultant
KATHLEEN SIKORA
Consultant
KELLY TAIT
Consultant
RICHARD ZORZA
Consultant
iii
Members of the Task Force on Self-Represented Litigants

HON. KATHLEEN E. OLEARY, CHAIR
Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three
MR. ALBERT Y. BALINGIT

Attorney, Department of Consumer Affairs, Legal
Services Unit
HON. MICHELE D. LEVINE

Judge of the Superior Court of California,
County of Riverside
HON. VINCENT J. CHIARELLO

Judge of the Superior Court of California, County of
Santa Clara
MS. SUZANNE CLARK MORLOCK

Attorney at Law, Chico
MS. TINA L. RASNOW
Director, Self-Help Legal Access Center,
Superior Court of California, County of Ventura
MR. NEAL DUDOVITZ

Executive Director, Neighborhood Legal Services of
Los Angeles County
HON. ANDREW GUILFORD
United States District Judge, Santa Ana
MS. SHAROL STRICKLAND

Executive Officer, Superior Court of California,
County of Butte
HON. DONNA J. HITCHENS

Judge of the Superior Court of California, County of
San Francisco
HON. ERICA YEW

Judge of the Superior Court of California, County
of Santa Clara
MS. MARILYN K. JAMES

Director, Evaluation and Planning, Superior Court
Of California, County of San Diego
HON. LAURIE ZELON

Associate Justice of the Court of Appeal, Second
Appellate District, Division Seven
HON. SUZANNE KINGSBURY

Presiding Judge of the Superior Court of California,
County of El Dorado
MR. JOHN ZORBAS

Director, Butte County Law Library
ADMINISTRATIVE OFFICE OF THE COURTS

PROJECT STAFF
MS. BONNIE ROSE HOUGH, Supervising Attorney
MR. KEVIN CHEW, Administrative Coordinator

DR. DEBORAH J. CHASE, Senior Attorney

MS. TRACY KENNY, Legislative Advocate

Office of Government Affairs
MR. HARRY JACOBS, Senior Attorney

MR. JOSEPH NGUYEN, Administrative

Coordinator, Center for Families, Children & the
Courts
LIAISONS
JUDICIAL COUNCIL
MR. ANTHONY CAPOZZI
Law Offices of Anthony Capozzi
Fresno, California
STATE BAR OF CALIFORNIA

MS. MARY LAVERY FLYNN
Director, Legal Services Outreach
State Bar of California
PRESIDING JUDGES ADVISORY COMMITTEE

HON. JOHN R. SMILEY
Presiding Judge of the Superior Court of California,
County of Ventura
CJER GOVERNING COMMITTEE

HON. CAROLYN B. KUHL
Judge of the Superior Court of California,
County of Los Angeles
COURT EXECUTIVES ADVISORY COMMITTEE

MS. LISA GALDOS
Executive Officer of the Superior Court of California,
County of Monterey
iv
Table of Contents
1.
Self-Represented Litigants: Who Are They and What Do They

Face When They Come to Court?
2.
Expanding Access to the Court Without Compromising

Neutrality
3.
California Law Applicable to a Judges Ethical Duties in Dealing

with Self-Represented Litigants
4.
Solutions for Evidentiary Challenges
5.
Caseflow Management
6.
Courtroom and Hearing Management
7.
Settling Cases
8.
Special Due Process Considerations
9.
Communication Tools
10. Avoiding Unintended Bias

11. Addressing Litigant Mental Health Issues in the Courtroom
12. Judicial Leadership in Access to Justice
Appendix Sample Scripts and Checklists
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
Ms. Maeve Elise Brown, National Housing Law Project, Oakland,

California
Hon. Charles Campbell, Jr., Superior Court of California, County of
Ventura
Mr. Anthony Capozzi, Law Offices of Anthony Capozzi, Fresno,
California
Hon. Norma Castellanos-Perez, Superior Court of California, County
of Tulare
Mr. Rod Cathcart, Administrative Office of the Courts
Ms. Tiela Chalmers, Volunteer Legal Services Program of the Bar
Association of San Francisco
Dr. Deborah Chase, Administrative Office of the Courts
Hon. Vincent J. Chiarello, Superior Court of California, County of
Santa Clara
Hon. Rene Chouteau, Superior Court of California, County of
Sonoma
Hon. Nancy Cisneros, Superior Court of California, County of Fresno
Ms. Donna Clay-Conti, Administrative Office of the Courts
Ms. Nanci Clinch, Attorney at Law, County of Placer
Hon. Jacqueline Connor, Superior Court of California, County of Los
Angeles
Ms. Emberly Cross, Cooperative Restraining Order Clinic, San
Francisco, California
Hon. Amy Davenport, Vermont Trial Court
Ms. Sherna Deamer, Superior Court of California, County of Contra
Costa
Ms. Charlene Depner, Administrative Office of the Courts
Hon. Sean Dowling, Superior Court of California, County of Nevada
Mr. Neal Dudovitz, Neighborhood Legal Services of Los Angeles
County
Hon. Lynn Duryee, Superior Court of California, County of Marin
Hon. Sherrill Ellsworth, Superior Court of California, County of
Riverside
Hon. Russell Fagg, Montana District Court
Hon. Fern Fisher, New York City Civil (Housing Court)
Ms. Mary Lavery Flynn, State Bar of California
Mr. David Foster, Administrative Office of the Courts
Ms. Lisa Galdos, Superior Court of California, County of Monterey
Ms. Theresa Gary, Superior Court of California, County of Kern
Hon. Margery German, Suffolk Juvenile Court, Massachusetts
Ms. Alissa Glasser, Administrative Office of the Courts
Ms. Cynthia Gray, American Judicature Society,Illinois
Hon. Karla M. Gray, Chief Justice, Montana Supreme Court
Mr. John Greacen, Greacen Associates, LLC, New Mexico
vii
Hon. Mary Ann Grilli, Superior Court of California, County of Santa

Clara
Hon. Andrew Guilford, U.S. District Court, Central District of
California
Hon. David Haet, Superior Court of California, County of Solano
Ms. Paula Hanford-Agor, National Center for State Courts, Virginia
Ms. Frances Harrison, Superior Court of California, County of San
Diego
Ms. Sarah Heckman, Superior Court of California, County of Sutter
Hon. Donna J. Hitchens, Superior Court of California, County of San
Francisco
Hon. Peggy Hora (Ret.), Superior Court of California, County of
Alameda
Ms. Bonnie Rose Hough, Administrative Office of the Courts
Ms. Cecelia Isaac, Superior Court of California, County of Ventura
Mr. Harry Jacobs, Administrative Office of the Courts
Ms. Marilyn James, Superior Court of California, County of San
Diego
Ms. Beth Jay, Attorney, California Supreme Court
Hon. Constance Jimenez, Superior Court of California, County of
Santa Clara
Hon. Mark Juhas, Superior Court of California, County of Los
Angeles
Ms. Sharon Kalemkiarian, Attorney at Law, San Diego
Ms. Jane Kaplan, Attorney at Law, County of Alameda
Hon. Frances A. Kearney, Superior Court of California, County of
Placer
Ms. Carla Khal, Superior Court of California, County of Tulare
Hon. Suzanne N. Kingsbury, Superior Court of California, County of
El Dorado
Ms. Heidi Kolbe, Facilitator, Sacramento
Hon. Judith Kreeger, Eleventh Judicial Circuit for Miami-Dade,
Florida
Hon. Carolyn B. Kuhl, Superior Court of California, County of Los
Angeles
Hon. James Lambden, First Appellate District, Division Two, San
Francisco
Ms. Evy Leiveige, Superior Court of California, County of Alameda
Hon. Michele D. Levine, Superior Court of California, County of
Riverside
Ms. Cristina Llop, Attorney at Law, San Francisco
Mr. Bob Lowney, Administrative Office of the Courts
Hon. Edward Lynch, District Court for First Judicial District of
Minnesota
viii
Hon. Catherine Lyons, Superior Court of California, County of San

Francisco
Hon. Daniel Mably, 4th Hennepin District Court, Minnesota
Mr. Larry Maloney, Superior Court of California, County of Riverside
Hon. Ruben Martino, Harlem Community Court
Hon. Laura Masunaga, Superior Court of California, County of
Siskiyou
Mr. James Mensing, Administrative Office of the Courts
Ms. Debra Meyers, Superior Court of California, County of San
Bernardino
Ms. Kim Milligan, Attorney at Law, Nevada City
Hon. James Mize, Superior Court of California, County of
Sacramento
Mr. Lee Morhar, Administrative Office of the Courts
Hon. Elaine Moriarty, Suffolk Probate and Family Court, Boston
Ms. Suzanne Clark Morlock, SelfHelp Assistance and Referral
Program (SHARP), Superior Court of California, Counties of
Butte, Glenn and Tehama
Hon. Heather Morse, Superior Court of California, County of Santa
Cruz
Dr. Lynn OConnor, Professor, the Wright Institute, Associate
Clinical Professor, University of California, Berkeley
Hon. Kathleen OLeary, Fourth Appellate District, Division Three,
Santa Ana
Hon. Donna Petre, Superior Court of California, County of Yolo
Ms. Tina Rasnow, Superior Court of California, County of Ventura
Hon. Janice Redding, 4th Hennepin District Court, Minnesota
Mr. Michael Roosevelt, Administrative Office of the Courts
Hon. Arnold Rosenfield, Superior Court of California, County of
Sonoma
Hon. Robert A. Schnider, Superior Court of California, County of Los
Angeles
Ms. Gretchen Serrata, Superior Court of California, County of
Nevada
Ms. Kathleen Sikora, Attorney at Law, Berkeley, California
Hon. John R. Smiley, Superior Court of California, County of Ventura
Hon. Nancy Wieben Stock, Superior Court of California, County of
Orange
Ms. Sharol Strickland, Superior Court of California, County of Butte
Hon. Thomas L. Surh, Superior Court of California, County of
Alameda
Ms. Kelly Tait, Kelly Tait Consulting, Reno, Nevada
Ms. M. Sue Talia, Attorney at Law, Walnut Creek, California
Mr. Alan Weiner, Administrative Office of the Courts
ix
Ms. Bobbie Welling, Administrative Office of the Courts

Hon. Dale Wells, Superior Court of California, County of Riverside
Hon. Kathleen M. White, Superior Court of California, County of Yolo
Ms. Suzanne Whitlock, Superior Court of California, County of
Stanislaus
Hon. Cerena Wong, Superior Court of California, County of Sonoma
Hon. Patricia Wong, Superior Court of California, County of
Sacramento
Hon. Erica Yew, Superior Court of California, County of Santa Clara
Hon. Laurie Zelon, Second Appellate District, Division Seven, Los
Angeles
Mr. John A. Zorbas, Butte County Law Library, Oroville, California
Mr. Richard Zorza, Zorza Associates, Washington, D.C.
Special thanks to California small claims legal advisors, family law
facilitators, family law judicial officers, court clerks, and self-help
center directors who responded to our surveys about working with selfrepresented litigants and who participated in focus groups and
interviews to provide guidance. Many thanks to the judges and their
staff who let us observe their courtrooms and interview litigants after
their hearings, and to the many self-represented litigants who shared
their experiences.
The viewpoints expressed here do not necessarily represent the
position of the contributors to this benchguide.
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
and provides scripts and suggestions on managing a courtroom with

self-represented litigants to ensure that it runs smoothly.
Because self-represented litigants do not have attorneys to interpret
the foreign language of the courtroom, to explain the process, and to
screen for and remedy problems that may occur, judges are faced with
special challenges. This benchguide therefore provides specific
information and tools on enhancing communication skills and on
recognizing and dealing with potential unintended bias.
Historically, limited resources have been allocated to family, small
claims, misdemeanor and traffic, and eviction cases, resulting in highvolume dockets that create heavy workloads for judges and that allow
little time for litigants to present their cases. When judges feel that
they have insufficient time to listen and get the facts they need to
make a decision, their job becomes more stressful. The guide provides
suggestions for ways to get help to make such assignments more
manageable and concludes by discussing the crucial role of judicial
leadership in building the innovations that enhance access to justice.
The guide is intended to provide a framework for analyzing the ethical,
legal, and practical issues that judges face in handling a courtroom
with self-represented litigants. It assumes that judges are most
effective when they develop a style that works with their personality
but encourages them to reflect on that style and shares ideas that
other jurists have found helpful. Many judges report that incorporating
these techniques makes them more effective jurists in all cases,
including those in which lawyers participate.
The benchguide is designed to help judicial officers in all parts of their
careerfrom the first day on the bench to veteran statusto think
through these issues and find ways to make handling cases involving
self-represented litigants a rewarding part of their judicial career.
This is a rapidly evolving area of law and practice. This benchguide will
therefore be updated and modified over time. Judges are encouraged
to send suggestions, ideas, questions, and comments to
[email protected].
xii
Chapter 1: Self-Represented Litigants: Who Are They

and What Do They Face When They Come To
Court?
Introduction
1-1
I.
Why Do Litigants Represent Themselves?
1-2
II.
Barriers to Self-Represented Litigants in the Court

System
1-3
A.
The Barrier of Legal Language
1-3
B.
The Complexity of the Clerks Office
1-4
C.
Problems With Service
1-5
D.
Legal Requirements That Are Not Intuitive
1-6
E.
Procedural Rules That Vary Between Types of Cases
1-6
F.
Overcrowded Dockets
1-6
G.
Courts Often Do Not Prepare an Order After a Hearing
1-7
H.
Cases Can Be Dismissed Because of Litigants Failures to

Perform Steps of Which They Had No Knowledge
1-7
I.
Lack of Understanding of Orders and Judgments and How

to Enforce Them
1-8
J.
No Right to Interpreters in Civil Cases
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.
Why Do Litigants Represent Themselves?
Most self-represented litigants in civil cases give the following answers

when asked why they do not have a lawyer:1
1.
I cant afford a lawyer; or
2.
My case is simple enough to handle on my own.
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
legal aid attorneys in California is 10,000 to 1. Legal needs studies

indicate that legal services programs are able to serve only 20 percent
of the people needing help.
I am handling a case where the parties really need an
attorney to help them out. They keep coming to court, and I
keep telling them that they need a lawyer. I finally realized
that the only way theyll be able to get a lawyer is if I come
up with the $5,000 retainer.
Family law judge
Court-based research and statistics also show that a small number of
self-represented litigants could afford an attorney (possibly by making
some significant sacrifice) but still choose not to use one. They are part
of a larger do-it-yourself social movement to forgo various professional
services, including real estate brokers, investment advisors, doctors,
and lawyers.
It is important for judges to be aware that the choice not to have a
lawyer is generally not a choice that litigants wish to make, but that
litigants are trying to take care of problems in their lives in the best
way that they can.
II. Barriers to Self-Represented Litigants in the Court

System
Despite the many efforts at improving access to the courts for the selfrepresented, they still face many barriers, not all of which are obvious
to those who work in the courts.
A.
The Barrier of Legal Language
The specialized language of the courts, for example, can act as a

barrier. To understand the impact of this barrier, it may be useful to
reflect on experiences in hospitals. Hospital patients are often highly
confused and intimidated by the many specialized terms that hospital
staff use as shorthand. When used without explanation, these terms
can be frightening to patients, who are at the mercy of the institutions
procedures. This is heightened by the fact that the underlying problem
1-3
bringing them to the hospital is usually emotionally charged, and they

are scared to be there in the first place.
Even when patients think that they understand what they are being
told at the time, its easy to be confused later when they try to
remember what their doctor said or what actions they were supposed
to take.
The experience of self-represented litigants in our courthouses and
courtrooms is often similar.
People representing themselves often find it extremely difficult to
understand the words used in the courtroom, particularly when the
judge and staff use Latin or French terms that lawyers rely on as legal
shorthand. This is even more complicated for those who do not speak
English as their first language and who come from different cultures.
An obvious example is pro per, an abbreviation for the Latin phrase
in propria persona, meaning appearing on his or her own behalf,
which is widely used in California trial courts. In fact, it has been said
that many pro pers do not even know that that is what they are. To
avoid the confusing abbreviation, many judges and staff use selfrepresented litigant.
B.
The Complexity of the Clerks Office
Litigants often find themselves in court clerks offices that are

confusing and crowded with lawyers and litigants wanting information
and assistance with filling out forms, as well as performing the
traditional filing tasks.
In many cases, clerks have in the past been explicitly trained to never
answer any questions from the nonlawyer public. Such assistance has
been perceived as violating the courts neutrality or as the
unauthorized practice of law. Litigants therefore frequently still find
their paperwork being refused as inappropriate or incomplete, but are
given no help to correct it, no explanation of the problem or how to fix
it, or no referral to someone who could help.
Self-represented litigants are often confused about the status of their
case, what their next step should be, what the court has ordered, or
even how to deal with conflicting orders that they didnt even know
existed.
1-4
C.
Problems With Service
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.
The litigants may not understand that they cannot serve

the papers themselves on the opposing party.
3.
The litigants may not be able to physically locate the other

party that they are required to serve, or to navigate the
complex procedural alternatives available.
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.
Litigants may fill out the required proof of service form

incorrectly.
6.
Often the litigants are unaware of the alternative service

methods available, what those often highly complex
alternatives require, or how to access and make use of
them. (How many judges or lawyers have tried to
summarize the laws governing service in a few simple
sentences?)
7.
When litigants appear for their hearing without having

successfully accomplished effective service or without a
completed proof of service, the case will be postponed until
a later date or dismissed. This causes distress and hardship
to litigants, delays their ability to enforce important rights,
and takes up valuable time for both the litigants and the
court.
1-5
D.
Legal Requirements That Are Not Intuitive
Most legal cases involve technical and sometimes superficially

counterintuitive requirements that are confusingeven to lawyers with
limited experience in a subject matter. For example, in family law, if
there are financial issues of any kind involved, such as child or spousal
support, the litigants are required to prepare detailed income and
expense declarations prior to the court appearance. Frequently they
are not aware of this requirement and fail to prepare the proper
documents, which is likely to result in additional delays and frustration
for all. In civil cases, defendants must serve an answer before they file
it with the court. Some courts may require particular pleadings to be
prepared on different colored forms or to comply with other local rules.
These requirements are often tremendously frustrating for selfrepresented litigants.
E.
Procedural Rules That Vary Between Types of Cases
California procedural rules in family cases require the parties to

request a hearing in order for the case to move forward. The court
does not routinely schedule such hearings on its own initiative. Many
self-represented litigants are completely unaware of this requirement,
which is inconsistent with the way that most nonjudicial institutions
function. This can be particularly confusing if litigants have had
experience in other types of cases, such as juvenile dependency or
domestic violence, in which the court takes a much more active role in
setting hearings and managing the cases.
In a San Diego study on why self-represented litigants hadnt finished
their divorce cases after five months, 60 percent of such litigants either
did not realize that there was anything more that they had to do or
just did not know what to do. Nearly 20 percent were waiting to hear
from the court before doing anything more.2
F.
Overcrowded Dockets
All too often, cases with self-represented litigants are handled on

highly crowded dockets. Time constraints and evidentiary issues can
2
J. Greacen, Developing Effective Practices in Family Law Caseflow Management

(Administrative Office of the Courts Center for Families, Children & the Courts,
2005), p. 25.
1-6
prevent litigants from communicating sufficiently, clearly, and

comprehensively with the judge. Litigants often do not understand
what information the judge needs to make a decision on a given issue
and therefore often take court time asking judges and courtroom staff
to explain legal terms and procedures to them. Frustration for both
litigant and judge occurs when a self-represented party insists, often in
good faith, on giving lengthy explanations about matters that he or she
does not realize are irrelevant as a matter of law to the issue at hand.
G.
Courts Often Do Not Prepare an Order After a Hearing
Each time there is a hearing in a case where the judge makes an

order, the order needs to be memorialized in writing. It is usually the
attorneys responsibility to prepare the written order after hearing.
Self-represented litigants often do not know that this is required, let
alone how to prepare such orders in a manner acceptable to the court
and to law enforcement. As a result, they leave without written orders
to which they can refer, and the courts action is therefore effectively
unenforceable. The lack of enforcement of the courts action undercuts
the legitimacy of and confidence in the legal system.
Without a written order, it is extremely difficult for litigants to be fully
aware of their rights and responsibilities arising from the courts
decision. Additionally, lack of a written order leaves the court file with
only an abbreviated minute order for the judge to refer to when
reviewing the file for future hearings. This makes enforcement of these
orders well-nigh impossible.
Because self-represented litigants do not realize that they are
generally required to prepare a proposed judgment for the courts
review and signature, there may be no order at all, or inaccurate or
incomplete judgment paperwork will often be processed and returned
repeatedly before final judgment is eventually, if ever, entered. Often,
the lack of an order does not come to the courts attention until there
is a crisis and the order must be enforced.
H.
Cases Can Be Dismissed Because of Litigants Failures to
Perform Steps of Which They Had No Knowledge
When self-represented litigants fail to take the necessary steps to
complete their cases, the courts deem them abandoned and will
dismiss such cases after several years, on the grounds of lack of
1-7
prosecution. As many as one-third of all family law files from the

1980s prepared for archiving in one California trial court lack a final
judgment,3 which can obviously have serious and irreversible
consequences for the litigants and their children.
I.
Lack of Understanding of Orders and Judgments and How
to Enforce Them
Litigants often do not understand the terms of the courts orders and
judgments. Without an attorney, they have no one to help them
interpret those terms or their implications. Moreover, litigants often
lack an understanding of the legal mechanisms for enforcing the terms
of a courts judgment. Many expect the court to enforce its orders on
its own. If the other party does not comply voluntarily, they are at a
loss as to how to proceed.
J.
No Right to Interpreters in Civil Cases
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
Chapter 2: Expanding Access to the Court Without

Compromising Neutrality
Introduction
2-1
I.
Substantive Justice
2-2
II.
Procedural Justice
2-2
A.
"Voice"the Opportunity to Be Heard
2-3
B.
Neutrality
2-3
C.
Trustworthiness
2-5
D.
Interpersonal Respect
2-6
E.
Demeanor of the Proceedings
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
This evolving understanding also reflects the findings in the report by

the National Center for State Courts, Trust and Confidence in the
California Courts 2005, which found that attorneys were most often
concerned with fairness in terms of the substantive legal outcomes of
cases. Citizens views of the courts, however, are heavily influenced by
their perceptions of the courts ability to deliver a fair process.5
I.
Substantive Justice
While the public focuses heavily on procedural justice matters, it is

imperative that concern for substantive justice be given equal attention
in cases involving self-represented litigants.
To decide cases fairly, judges need facts, and in self-represented
litigant cases, to get facts, judges often have to ask questions, modify
procedure, and apply their common sense in the courtroom to create
an environment in which all the relevant facts are brought out.
In short, judges have found as a practical matter that a formalized,
noncommunicative role in dealing with cases involving self-represented
litigants can lead to serious decision-making problems. Without the
additional facts that active judicial involvement brings to light, judges
are at risk of making wrong decisions.
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
heavily ingrained in lawyers and judges from their legal training in

procedure and due process.
A.
Voicethe Opportunity to Be Heard
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.
This input must have some effect on the decision-maker. If

litigants perceive that their contribution is not heard or
considered, then the voice is lost.
When self-represented litigants are stumbling in their stories, confused

by the foundational requirements of some forms of evidence and
unable to get relevant facts before the court, they do not have a
genuine voice in their cases. California judges have long been asking
questions of the litigants themselves, following up when those
questions are answered inadequately, summarizing the law when that
is helpful to move the case forward, and answering the parties
questions about the proceedings when such answers are helpful in
promoting understanding and compliance.
B.
Neutrality
Litigants expect judges to be honest and impartial decision-makers

who base decisions on facts and law. This includes the ability to
suppress any bias the judge may have and to avoid showing
favoritism.9 It also involves consistency such that there should be
similar treatment across people and time.10
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
Judges always need to be diligent about neutrality issues when

interacting with self-represented litigants, just as they are with
attorneys; however, the goal is to avoid prejudice and biasnot to
avoid communication. Communication between judges and the
participants in hearings, particularly hearings without juries, is critical.
The ability to conduct impartial and neutral communications
comfortably with all courtroom participants is a huge benefit for any
judge hearing large numbers of cases involving self-represented
litigants.
Conversely, when a judge feels the need to restrict such
communication, he or she may risk seriously impeding one or the other
side of a self-represented litigant case from adequately presenting its
position, thereby creating the appearance of bias and limiting the facts
on which the court can base its decision. For example, a judge may
hesitate to inform a party that for a document to be considered, a
proper foundation must be laid, for fear that giving the litigant this
information will be seen as taking sides. Or the judge may hold back
from pursuing a line of questioning, even if the answers would provide
information needed to decide the case fairly, to prevent the
appearance of trying to help the litigant provide the right answer. In
either case, lack of communication from the judge has potentially
hampered one side of the case and inhibited the courts ability to base
its decision on the law and the facts.
As shown in detail in the discussion in chapter 3, both the California
Code of Judicial Ethics and the American Bar Associations Model Code
of Judicial Conduct encourage proper unbiased judicial communication
that promotes high-quality decision making. There is nothing in the
Code of Judicial Ethics, in the reports of disciplinary proceedings, or in
the California case law that prohibits such nonprejudicial judicial
communication or engagement. Rather, what is prohibited is
nonneutrality or bias.11
Indeed, we know of no reported cases in which a decision has been
reversed or a judge disciplined merely for such nonprejudicial
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
engagement in fact-finding. To the extent that decisions are reversed,

or judges disciplined, it is for aggressively biased activity in a case.12
C.
Trustworthiness
Litigants expect judges to be basically benevolent toward them, to be

motivated to treat them fairly, to be sincerely concerned with their
needs, and to be willing to consider their side of the story.13
Litigants pay close attention to their perceptions of each individual
judges motivation toward them and toward others in the courtroom. If
participants believe that the judge was trying to be fair, they tend to
view the entire procedure as a fair one. Similarly, if the judge treats
people politely, and exhibits a clear concern for their rights, litigants
are likely to view the entire process as fair.14
When the judge asks questions, explains requirements or the law, and
takes steps to move the case alongand does so in an evenhanded
manner applied to both sidesthe judges motivations are far easier
for the litigants to read than if the judge is noncommunicative. Lack of
communication provides little on which an observer can base a
judgment of neutrality or other trustworthiness, except the ultimate
decision, which may well be subject to a very broad range of
interpretation. Litigants may focus on a casual gesture, fleeting facial
expression, or perceived inattention to a presentation (e.g., when the
judge is reading documents in the file) and may completely
misinterpret a judges motivation toward them.
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
When litigants are treated as valued members of society, they are

more likely to feel satisfied that the process is fair. Litigants must be
treated with dignity and respect by judges and courtroom staff.15
Interchanges between judges and litigants in a courtroom setting are
clearly not conducted in a manner socially familiar to most selfrepresented parties. If conducted in too formal a manner, the
communication style can be legally arcane and seem almost hostile; if
conducted in too informal a manner, there may be a risk of appearing
undignified or disrespectful to litigants because they are without
counsel, or even seeming too relaxed about attention to their legal
rights.
When litigants feel insecure about their own status in a situation, they
place increased attention on how they are treated by decisionmakers;16 therefore, self-represented litigants can be expected to pay
close attention to the judge in an attempt to see how that judge is
regarding them. If a judge is highly resistant to any type of
interchange with litigants, there will be little data for them to use to
assess the judges attitude toward them, which may lead litigants to
seize inappropriate cues on which to base their conclusion. For
example, a judge exercising this type of detachment may be
misinterpreted as disliking the litigant or being cold, uncaring, or
disrespectful.
Generally speaking, being informed, prepared, and willing to get to the
issues in a businesslike and friendly manner demonstrates respect for
the litigants. Taking the time to listen to the positions of both sides and
to communicate clearly the basis of the ultimate decision can result in
a feeling of calm reassurance and stability that is almost palpable in
the courtroom. In such circumstances it is not uncommon for even the
losing party to leave the courthouse with a sense of satisfaction at
being treated with dignity and respect.
15
16
Tyler, Psychology of Procedural Justice.

Tyler, What Is Procedural Justice?
2-6
E.
Demeanor of the Proceedings
Litigants value proceedings that are dignified, careful, understandable

and comfortable for them. They have even ranked these factors above
voice in importance. Therefore, the calm, well-organized
management of the proceedings and of the courtroom is extremely
important.17
There are a variety of steps a judge might take to create a
procedurally fair and easily understood courtroom environment. Judges
may want to implement structured court procedures so that each side
has the greatest possible opportunity to be heard. This is done by
being consistent in giving litigants the opportunity to explain why they
are in court and what they want.
Judges can make it clear to the litigants that they have read and
considered their submitted documents. Judges then have the option of
asking for clarification, explanation, or more specific detail as needed.
This process does not mean relinquishing control of the courtroom. To
the contrary, it will allow judges to more easily limit the information to
that which is relevant to their decision.
Judges can make opening statements explaining the process used in
the courtroom. During the hearing, judges can break the case up into
steps and explain what information is needed in each phase. Likewise,
evidentiary rulings present an opportunity for the judge to explain the
basis for a ruling in favor of or against admissibility in plain English.
A judges decision that follows these precepts will be much more
comprehensible, even if the outcome is not what the litigant desired.
Probably most importantly, the parties and observers will walk away
with a greater understanding of the process as a whole and with a
realistic perception of fairness as to the particular decision made by the
court.
E. A. Lind, R. J. Maccoun, P. A. Ebener, W. C. F. Felstiner, D. R. Hensler, J. Resnick,

and T. R. Tyler, In the Eye of the Beholder: Tort Litigants Evaluations of Their
Experiences in the Civil Justice System (1990) 24 Law & Socy Rev. 953995.
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
Chapter 3: California Law Applicable to a Judges

Ethical Duties in Dealing With Self-Represented
Litigants
Introduction
I.
3-1
Overviewthe Ethical Rules Support Access and

Neutrality
3-1
II.
General Principles from California Case Law
3-3
III.
A Summary of the General State of the Law
3-7
IV.
The Current Boundaries of Judicial Discretion

Established by California Appellate and Disciplinary Decisions 3-8
A.
What Judges Can Do
B.
What Judges Are Required to Do: Procedural

Accommodations That a Trial Judge Must Provide to
a Self-Represented Litigant
3-11
What Judges Need Not Do: Instances in Which Judges

Have Been Affirmed for Failing to Make Specific
Accommodations for Self-Represented Litigants
3-13
What Judges Cannot Do: Judicial Actions Deemed

Inconsistent With Judicial Neutrality
3-13
What Judges are Protected from: A Self-Represented

Litigant Will Not Be Allowed to Contest the Propriety
of Judicial Accommodations That He or She Requested
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.
General Principles from California Case Law
A self-represented litigant in California has the right to appear and

conduct his own case. Gray v. Justices Court of Williams Judicial
Township (1937) 18 Cal.App.2d 420 [63 P.2d 1160].
The court has a general duty to treat a person representing himself or
herself in the same manner as a person represented by counsel:
A lay person, who is not indigent, and who exercised the
privilege of trying his own case must expect and receive the
same treatment as if represented by an attorneyno different,
18
This proposal is scheduled to be considered by the American Bar Association at its

Mid-Year Meeting in February 2007.
19
C. Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented
Litigants (Des Moines, IA: American Judicature Society, 2005); Zorza, p. 423;
Albrecht et al., p. 16; Minnesota Proposed Protocol to Be Used by Judicial Officers
During Hearings Involving Pro Se Litigants (reprinted in Albrecht et al.).
3-3
no better, and no worse. Taylor v. Bell (1971) 21 Cal.App.3d

1002, 1009 [98 Cal.Rptr. 855].20
This principles application is straightforward and obvious as it applies
to the basic substantive legal principles governing the right to legal
relief. The elements required to obtain a judgment and the burden of
proof are the same for a self-represented litigant as for a litigant
represented by counsel. All persons are equal in the eyes of the law.
California case law also applies the principle of same treatment to the
rules of evidence and procedure:
A litigant has a right to act as his own attorney . . . but, in so
doing, should be restricted to the same rules of evidence and
procedure as is required of those qualified to practice law before
our courts; otherwise ignorance is unjustly rewarded. Doran v.
Dreyer (1956) 143 Cal.App.2d 289, 290, 299 [P.2d 6611].
This rules application is also straightforwardin part. Inadmissible
evidence cannot serve as the basis for awarding relief to a selfrepresented litigant, and a self-represented litigant must follow the
requirements of the rules of procedure.
However, there are also four21 important related principles that
California trial judges must also take into account.
The first is the judiciarys preference to resolve matters on their merits
rather than by procedural default.
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
It has always been the policy of the courts in California to resolve

a dispute on the merits of the case rather than allowing a
dismissal on technicality. Harding v. Collazo (1986) 177
Cal.App.3d 1044, 1061 [223 Cal.Rptr. 329] (Acting P.J. Liu,
dissenting).
The trial of a law suit is not a game where the spoils of victory go
to the clever and technical regardless of the merits, but a
method devised by a civilized society to settle peaceably and
justly disputes between litigants. The rules of the contest are not
an end in themselves. Simon v. City and County of San Francisco
(1947) 79 Cal.App.2d 590, 600 [180 P2d.398], cited by Adams
v. Murakami (1991) 54 Cal.3d 105,120.
This principle requires the judge not to allow procedural irregularities
to serve as the basis for precluding a self-represented litigant from
presenting relevant evidence or presenting a potentially valid defense.
The second is the trial judges duty to avoid a miscarriage of justice.
The trial judge has a duty to see that a miscarriage of justice
does not occur through inadvertence. Lombardi v. Citizens Nat.
Trust & Sav. Bank (1951) 137 Cal App.2d 206, 209, [289 P.2d
8231].
In the United States we have what is often called an adversarial
system of justice. . . . However, because it is adversarialas
distinct from inquisitorialit is sometimes easy to forget that
the purpose of the system is not to hold a contest for its own
sake. The purpose of our system of justice is still, in Justice
Traynors phrase, the orderly ascertainment of the truth (Jones
v. Superior Court (1962) 58 Cal.2d 56, 60 . . .) and the
application of the law to that truth. Just because a court must
rely on fallible litigants to present competent evidence does not
vitiate the fundamental purpose of the proceeding, which is most
assuredly not to have a contest but to establish what actually
happened. The adversarial system works not because it is a
contest to see who has the cleverest lawyer but because allowing
two or more sides to present evidence to a neutral decision
maker is an epistemologically sophisticated way to get at the
truth. And while certain aspects of the law, namely the fact that
there are fixed rules and outcomes, allow it to be analogized to a
game, it is most definitely not a spectator sport. . . .
3-5
The third is that treatment equal to that of a represented party

requires the court to make sure that verbal instructions given in court
and written notices are clear and understandable by a layperson.
Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [111 Cal.
Rptr.2d 439, 445]. The court explained this requirement in the
following paragraph of its opinion:
There is no reason that a judge cannot take affirmative steps
for example, spending a few minutes editing a letter or minute
order from the courtto make sure any communication from the
court is clear and understandable, and does not require
translation into normal-speak. . . . Judges should recognize that
a pro per litigant may be prone to misunderstanding court
requirements or ordersthat happens enough with lawyersand
take at least some care to assure their orders are plain and
understandable. Unfortunately, the careless use of jargon may
have the effect, as in the case before us, of misleading a pro per
litigant. The ultimate result is not only a miscarriage of justice,
but the undermining of confidence in the judicial system. Id. at
1285, pp. 445446.
The fourth is that the same treatment principle does not prevent trial
judges from providing assistance to self-represented litigants to enable
them to comply with the rules of evidence and procedure.
In Monastero v. Los Angeles Transit Company (1955) 131 Cal.App.2d
156 [280 P.2d 187], the trial judge labored long and patiently to
convince plaintiff of the folly of conducting a jury case in person, she
being untrained in the law. He offered to arrange a continuance in
order to enable her to get an attorney for the trial but she was
insistent upon her right to represent herself. At the close of the
testimony (during which the plaintiff thoroughly discredited her own
case), the judge ordered opposing counsel to hand to Miss Monastero
instructions that ordinarily would be requested in conjunction with
matters of this kind. According to the Court of Appeal, the judge
continued throughout the trial to assist plaintiff in the presentation of
her case, guiding her as to peremptory challenges, assisting her in
examining jurors as to cause for challenge, advising her of the right to
examine [the defendant], advising efforts to compromise, emphasizing
the duty of defendant to exercise the highest degree of care and
carefully scrutinizing all proffered instructions. On appeal from the
courts judgment rendered on the basis of the jurys verdict in favor of
the defendant, plaintiff (at this point represented by counsel) contested
3-6
the propriety of the courts requiring defendants attorney to assist

plaintiff in preparing instructions.
The Court of Appeal held that plaintiff was in no way prejudiced by the
manner in which the instructions were prepared, the appellate court
noting that the trial judge prepared and gave two additional
instructions on his own motion, both of which were intended to clarify
the plaintiffs rights. The Court of Appeal did not find fault with the
courts extensive assistance to the plaintiff. Rather, it refers to those
efforts with approval, calling the plaintiffs arguments on appeal that
the court had erred in requiring defendants counsel to assist the
plaintiff as startling.
California appellate courts often recite the principal of same treatment
in affirming a trial judges discretionary decisions not to provide
specific assistance. However, the courts in the same opinions recite,
with apparent approval, the steps the trial judge did take to
accommodate the special needs of the self-represented litigant
treating him or her differently than the court would have, or did, treat
a party represented by counsel. The cases are summarized below.
III. A Summary of the General State of the Law

California appellate decisions and disciplinary actions can therefore be
summarized as follows:
1.
The trial judge has broad discretion to adjust procedures to

make sure a self-represented litigant can be heard, or to
refuse to make such adjustment.
2.
The judge will always be affirmed if he or she makes these

adjustments without prejudicing the rights of the opposing
party to have the case decided on the facts and the law.
3.
The judge will usually be affirmed if he or she refuses to

make a specific adjustment, unless such refusal is
manifestly unreasonable and unfair.
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.
IV. The Current Boundaries of Judicial Discretion

Established by California Appellate and Disciplinary
Decisions
A.
What Judges Can Do
Listed below are actions of trial judges assisting self-represented

litigants upheld on appeal and additional actions recited in appellate
opinions with apparent approval.
Liberally construing documents filed
California courts generally construe filings in the manner most
favorable to self-represented litigants and overlook technical mistakes
they may make in pleading.
In Nelson v. Gaunt (1981) 125 Cal.App.3d 623 [178 Cal.Rptr. 167],
the Court of Appeal noted that the appellant erroneously stated that he
appealed from the verdict and notice of entry of judgment. The court
construed the appeal from the notice of entry of judgment as taken
from the judgment and dismissed the purported appeal from the
verdict.22
In Rappleyea v. Campbell (1994) 8 Cal.4th 975, 884 P.2d 126 [35
Cal.Rptr.2d 669], the Supreme Court ruled that the trial court erred in
refusing to vacate a default judgment when shown that the clerk of the
court had given self-represented defendants who lived out-of-state
erroneous information about the required filing fee, leading to rejection
of a timely filed answer. The defendants had filed a motion for relief
from default before the default judgment was entered.
In Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [111
Cal.Rptr.2d 439, 445], the Court of Appeal reversed the trial courts
refusal to vacate its dismissal of the complaint, finding that the court
abused its discretion in not providing the self-represented litigantwho
22
Nelson, supra, 125 Cal.App.3d at p. 629, fn. 1.
3-8
lived in South Dakota, who was permanently disabled from an accident

that shattered a disk in her neck, and whose attorney had withdrawn
from the casea further opportunity to prosecute her case despite her
procedural defaults, which appeared to arise from her
misunderstanding of court correspondence and court procedures.
In Baske v. Burke (1981) 125 Cal.App.3d 38 [177 Cal.Rptr. 794], the
self-represented defendant sent several handwritten letters to the clerk
of the superior court. Though the letters contained statements
sufficient to constitute an answer to the complaint, the clerk merely
placed them in the court record without bringing them to the judges
attention. Even though the defendants motion to set aside the default
judgment was filed over six months after entry of the judgment, the
trial court granted the motion to set aside. The Court of Appeal
affirmed that decision, ruling that the clerks failure constituted
extrinsic mistake providing a ground for the trial court to vacate the
judgment.
Allowing liberal opportunity to amend
In Harding v. Collazo, supra, the Court of Appeal noted with apparent
approval the courts giving a self-represented litigant multiple
opportunities to amend his complaint to state facts sufficient to
constitute a valid claim for relief.
Assisting the parties to settle the case
In Monastero v. Los Angeles Transit Company, supra, the Court of
Appeal noted with apparent approval the trial courts advising the
parties on efforts to compromise the case.
Granting a continuance sua sponte on behalf of the self-represented
litigant
Appeal noted with apparent approval the trial courts granting a
continuance to allow the self-represented litigant an opportunity to
obtain counsel. In Taylor v. Bell, supra, the Court of Appeal affirmed
the trial courts sua sponte vacating the submission of a case following
trial and setting the matter for further hearing to allow the selfrepresented litigant to call a witness.
Explaining how to subpoena witnesses
3-9
In Taylor v. Bell, supra, the Court of Appeal noted with apparent

approval the trial courts advising the self-represented litigant of her
right to subpoena witnesses.
Explaining how to question jurors and exercise peremptory challenges
and challenges for cause
Appeal noted with apparent approval the trial courts instructing the
self-represented litigant about the use of peremptory challenges and
the examination of potential jurors to identify cause for challenges.
Explaining the legal elements required to obtain relief
In Pete v. Henderson, supra note 3, in a portion of its opinion not
disapproved by the Supreme Court, the Court of Appeal noted that
one of the chief objects subserved by a motion for nonsuit is to point
out the oversights and defects in plaintiffs proofs, so he can supply if
possible the specified deficiencies. (P. 491.)
Explaining how to introduce evidence
In Lombardi v. Citizens National Trust and Savings Bank of Los
Angeles, supra, the Court of Appeal expressed approval of the
customary practice of the trial judges making suggestions to assist a
self-represented litigant in the introduction of evidence. In Nelson v.
Gaunt, supra, the Court of Appeal noted with apparent approval the
trial judges explaining the proper procedure for admission of evidence,
in the jurys presence. The trial judge in that case also met with the
self-represented litigant and opposing counsel each day prior to the
seating of the jury to discuss anticipated testimony and evidence, and
any objections that might be appropriate.
Explaining how to object to the introduction of evidence
In Nelson v. Gaunt, supra, the Court of Appeal noted with apparent
approval the trial judges explaining the proper procedure for objecting
to opposing counsels introduction of evidence.
Explaining the right to cross-examine witnesses presented by the
opposing party
3-10

Appeal noted with apparent approval the trial courts advising the selfrepresented litigant about her right to question opposing witnesses.
Calling witnesses and asking questions of them
In Taylor v. Bell, supra, the Court of Appeal noted with apparent
approval the trial judges calling the self-represented litigant as a
witness and posing questions to her.
Sua sponte admonishing the jury on behalf of a self-represented
litigant to disregard statements of witnesses
In Nelson v. Gaunt, supra, the Court of Appeal noted with apparent
approval the trial judges sua sponte admonitions to the jury.
Preparing jury instructions for a self-represented litigant or requiring
opposing counsel to do so
Appeal noted with apparent approval the trial courts preparation of
instructions for the self-represented litigant. It explicitly affirmed the
trial courts requiring opposing counsel to provide the litigant with the
jury instructions that would usually be submitted by the plaintiff.
B.
What Judges Are Required to Do: Procedural
Accommodations That a Trial Judge Must Provide to a SelfRepresented Litigant
The federal courts and some state courts recognize affirmative duties
on the part of trial judges to accommodate the needs of selfrepresented litigants, such as a duty to inform a litigant how to
respond to a motion for summary judgment. Hudson v. Hardy (D.C.
Circuit 1968) 412 F.2d 1091; Breck v. Ulmer (Alaska 1987) 745 P.2d
66.23
23
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
Californias appellate courts have not, with the exception of Ross v.

Figueroa discussed below, articulated any such affirmative duties. They
have considered all such actions to fall within the trial judges
discretion and have consistently affirmed a trial judges refusal to
exercise such discretion to provide assistance to a self-represented
litigant in the courtroom.
In Ross v. Figueroa (2006) 139 Cal.App.4th 856; 43 Cal. Rptr. 3d 289,
the Court of Appeal articulated an affirmative duty of accommodation
advice from the judge of the litigants right to present oral testimony
in narrow circumstances arising in a domestic violence proceeding.
After his request for continuance had been denied and it was
revealed Figueroa had a written statement but had not served it
on Ross, he asked the referee if he nevertheless could present
this evidence. The referee merely answered no, and proceeded
to rule, granting a permanent injunction for the maximum period
of three years.
At that point, especially in a proceeding largely used by pro pers
and in which Figueroa was in fact participating on a pro per
basis, the referee should have advised Figueroa he could provide
oral testimony, even though he would not be permitted to file the
written statement he had failed to timely serve on Ross. It is true
Figueroa had mentioned his witnesses were not present and thus
he was in no position to offer their oral testimony. But he
certainly could have testified himself and raised questions to be
posed to Ross, had the referee advised him of his right to do so.
The role of a judicial officer sitting in such a court, which has
many attributes of an inquisitorial as opposed to an adversarial
process, is different than when sitting in a purely adversarial
court where the parties are presumed to be well counseled by
skilled and knowledgeable lawyers.
In a purely adversarial setting it is reasonable for the judge to sit
back and expect a partys lawyer to know about and either assert
or by silence forfeit even the most fundamental of the partys
constitutional and statutory procedural rights. But not so in a
subsequent such motions) and give the litigant the opportunity to withdraw or
amend the motion. In Pliler the Court held that a federal district judge does not have
a duty to inform a habeas corpus petitioner of all the options available before
dismissing a petition that included both exhausted and unexhausted claims (claims in
which the petitioner had and had not exhausted all available state court remedies).
3-12
judicial forum, such as this domestic violence court, which can

expect most of those appearing before the court to be
unrepresented. . . . Accordingly, here it was incumbent on the
referee to apprise Figueroa it was his right to present oral
testimony when Figueroa indicated he wanted to put on a
defense by asking whether he could tender the written evidence
he had prepared but not served. Ross v. Figueroa (2006) 139
Cal.App.4th 856; 866 (footnotes deleted).
C.
What Judges Need Not Do: Instances in Which Judges

Have Been Affirmed for Failing to Make Specific
Accommodations for Self-Represented Litigants
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
office for their denial of the rights of unrepresented litigants appearing

before them.
In Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d
297, 787 P.2d 591 [267 Cal.Rptr. 293], the Supreme Court removed a
judge from office for, among other things, rudeness to pro per litigants
in criminal cases.
In McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d
512, 526 P.2d 268 [116 Cal.Rptr. 260], the court censured a judge for,
among other things, bullying and badgering pro per criminal
defendants.
In Inquiry Concerning Judge Fred L. Heene, Jr., No. 153 (Commission
on Judicial Performance 1999), the commission censured a judge for,
among other things, not allowing an unrepresented defendant in a
traffic case to cross-examine the police officer and failing, in several
cases, to respect the rights of unrepresented litigants.
In Inquiry Concerning a Judge, No. 133 (Commission on Judicial
Performance 1996), the commission censured a judge for, among
other things, pressuring self-represented litigants to plead guilty,
penalizing a self-represented litigant who exercised his right to trial,
and conducting a demeaning examination of an unrepresented litigant.
A trial judge may not deny the parties their procedural due process
rights by preempting their ability to present their case. In Inquiry
Concerning Judge Howard R. Boardman, No. 145 (Commission on
Judicial Performance 1999), the commission concluded that Judge
Boardman committed willful misconduct by depriving the parties of
their procedural rights in King v. Wood. The case, filed by a selfrepresented litigant, involved a quiet title action concerning a home.
The counsel for the opposing party was trying his first case. Judge
Boardman called the case for trial and, telling the parties that he was
proceeding off the record and without swearing the parties, asked
them to tell him what the case was about. The self-represented litigant
spoke, followed by the lawyers opening statement and his clients
statement. The judge alternated asking the parties questions. He
reviewed documents presented to him. After asking if either party had
anything else to add, he announced that he was taking the case under
submission and asked the attorney to prepare a statement of decision
and judgment, which the judge later signed. The commission
concluded that Judge Boardman, on his own initiative and without
notice to or consent by the parties, followed an alternative order in a
3-15
misplaced effort to conserve judicial resources. It noted that the

parties were denied their rights to present and cross-examine
witnesses and to present evidence.
E.
What Judges are Protected from: A Self-Represented

Litigant Will Not Be Allowed to Contest the Propriety of
Judicial Accommodations That He or She Requested
In a criminal case, People v. Morgan (1956) 140 Cal.App.2d 796, 296

P.2d 75, the trial court ruled that only the judgment and stay of
execution from the court file related to a prior conviction would be
admitted into evidence. The defendant then moved to introduce the
entire file into evidence. The judge advised him that there are matters
in that file that are very detrimental to you. The defendant
nonetheless insisted that the entire file be introduced into evidence.
The court did so. On appeal, the defendant claimed that admission of
the entire file was reversible error. The Court of Appeal quoted People
v. Clark:24
But by electing to appear in propria persona a defendant cannot
secure material advantages denied to other litigants. Certainly
one appearing in propria persona cannot consent at the trial to
the introduction of evidence, after first introducing the subject
matter himself, and thus invite the introduction of evidence to
rebut the inference he was trying to create, and then be
permitted on appeal to complain that his invitation was accepted.
Note that the Court of Appeal did not criticize the judges advice to the
defendant that the file contained information detrimental to his case.
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
122 Cal.App.2d 342, 349, 265 P.2d 43.
3-16
Chapter 4: Solutions for Evidentiary Challenges

Introduction
I.
4-1
Admit Evidence Where Appropriate, Fair, and

Consistent With the Law
4-1
II.
Admissibility and Weight
4-2
III.
The Formal General Rules of Evidence
4-3
IV.
A.
Evidence Admitted Without Objection
4-4
B.
Much Evidence Is Self-Admitting
4-4
C.
A Judge Can Make Material Objection
4-5
D.
Foundational Weight and Admissibility of Evidence
4-5
E.
Weight and Credibility Are for the Fact-Finder
4-5
F.
On Appeal, Judges Are Generally Assumed to Have

Known and Correctly Followed the Law
4-5
These Principles Give Judges Great Discretion
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.
To hear as much as appropriately possible about the case

to reach a just and reliable outcome;25
2.
To do so in a way that is consistent with the law; and
3.
To do so in a way that is fair and is seen by the public as

fair and as the product of a fair process.
Admissibility and Weight
These goals require that the following take place:

1.
As much evidence as possible should be heard, provided

that evidence is appropriate;
2.
Evidence is not appropriate, that is, should not be

considered, if it is not reliable, in the sense that it should
not be given any weight;26
3.
Evidence may not also be appropriate, and therefore not

considered, because of other policy goals.27 Generally,
receipt of such evidence notwithstanding its being subject
to exclusion is less harmful than in circumstances in which
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
exclusion relates to reliability (although to admit it over

objection would be directly inconsistent with the rules of
evidence);28
4.
The fact-finder needs to have enough information to be

able to decide the reliability and weight of each bit of
evidence;29 and
5.
The processes must be consistent with the rules of

evidence and procedure.
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.
III. The Formal General Rules of Evidence

At first glance, it might appear that for a judge to meet the fact-finding
goals described above would be difficult, particularly given the
complexity of the rules of evidence.
However, as a practical matter, as the detailed analysis below shows,
the general rules for the taking of evidence make the task much easier
and, in fact, render most of the specific and hypertechnical rules
largely irrelevant in day-to-day practice.
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
Moreover, to the extent that the technical rules do constrain judges in

self-represented litigant cases, this constraint is usually very much in
the direction of commonsense notions governing the weight to be
given to the evidence.
A.
Evidence Admitted Without Objection
If evidence offered by a self-represented litigant is not objected to,

that evidence generally comes in for all purposes.30 Given that most
self-represented litigants do not object, at least in the formal terms
that objections require, most evidence is admissible and may be given
such weight as the judge deems appropriate. The exceptions to this
rule of admission without objection tend not to be technical rules but to
deal with individual instances of very limited and obvious areas of
highly prejudicial evidence.
B.
Much Evidence Is Self-Admitting
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.
A Judge Can Make Material Objection
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.
Foundational Weight and Admissibility of Evidence
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.
Weight and Credibility Are for the Fact-Finder
Unless clearly barred, most evidence is admissible in these

circumstances.36 Moreover, weight and credibility are for the factfinder, which in self-represented litigant cases is usually the judge.
F.
On Appeal, Judges Are Generally Assumed to Have Known
and Correctly Followed the Law
In an appeal, the burden is on the appellant to show that the trial
judge was in error, and the burden is on the losing party to make sure
that the record shows that error.
35
Witkin, supra, 393 (exclusion on judges own motion of questions or underlying

matter); Davey v. Southern Pacific Co. (1897) 116 CA 325, 330, 48 P 117; Kimic v.
San JoseLos Gatos Interurban Ry Co (1909) 156 CA 379, 390.
36
Evid. Code, 350 (No evidence is admissible except relevant evidence.); 351
(Except as otherwise provided by statute, all relevant evidence is admissible.);
210 (Relevant evidence means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the
action); Jeffersons California Benchbook (3rd ed., 1997) vol. 1, p. 298, 21.16;
People v. Hill (1992) 3 CA 4th 959, 987.
4-5
For example, if evidence is admissible only for a limited purpose, the

judge will be assumed to know this, and to have followed the rule,
even if there was a general objection to the evidence. In other words,
a judge will not be found to be in error for failing to exclude such
evidence, provided it can be admitted for some purpose.
IV. These Principles Give Judges Great Discretion

Generally, it is totally proper for judges to find out all they need to
about the evidence that is offered, to then admit it or not admit it, and
to give it the weight they feel it deserves.
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
Chapter 5: Caseflow Management

Introduction
5-1
I.
Caseflow Management Depends on Effective Systems
5-1
II.
Assistance to Self-Represented Litigants
5-3
III.
Calendar Management
5-5
A.
The Court Should Determine the Pace
5-5
B.
Controlling Calendar Size
5-5
C.
Effective CalendaringSpecialized Calendars
5-6
D.
Minimizing the Number of Appearances in Each Case

Reducing Unnecessary Continuances
5-7
Marshaling Court and Community Resources
5-8
E.
IV.
Facilities and Technology
5-11
A.
Courtroom Facilities
5-11
B.
Technology
5-12
Staffing Issues
5-13
V.
A.
Self-Help Assistance in the Courtroom
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
judges and courtroom staff must be incorporated throughout the

development of such systems.
Some examples of the types of systemic caseflow management issues
important for judges to consider are the following:
1.
Court-based assistance for self-represented litigants;
2.
Calendar management;
3.
Docket control;
4.
Reduction of unnecessary continuances;
5.
Facilities and technology;
6.
Staffing;
7.
Continuing education;
8.
Creating opportunities for early comprehensive dispute

resolution;
9.
Creating procedural uniformity throughout the court; and
10.
Developing mechanisms to serve litigants needing an

interpreter or accommodations to deal with disabilities.
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
also helpful to set up a system of communication with legal services

and other agencies who frequent the court or whose client population
appears often. For example, a domestic violence clinic may have input
about how existing systems are affecting their clients and have ideas
for improvement. Community-based providers, especially in immigrant
communities, may have valuable feedback from their clients about
barriers.
II.
Assistance to Self-Represented Litigants
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.
Family Law Facilitator Program. This program provides

for an attorney in each of Californias 58 counties to
provide information and education to self-represented
litigants in Title IV-D cases on issues of child support and
health insurance. Many courts have provided additional
funding for these programs so that assistance is available
for a wide array of family law matters including child
custody, visitation, dissolution, and domestic violence.
2.
Self-Help Centers. Other court-based self-help centers

have been implemented to provide assistance to selfrepresented litigants in family law as well as in probate
matters such as guardianship, conservatorship, and small
estates and other areas of civil litigation including
landlord/tenant, civil harassment, consumer issues, and
small claims. Some provide assistance with traffic matters
and expungement of criminal records.
3.
The California Courts Online Self-Help Center. This

Web site (www.courtinfo.ca.gov/selfhelp) provides a great
deal of information for litigants able and willing to go online
to access it. The entire site has also been translated into
5-3
Spanish (www.sucorte.ca.gov). Courts often publish their

local rules, forms and additional information on their court
Web site.
4.
Pamphlets and Checklists. Most courts find it necessary

to supplement the electronic information with printed
pamphlets or checklists available at the courthouse
(typically in the self-help center or facilitators office).
Some courts go further, actually handing summary
information packets, or letters from the presiding or
supervising judge, to litigants at the time of filing of every
new complaint or petition.37
A typical checklist might include information about the following:

1.
Service of process;
2.
Filing an answer or response;
3.
Alternative dispute resolution processes available;
4.
Disclosure requirements and discovery options;
5.
Obtaining a default judgment;
6.
Filing motions;
7.
Requesting hearing or trial settings; and
8.
Special requirements for particular case types, such as

mandatory parenting courses and mandatory mediation of
contested child custody and visitation matters.
Some courts require the plaintiff or petitioner to provide a copy of the

packet or checklist to the opposing party as part of the service of
process.
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
III. Calendar Management

A.
The Court Should Determine the Pace
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.
Controlling Calendar Size
Docket size in calendars with large numbers of self-represented

litigants should be restricted to a reasonable number of matters,
allowing litigants the time and opportunity to present their cases to the
judge. Calendars in departments with high numbers of self-represented
litigants tend to be too crowded. A careful workload analysis should be
conducted to determine the actual workload for courtrooms handling
such cases and to set a reasonable cap on the size of the dockets. This
38
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
should also recognize the amount of additional time required when an

interpreter is needed for one party, and even more when both parties
require an interpreter.
Setting a cap should not lead to longer waiting times for hearings but
point to the need for additional judicial resources for the selfrepresented workload. While effective case management techniques
such as the use of a differentiated calendar system (as discussed
below) can help with efficiency and reduce stress on judges and
courtroom personnel, an evaluation of reasonable workload levels and
appropriate allocation of judicial and other resources is critical.
Inequitable distribution of workload among judges leads to high levels
of stress in certain assignments and characterization of those
assignments as undesirable and of low status in the judicial hierarchy.
C.
Effective CalendaringSpecialized Calendars
Organizing calendar settings so that like matters are heard together

can improve efficiency because it allows focusing of resources and
more accurate estimating of time needed.
This form of calendar organization makes it much easier to establish
appropriate calendar size according to the issues to be heard, and it
can reduce the stress on judges by making each calendar more
predictable. This calendar strategy clusters cases with similar or limited
issues together for hearings.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Self-represented litigant calendars;

Traffic calendars clustered by type of ticket and fine;
Default calendar;
Domestic violence hearings with child-related issues;
Domestic violence hearings without children involved;
Motions related to custody/visitation only;
Motions with child support issues only;
Law and motion calendars for jurisdictional and other
matters; and
Review hearings.
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.
Complete and accurate paperwork;
2.
Adequate supporting documentation;
3.
Knowledge of the kind of information the judge needs to

hear; and
4.
Greater ability to focus on relevant issues during the

hearing.
Marshaling Court and Community Resources
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.
Self-help center staff;
39
Judicial Council of California/Administrative Office of the Court, A Report to the

California Legislature: Family Law Information Centers: An Evaluation of Three Pilot
Programs (March 1, 2003).
5-8
2.
Family court facilitator(s);
3.
Family court services mediators prepared to conduct same

day or emergency mediation sessions;
4.
Clerks office staff;
5.
Legal services attorneys and staff;
6.
Volunteer attorneys;
7.
Volunteer private mediators;
8.
Volunteer forensic accountants;
9.
Law professors and volunteer law students from a local law

school clinic;
10.
Court interpreter(s);
11.
Student interpreters from a local university interpreter

certification program;
12.
High school and college student volunteers;
13.
Community volunteers (including retired persons);
14.
Parental abduction attorneys;
15.
Domestic violence restraining order advocate(s);
16.
Drug treatment program staff;
17.
Domestic violence program staff;
18.
Supervised visitation program staff;
19.
Guardianship clinic staff; and
20.
Child Protective Services liaisons.
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
parties; and write up agreements for presentation in court. Some

judges ask some of their staff to be present in the courtroom for
calendars involving large numbers of self-represented litigants.
The following report from a family law judge in a small county
underscores the importance of adequate resource support.
I have found that now that I have enough people helping me in the
family law department, I really dont have any serious case
management issues.
We have the following people who either are in court or will
immediately respond: two clerks, a parental abduction attorney, two
mediators, the facilitator, the domestic violence restraining order
advocates, and a court staff member who acts as a resource
specialist and handles any orders or filings that are not taken care of
by the domestic violence advocates or the facilitator.
We have further help in managing the pro per litigants from the
Domestic Violence Clinic attorneys from the law school, Unified
Family Court therapists, the Family Court Childrens Fund, the family
resource center for supervised visitation, a volunteer panel of
experienced family law attorneys for settlement conferences, a CPS
immediate response contact, and the Guardianship Clinic. We also
have the Unified Family Court manager and the Unified Family Court
clerks who prepare the Yellow File so that we know all the facts
about the parties present in court.
This direct assistance can also be extremely rewarding to the

volunteers who participate in these calendars, as they are time-limited,
discrete services with the opportunity to see immediate benefits.
5-10
Volunteer work for the court balances what we do as professionals

in our private practices and brings more than a modicum of
satisfaction. There is nothing more gratifying than unknotting a
technical question that allows a pro per litigant to get the
dissolution done there and then. This contrasts with the
complicated legal issues and complicated legal personalities that
we have to grapple with day in and day out in our private
practices. I would do it every month for the court if it were
possible. It keeps me sane!
Pro bono attorney on self-represented litigant calendar
IV. Facilities and Technology

A.
Courtroom Facilities
A courtroom should be able to comfortably hold all the litigants who

appear for hearing on the calendar. Litigants forced to wait in the
hallway may not hear their case called and may thus miss their
hearing. They will also not have the benefit of seeing how it is done
and learning from observing others. Overcrowding detracts from the
publics sense that the court is concerned about litigants legal rights.
It also tends to increase whatever anxiety levels already exist among
the litigants, who are now crowded and uncomfortable in addition to
being nervous about their cases.
If the litigants cannot fit into the courtroom, the judge should bring
this fact to the attention of the court executive officer immediately.
Moreover, an effective self-represented litigant courtroom operation
requires additional courthouse space. If courtroom support staff such
as self-help attorneys, mediators, or volunteers are available to
provide assistance, there must be some place for them to work with
the litigants other than in the hallways, waiting areas, or stairwells.
Some courts have constructed as many as a dozen small conference
rooms immediately adjacent to the courtroom for day-of-appearance
assistance meetings between litigants and resource persons.
5-11
B.
Technology
Courtroom Technology. Courts need access to good technology in

order to operate well. For example, a courtroom should have access to
any electronic data system available and case registry or case
management systems.
Any given calendar can be adversely affected by the breakdown or lack
of necessary technology in a courtroom. Staff preparing orders after
hearings must have easy access to computers and copy machines.
Staff running guideline child support calculations during settlement
discussions with litigants must have access to computers and printers.
Providing staff with appropriate Internet access to legal information,
and to court data needed to ascertain the status of cases, or to identify
related cases, is critical. Lack of simple, effective technology will
seriously impede the courtrooms efficiency.
Beyond the Courtroom. Courts have taken advantage of automation
in many creative ways, including the following:40
1.
Informational Web sites to provide full access to procedural

information.
2.
The EZLegalFile system developed in San Mateo County

and now used in 38 courts to enable self-represented
litigants to create court forms online and print them for
filing or presentation in court. Hot Docs software is being
used by the AOC to provide courts with their own forms
assembly programs.
3.
Word-processing macros for completing standard court

orders and judgments.
4.
Using share drives on which Family Court Services staff

post draft parenting plans so that they are available to the
judge electronically in the event changes are needed in the
plan following a hearing.
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
Caseflow management is made more efficient by thoughtful

consideration of the training and qualities most beneficial for court staff
working most closely with self-represented litigants.
A.
Self-Help Assistance in the Courtroom
Providing this assistance requires significant advance planning,

including the following:
1.
Organization of the staff and volunteers to ensure that

adequate personnel are present, that they have clear
expectations concerning their roles, sufficient training to
perform them competently, and are appropriately
supervised by qualified attorneys;
2.
Development of procedures for self-represented litigant

assistance in cases without a lawyer on either side,
including triaging processes for determining what
assistance is needed and appropriate and when to refer
litigants into the courtroom because further staff effort is
not warranted;
3.
Developing procedures for handling litigants who need

interpreter services or additional assistance;
4.
Refinement of those processes for cases involving one

represented and one unrepresented litigant;
5.
Development of checklists and fillable forms for the use of

litigants and resource people in the assistance process;
6.
Development of a process for litigants to check in, to be

assigned to a staff person or volunteer, and to be taken to
a physical location where they can work on their case with
relative privacy and access to needed computers;
7.
Development of a process for referring cases to the

courtroom when they are ready for bench officer review or
when staff are unable to help the self-represented party or
parties to advance their cases; and
5-13
8.
Development of a process for referring cases from the

courtroom back to the resource staff for posthearing
consultation and document preparation.
It is wonderful to work collaboratively with the courts and

the private bar to develop a system that provides selfrepresented litigants real assistance to finalize their
divorce or paternity cases. Most of these persons do not
need to hire lawyers but are overwhelmed by the legal
forms and procedures. I feel immensely satisfied that we
are helping these people move on with their lives while
giving them a positive look at the court system.
Pro bono attorney volunteer
There needs to be a clear understanding of the critical necessity for the

court to be neutral, thus providing assistance to all litigants and
maintaining the appearance of neutrality in all matters.
B.
Court Staff
Formal education and training programs for court staff should be

established if not already in place, and reviewed if existent for possible
expansion. As clerks, both at the filing window and in the courtroom,
are asked to give self-represented litigants more information, they
should be provided with increased education to expand their base of
legal information.
The demeanor of the courtroom clerk, bailiff/court attendant, court
reporter, and supporting staff and volunteers is important to the
impressions that self-represented litigants receive of the court. The
judge should make it clear to these individuals that they are expected
to treat litigants with dignity and respect. Joking between judges,
clerks, and, indeed, any staff about the litigants during breaks or at
other times should be discouraged. Staff joking or being familiar with
attorneys may create the impression that they have an inside track or
access to the court that the self-represented litigant lacks. Such
conduct contributes to a culture of discourtesy and all too easily
escalates to the level of an impermissible ex parte communication. Just
as the staff rightfully expects that the judge will protect them from
5-14
abusive behavior by the public, so do the litigants have a right to

expect respectful treatment from the judges staff.
Of equal importance is the ability of the staff to set boundaries with the
litigants, and to do so without being rude or dismissive. If a courtroom
clerk is rude to litigants, for example, before the judge takes the
bench, a judge will encounter an unnecessarily hostile courtroom
environment that he or she must then overcome during the
proceedings.
Courtrooms with large numbers of self-represented litigants benefit
from experienced staff confident in their skills. Patience and a sense of
humor are also genuinely helpful.
VI. Judicial Education

One way to assist judges in feeling comfortable and being effective in
the courtroom is to provide appropriate judicial education. Knowledge
of the law relevant to their assignment is absolutely critical for judges
in assignments with high percentages of self-represented litigants.
Without attorneys to brief or present the legal issues, judges must be
aware of applicable legal arguments and do their own research. In
many cases, departments with large numbers of self-represented
litigants have heavy dockets and do not have research attorney
resources allocated to them. It is up to the judge not just to know the
law but to be able to apply it quickly and accurately.
Previous subject matter experience on the bench or in law practice is
an enormous benefit for a judge handling cases with self-represented
litigants, but assigning a judge with prior expertise is not always
possible. Some ways to provide support for judges include mentor
judges, both official and unofficial.
A.
Mentor Judges
Official mentors. To help new judges adjust to their roles as judicial

officers, many courts provide them with official mentor judges.
Certainly, part of that mentoring should include assistance with
referrals to educational resources in the subject area of a new judges
assignmentparticularly when it requires working with large numbers
of self-represented litigants.
5-15
Unofficial mentors. It is also highly beneficial for judges to have their

own unofficial mentor judges who are simply colleagues they know and
trust to provide them with good counsel on various professional topics.
Talking with a judge who previously held the assignment or a colleague
currently handling the same types of cases in another department, or
even in a similar-sized county, can help relieve isolation and increase
subject matter expertise.
Lists of expert judges. As part of a regular bench orientation, some
courts have published a list of areas of expertise of the members of the
bench so that a new judge may call on a colleague with specialized
knowledge.
B.
Court-Employed Attorneys
Research attorneys. Research attorneys are an excellent resource for

judges in assignments with high percentages of self-represented
litigants. This is a rational allocation of resources, given the size of the
dockets in many of these departments.
C.
Continuing Education
In addition to new judges orientation, California, as do most states,

provides continuing education for judges. Continuing education is
particularly important because it addresses more complex substantive
law matters. Continuing education for the bar programs can be very
helpful, as are national programs such as those given by the National
Judicial College or the National Council of Juvenile and Family Court
Judges. Conferences and nonjudicial meetings held by associations of
professionals affiliated with the court often welcome participation by
judicial officers who wish to develop expertise.
Many judges find online resources including benchguides and online
classes extremely helpful. They can easily get access to the materials
and often can find critical resources quickly. The National Center for
State Courts has compiled a list of online judicial education resources
at http://www.ncsconline.org/WC/FAQs/JudEduFAQ.htm.
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
Chapter 6: Courtroom and Hearing Management

Introduction
6-1
I.
6-1
Preparation for Hearings

A.
File Review
6-1
B.
Staff-Conducted Readiness Reviews
6-2
II.
Check-In Procedure
6-4
III.
Setting the Tone of the Courtroom
6-5
IV.
Roll Calls
6-6
V.
Organizing the Cases on a Calendar
6-8
A.
Dropping CasesNo Appearance
6-8
B.
Moving Party AppearsNo Valid Service
6-9
C.
Continuance Required
6-9
VI.
Referrals to Court and Volunteer Support Staff
6-10
A.
Courtroom Self-Help Attorneys
6-10
B.
Child Custody Mediators
6-11
C.
Volunteers
6-12
VII.
Cases Requiring Hearings
6-12
A.
Default Hearings
6-12
B.
Organizing Contested Hearings
6-13
VIII. Dealing With General Hearing Issues
6-14
A.
Avoiding Dropping Issues
6-14
B.
Getting Needed Information
6-15
C.
Answering Litigants Questions
6-18
D.
Identifying Elevated Anxiety Levels of Litigants
6-19
E.
Ruling From the Bench
6-20
F.
Providing Written Orders
6-21
IX.
Contested Hearings Involving Two Self-Represented

Litigants
X.
6-21
Contested Hearings Involving One Represented Litigant and

One Self-Represented Litigant
6-24
A.
Proceeding As If the Case Involved Two Self-Represented

Litigants
6-24
B.
Asking the Self-Represented Litigant to Present His or

Her Case in a Structured Fashion
6-24
C.
Controlling the Courtroom
6-25
D.
Announcing the Ruling and Preparing a Written Order or

Judgment
6-26
XI.
Scripts and Helpful Phrases for Developing Courtroom

Styles
6-26
A.
Sample Preliminary Instructions
6-27
B.
Sample Basic Rules for Evidence Presentation
6-27
C.
Sample List of Elements to Be Proved
6-28
D.
Sample Questions to Elicit Critical Information
6-28
E.
Sample Questions to Establish the Foundational

Requirements for Documents and Photographs
6-29
Sample Questions to Establish the Admissibility of

Hearsay
6-30
Sample Approach to Swearing Both Parties
6-30
F.
G.
H.
Sample Setting of Ground Rules When One Party Is

Represented
6-30
I.
Sample Response to a Resistant Attorney
6-30
J.
Some Generally Helpful Phrases
6-31
K.
Some Sample Nonconfrontational Questions
6-31
L.
Some Ways to Control the Interrupter
6-32
M.
Ways to Recognize and Validate the Litigant
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.
Preparation for Hearings
Cases involving self-represented litigants benefit from prehearing

preparationboth by the judges staff and by the judge personally.
A.
File Review
Prehearing review of case files greatly facilitates the efficient and

effective flow of cases through the calendar. File reviews, however, can
also waste a judges time when the cases reviewed do not proceed to
hearing as initially scheduled. The use of support staff to assess files
for readiness (see the next section on staff-conducted readiness
reviews) a day or two before scheduled hearings can save significant
judicial time. Even when support staff are unavailable to perform this
task, a judge can prioritize which files to review in the greatest detail
according to a readiness review strategy.
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.
Staff-Conducted Readiness Reviews
If possible, staff attorneys or other appropriately trained court staff

should review the files and identify a variety of procedural issues for
the judge. Checklists are good tools for this.41 Identifying cases that
are unlikely to proceed can save the judge time in his or her own file
review and provide guidance for organizing the calendar.
Determining whether cases are ready to proceed will always take place
to some extent at the time of the hearing; however, when files have
been assessed for readiness prior to hearing so that the judge can
begin with good information about the status of pleadings and service
for each case on the calendar, disposition of procedural matters is
expedited and time for hearings is increased.
Below are some examples of issues that, if identified through a
readiness review, can be handled either prior to the hearing date or
quickly at the beginning of a calendar, without investing significant
court or litigant time.
1.
41
No Proof of Service. Cases in which there is no proof of

service, or a defective proof of service, can be identified.
As a general case management rule, cases in which there
are no proofs of service may be those in which neither
party appears for hearing, but this is often not true in
cases involving self-represented litigants. These litigants
often dont know how to file a proof of service that they
have in fact obtained, prior to the hearing, or are unaware
Examples of checklists are included in the appendix to this benchguide.
6-2
of the need to file it in advance. If a proof of service is

produced at the hearing, or both parties appear, the matter
can proceed; thus, it is wise to review the file prior to the
hearing if possible.
2.
Pleading Defects. Cases in which there are defects in the

pleadings sufficient to prevent a hearing can be identified
and brought to the judges attention. For example, a
litigant may have filed a request for relief on the wrong
pleading forms, brought the action against an improper
party, asked for relief on a matter over which the court has
no subject matter jurisdiction within the case at hand, or
asked for a decision on a contested trial issue by filing a
pretrial motion.
When such issues are identified through a readiness review, a judge

can begin the calendar by referring the litigants to the self-help
attorney to educate and assist them. In this way the hearing date will
not be a waste of time for the court or the parties. Alternatively, if no
self-help attorney is available, the judge might call the case at the
beginning of the calendar to explain the problem to the litigants rather
than make them wait for a long time in the courtroom only to hear that
their case will not go forward.
Other procedural problems. Other procedural problems can be
identified by readiness reviews. For example, required documentation
such as proof of income, proof of completion of a previously courtordered service, or failure to complete a prehearing requirement such
as mandated child custody mediation may be missing. A judge may
find that referral to the self-help attorney can solve the problem
sufficiently to proceed with the hearing and avoid the need for a
continuance. If a continuance is required to allow litigants to produce
additional documentation or attend mediation, the case can be called
at the beginning of the calendar and handled without the need to keep
the parties sitting in the courtroom. It may also be possible for the
parties to obtain the needed information from their homes or offices
and return to court for the afternoon calendar.
Readiness reviews can also flag particular issues to which the judge
may want to pay particular attention and obtain more information
before the hearing. The following are examples of such issues:
1.
2.
Evidence of an active juvenile dependency case;

Possible jurisdictional issues;
6-3
3.
4.
5.
6.
7.
Evidence of a venue issue;

Temporary restraining order set to expire according to its
own terms on the day of the hearing;
Existence of other cases with potentially conflicting orders;
Related cases that might be consolidated sua sponte by the
court; and
Indication that one or both parties may not be English
speakers.
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.
Names of the parties (with phonetic pronunciation);

Language or other special needs;
Names of children and their ages;
Case type (family law, juvenile, guardianship, domestic
violence);
List of issues for hearing;
List of documents relating to the issues set for hearing;
Need for interpreter (or other type of accommodation);
Whether responsive papers have been filed;
Case statusnext step to disposition; and
Trafficcode section cited and fine.
Tabbing important documents in the file. Tabbing, color coding, or

otherwise identifying important documents in a case file can prove
helpful during a hearing. This is particularly so in cases with large files
or with motions consisting of multiple forms and supporting
documents.
II.
Check-In Procedure
Noticing litigants to appear 15 to 30 minutes before the judge is to

take the bench gives them time to check in with the clerk or bailiff.
It is important to inform the parties in the hearing of the requirement
for early check-in so that they do not get the impression that the
judge is late in taking the bench.
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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.
III. Setting the Tone of the Courtroom

The judge can set the courtrooms tone as he or she enters and sits
down at the bench. The more relaxed and at ease the judge, the more
relaxed and at ease will be the general tone in the courtroom. That is
not to say that some circumstance might not change this dynamic;
however, the judges power to influence the courtrooms emotional
tone on entering should not be underestimated. As a consequence, the
more well-prepared a judge feels, and the more confidence that he or
she will be well supported by staff inside the courtroom, the more
likely the judges entrance will be calm, self-assured, and friendly. A
judge who can enter the courtroom in a relaxed manner, greet the
staff while also acknowledging the presence of the audience, take
sufficient time to get seated and comfortably organized at the bench,
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and appear genuinely friendly and in charge contributes greatly to the

general calm and comfortableness of a courtroom.
Immediately on taking the bench, a judge may want to briefly greet
the audience in the courtroom as well by saying Good morning or
Good afternoon. A judge may wish to follow by introducing himself or
herself and setting out what will be going on in the courtroom that day.
I explain when I first come out that everyone will get a chance to
talk to me. When people are well mannered, direct, and polite, I am
sure to thank them for such behavior so that the crowd can hear.
Judge
If the litigants are primarily self-represented, many judges find that
scripts explaining how the court works are useful. In some cases, local
or state statute may require some scripts, such as at the beginning of
traffic arraignment calendars. While this sort of information can be
provided in writing or by video, personal communication from a judge
is often far more effective for self-represented litigants. If a video or
written document is used, the judge may want to provide a brief
introduction so that litigants will pay more attention to the information.
Scripts should be as brief as possible, describe how the courtroom will
work, and set forth what is expected of the litigants. The scripts
purpose is to familiarize litigants with the courtroom process and
formal legal tenets so that the calendar can run smoothly, and the
parties can proceed with less anxiety.42
If interpreters are not available at the time that the judge reviews the
script, the judge may want to review some of the key points before a
hearing with a non-English-speaking litigant if an interpreter is
available at that time. The judge may also want to develop a handout
with highlights of the speech in English and other languages frequently
spoken in the community that the clerk can hand out at check-in.
IV. Roll Calls

It is usually ineffective to simply call cases up for hearing in the order
they appear on the calendar. The judge should obtain the information
needed to categorize the cases, to identify and dispose of the matters
42
Sample scripts are included in the appendix to this benchguide.
6-6
that need to be referred elsewhere, to allow counselespecially pro

bono attorneyswith other obligations to attend to them, and to
identify the matters that can be resolved quickly. Failure to obtain this
information can easily lead to frustrating delays for litigants who are
not in serious disagreement or result in stressful time pressures for the
judges at the end of the calendars when faced with heavily contested
matters yet to be heard.
Beginning the calendar with a simple roll call can help organize the
cases effectively. It gives everyone in the courtroom time to settle
down and become somewhat accustomed to the surroundings. The
judge can start by explaining that he or she is simply going to go down
the list of cases that are set for hearing that morning (or afternoon) to
see who is present and get an idea of how best to organize the day.
The judge should explain (1) that the order of cases will not
necessarily determine which case will be heard first, (2) why there are
calendars with different times (many courts create differentiated
calendars by labeling one as 9:00 and another as 9:01), and (3) that
cases on the later calendar may be called before cases on the earlier
calendar.
The litigants might be asked to stand when they hear their case called
and to make their presence known to the judge. The judge would
acknowledge them as they are called and let them know that they
need not come forward but that their case will be handled later, after
the roll call is completed. Given the complexities of pronunciation,
judges should not feel awkward about apologizing for mispronunciation
or other challenges in calling the cases. Sometimes it is even difficult
to know the gender of the litigants. A gracious apology goes a long
way in case of error. At the end of the roll call, the judge may want to
ask anyone present whose name hasnt been called to either identify
themselves or check-in with the clerk to determine if the litigant is in
the wrong courtroom, if there is a difficulty with the schedule, or if the
litigant did not recognize when his or her name was called.
During the roll call, the judge can also ask whether the litigants have
reached any sort of agreements about their cases. Since selfrepresented litigants usually dont know how to prepare a stipulation,
many come to court even if they are in basic agreement.
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As the roll call proceeds, cases tend to organize themselves for the
calendar into the following groupings:
1.
2.
3.
4.
Cases that will not go forward;

Referrals to courtroom support staff;
Cases ready for quick disposition; and
Cases requiring hearings.
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.
Organizing the Cases on a Calendar
Some cases can usually be handled quickly during the roll call.
A.
Dropping CasesNo Appearance
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
I went to the courthouse where I filed my papers, but the judge I

was supposed to see wasnt there. They had an information booth,
but the person there couldnt tell me where to go. At least he said it
might be across the street. Now, Im really late. I go out of the
building, and there are a bunch of buildings across the street.
None of them have signs saying theyre a court. One of them said it
was a county building, so I went in there and asked. At least the
security person could tell me that there were courtrooms on the
third floor. I went up to the third floor and read the sign, but I
couldnt find the room they were talking about because it was
behind another set of doors and there werent any markings there.
By the time I finally got to the courtroom, my heart was pounding
and I was totally stressed. I really thought about forgetting the
whole thing and just going home.
Self-represented litigant
B.
Moving Party AppearsNo Valid Service
If there has been a prehearing readiness assessment, this case may

have been handled prior to hearing. If not, the moving party may claim
to have left a proof of service at home. If so, and if time and distance
permits, then the person might be able to go home and bring the proof
back to the court; in these instances the judge should warn the litigant
that the case will be dropped at the end of the calendar if he or she
has not returned by then. The moving party more likely will assert that
they were unable to serve the responding party, and a new court date
will be required. The judge can refer the party to supporting staff and
volunteer resources for help with understanding service alternatives, or
the judge can engage the parties individually, or in a group, in such a
discussion.
C.
Continuance Required
Continuances might be required for various reasons. In courts where

mediation for child custody is mandated, for example, the required
mediation may not have been completed prior to hearing. Financial
documentation necessary to make guideline child support orders may
be missing.
6-9
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.
VI. Referrals to Court and Volunteer Support Staff

Whenever a judge makes a referral, unless the person to whom the
referral is made is present in the courtroom, the judge should make
use of a referral slip detailing the reason for the referral. This is of
enormous help to the person to whom the referral is made because the
self-represented litigant can completely misunderstand or fail to be
able to articulate the reason for the referral.
A.
Courtroom Self-Help Attorneys
Using court-based self-help attorneys throughout the court process

and in all types of cases (not just IV-D child support matters)has
proven to be an optimal approach for California trial courts. Use of
these attorneys to help manage court calendars has proven helpful in
the following ways:
1.
Stipulations and Agreements. If litigants indicate at roll call

that they have an agreement, the self-help attorneys can
assist them in writing that agreement into an appropriate
form for the judge to sign.
2.
Procedural Information. Helping litigants with procedural

questions enables the judge to avoid spending the time to
answer such questions. It can also correct paperwork
problems promptly and eliminate needless continuances. If
a continuance is necessary, the self-help attorney should
notify the court clerk so the matter can be timely called.
The litigants can be told what they must do before the next
court date, and then they can leave.
3.
Settlement Assistance. Without attorneys in the mix, selfrepresented cases often have no help to resolve a case.
6-10
After all, if self-represented litigants could resolve their

disagreements amicably, they would not be in court. Using
court-based self-help or volunteer attorneys in the
courtroom gives the self-represented litigants a chance to
settle their issues on the day of their hearing. In some
instances, litigants may be able to settle all issues in their
case and leave the courthouse with a judgment. If, after
meeting with the attorney, the parties are not in
agreement, the issues can be narrowed and the parties
informed about what the judge will need to hear in order to
make a decision in the case. Significant numbers of
litigants need issues honed and documents organized and
exchanged so that hearings can proceed in an orderly and
efficient manner. This reduces frustration for everyone and
actually allows more matters to be heard. In many cases
with both parties representing themselves, a simple
investigation reveals that there is no real disputethey
just dont know what they are supposed to do, or need
someone to run a computer software support guideline
before agreeing to an order.
B.
4.
Preparation of Written Orders and Judgments. Litigants

need help with preparing written orders after the hearing
and judgments. Most self-represented litigants have great
difficulty in drafting clear and enforceable orders after the
hearing. Qualified assistance at this stage not only
enhances the court experience for them but also reduces
the frustration to litigants and the courts of later attempts
to enforce unclear or ambiguous court orders, resulting in a
significant reduction of court time at later hearings.
5.
Explanation of Orders. Self-help attorneys in the

courtroom can also explain the legal terms used in the
courts orders. When the court attorney is bilingual, he or
she can explain legal terms to the litigant and answer the
litigants questions in a way that cant be done by the
interpreter, who is ethically bound to interpret only what is
said in the proceedings.
Child Custody Mediators
Particularly when mediation is mandatory, having mediators in the

courtroom for those individuals who have not been seen in mediation
6-11
prior to the hearing date can be critical to avoid a continuance. This is

especially true for matters that have been set with an order shortening
time on a temporary restraining order.
C.
Volunteers
It is extremely valuable to develop a volunteer pool that reflects the

diversity of language and culture of the community.
1.
Attorneys. They can assist with the same sorts of matters

as the court-based self-help attorneys; however, careful
training must be available to volunteers on how to deliver
services without the appearance of bias.
2.
Community-Based Social Services. These can also be

resources in a courtroom setting so long as volunteers are
trained on impartiality and in the specific services to be
rendered to the litigants.
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.
VII. Cases Requiring Hearings

Once the cases that cannot proceed have been handled, and others
referred to available courtroom support staff, the judge can begin the
hearings.
A.
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.
Less Serious Charges. In handling traffic and misdemeanor

arraignment calendars, judges have found it useful to call
the least serious cases first. Defendants will often accept
prosecution offers or indicated sentences in these cases,
and it helps get a good percentage of the cases heard in a
relatively short amount of time. Also, if the most serious
cases are called first, defendants decisions not to resolve
their cases and ask for the appointment of the public
defender to represent them might set an example for
defendants in less serious cases to pass up settlement
opportunities that might be in their best interests.
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.
Judges Knowledge of the Case. Based on a judges prior

experience with a particular case or with similar types of
cases, certain cases may be expected to be more or less
contentious during a hearing. If so, some judges choose to
start with the less contentious cases to set the tone for the
hearings and to get short matters resolved first. However,
there may be a case on the calendar in which the parties
previously created a commotion in the courtroom; the
judge may want to handle this case first to remove these
difficult litigants from the courtroom.
4.
Timekeeping. A judge might identify the number of cases

likely to need hearings, figure out the amount of time left
on the calendar, calculate an average available time per
hearing, inform the audience of the average time, and
keep to the time allotted for each hearing. Additional time
could be offered at the end of the calendar if the judges
time estimate is off because more cases have settled,
leaving additional time available for hearings.
5.
Clustering Issues. Some judges cluster their cases, putting

those with similar issues together based on their prior
reading of the file. This allows them to focus on the specific
legal issues to be considered. They may put the attorney
cases first to allow the self-represented litigants the
opportunity to hear and learn from the presentation.
6.
Team Judging. In some courts, two or three departments

have teamed up for a self-represented day calendar.
Cases are assigned according to a direct calendaring
system, but if one department finds that a particularly high
number of litigants require contested hearings, the team
department will be called on to take the overflow. The idea
is that both departments are unlikely to overflow on the
same day.
VIII.
A.
Dealing with General Hearing Issues
Avoiding Dropping Issues
In self-represented litigant cases, there is no attorney to make sure

that issues are not dropped and that the court handles everything. A
particularly busy docket, with cases involving multiple issues, makes it
6-14
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.
Getting Needed Information
Getting sufficient information on which to make an informed decision is

central to any hearing. Information can come from a number of
sources.
Self-represented calendars require assignment of judges with
significant levels of subject matter expertise in the area of law
involved. If litigants have not been to a self-help center to assist them
with their pleadings, their declarations may contain confusing,
superfluous, or contradictory information. It is unlikely that the judge
will have the benefit of written points and authorities or trial briefs.
Furthermore, litigants will not be able to reference relevant points of
law during hearings to which a judge can refer. If judges are going to
get the information they need to make knowledgeable decisions, they
will often have to ask the parties questions. Therefore judges must
know the questions they need to ask and how the law applies to the
answers they receive.
A more complete set of suggestions for judge-litigant interactions
appears below.
1.
Documents, Photographs, or Other Physical Evidence. At

the beginning of the calendar, litigants should be advised
as part of the introductory script that any documents or
other evidence received by the court must be shown to the
other party first. The judge should also explain the process
for marking exhibits and for referring to them. Litigants
typically will be unable to lay the foundation for admitting
documents, photographs, or physical evidence. If the other
6-15
side does not object, the court faces no problem in

admitting the evidence; the judge retains the discretion to
discount or disregard it as required by law. If the opposing
party objects, the judge should question the proponent of
the exhibit to bring forth the foundational information on
which the judge can then rule on admissibility. See chapter
4 for a fuller discussion of these issues.
2.
Investigator Reports. The less time available for

meaningful hearings, the more judges are forced to rely on
information gathered outside the court setting. Information
from court investigators, for example, can be both helpful
and problematic for judges in self-represented cases. The
litigants will not be able to test the reliability of this
information by examining the investigator during the
hearing. This creates a far greater potential for inaccuracy
in the data than in cases where attorneys are able to
review these reports with clients and identify any
inaccuracies. To minimize the potential for error, litigants
should be provided with copies of investigators reports in
advance of the hearing and be given sufficient time to
identify and respond to any erroneous material that they
find. And judges should be willing to hear complaints from
self-represented litigants about inaccuracies in
investigative data. See chapter 9 for a fuller discussion of
these issues.
3.
Expert Reports. Judges may also be getting information

from experts such as forensic psychologists, vocational
counselors, or accountants. In cases involving selfrepresented litigants, psychological experts may be more
common. This sort of information can present more pitfalls
for a judge than investigative information because it
includes the experts opinions. Self-represented litigants
have no idea how to inquire into the credentials of experts
or the quality of their opinions. It is a problem when a
psychologists report, for example, is written using arcane
psychological terms. If psychological testing has been
included, the problem is aggravated. Professionals in the
field of psychology are not in agreement about the use of
testing or the role it should play in the law. Attorneys and
judges are outside their own field of expertise when it
comes to evaluating experts reports, and self-represented
litigants are at a total loss.
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Questions are not asked about whether doctorates were

obtained at accredited schools, whether tests have been
validated for the purpose being used, whether experts are
qualified to administer the tests given, whether test
administration was proper, what the most current literature
says, what limits there may be to this persons expertise in
psychology, and so forth. In reality, the more factual data
that a judge can glean from an experts report, the more
helpful it will be. Once again, ensuring that the selfrepresented litigant obtains a copy of the report well in
advance of the hearing appears to be the only available,
even though minimal, safeguard.
4.
Information From Court Staff or Court Files. Judges may

also be getting information from various court staff
members. One example would be the procedural
information provided by staff doing readiness reviews of
the cases prior to the calendar. Other examples might
include the following:
a.
b.
c.
d.
e.
f.
g.
Criminal histories on domestic violence calendars;

Identification of other cases involving the same
parties;
Restraining orders in other cases involving the same
parties;
Child custody orders from other cases involving the
same parties;
Findings and orders from other cases;
Compliance reports from court-ordered services
(e.g., drug testing); and
Child custody recommendations.
Whenever a judge obtains information outside the

courtroom, it is critical that the litigants not only be made
aware of the information that the judge has but also have
an opportunity to respond to it. The potential for error,
particularly when dealing with cases involving common
surnames, can be great, and input from the litigants is
essential to avoid mistakes. When judges receive
information from staff working inside the courtroom, the
information should be received either in writing with copies
provided to both parties and to the judge, or the judge
should state on the record in the presence of both parties
6-17
the nature of the information received and request

confirmation from the litigants of its accuracy.
C.
5.
Avoiding Ex Parte Communications With Staff. It is never

permissible to have discussions with staff about
information that bears on pending decisions in private out
of the presence of the parties. Allowing self-help attorneys,
volunteers, child custody mediators, or others in the
courtroom who may be working directly with litigants to
have access to the judge privately outside the presence of
the parties conveys an appearance of backdoor justice
that not only may constitute actual impermissible ex parte
communication but definitely undermines the procedural
justice goals for the court. If a situation does arise, such as
when safety is an issue, when a judge does receive
information from courtroom staff outside the presence of
the parties, this should be fully disclosed to the parties at
the earliest possible opportunity at the start of the hearing,
and the parties should be given an opportunity to respond.
6.
Avoiding Overly Friendly Conduct Toward the Attorney If

One Party Is Represented. Many attorneys appear often
before court staff and judges and may know them well.
These attorneys may walk around the courtroom freely and
joke with clerks in a way that a self-represented litigant or
an outsider would never be allowed to. The selfrepresented litigant may perceive this as favoritism or may
think that the judge will be prejudiced in favor of the
attorney.
Answering Litigants Questions
The ability to provide clear explanations to litigants during the hearing

is a significant asset to a judge during a self-represented litigant
calendar. While judges cannot answer questions about litigants tactical
or strategic issues, they can and should answer questions about
procedure or definition of legal terms. If self-help attorneys are present
in the courtroom or available at a court self-help center, referral to
such resources can provide the judge with a way to help selfrepresented litigants without taking the time to answer their questions.
The major issue with questions tends to be the amount of time
required to answer them rather than the nature of the questions
6-18
themselves. If a judge can refer the litigants to self-help attorney staff

to answer questions, hearing time is maximized. When the judge
makes the order in a case, it is best to be clear that the parties
actually understand the order. Clearly explaining the terms of the order
is well worth the time. Explaining the reasoning may also be helpful.
Even when litigants dont agree with the outcome, they are more likely
to comply if they understand that the decision was not arbitrary.
D.
Identifying Elevated Anxiety Levels of Litigants
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.
Ruling From the Bench
Generally, decisions should be made from the bench whenever

possible. Taking routine matters under submission will seriously
increase the burden on the judicial officer.
When explaining a decision from the bench, the judge can use the full
range of his or her communication skills, including intonation, body
language, and eye contact to convey sincerity. The judge can
summarize the arguments of the parties so that they are aware that
their viewpoints have been heard and considered. Sending a written
order after the fact reduces significantly the judges ability to convey a
sense of fairness; individual words in a written order or opinion can
easily be taken out of context to create unnecessary hard feelings.
Furthermore, requiring the parties to wait for their order eliminates the
opportunity for them to ask the judge for clarification. When litigants
understand the orders that the court makes, they are more likely to
comply with them.
Exceptions occur when a judge needs to research an area of the law
before rendering a decision or when rendering a decision in the
courtroom would clearly increase the serious emotional distress of a
litigant. The latter situations should be rare. In most cases, an
immediate ruling benefits the emotional state of the parties,
eliminating continuing anxiety about the outcome.
6-20
Matters taken under submission should be decided promptly, and the

parties notified of the judges decision by mail.
F.
Providing Written Orders
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.
IX. Contested Hearings Involving Two SelfRepresented Litigants

Judges have found the following suggestions helpful in handling
contested matters involving two self-represented litigants.
I explain the process of the hearing and reassure the parties that
each will be heard. And I make sure that happens! It usually takes
less time to get the information I need because I ask the questions
and hear it directly from the parties. The credibility is easier to
evaluate from the parties testimony and demeanor.
Judge
6-21
1.
Setting the Procedural Ground Rules. The judge should

explain to the parties how the hearing or trial will proceed.
2.
Providing Materials for the Parties. The court should

provide copies of a six-month calendar at each place at
counsel table to which each party may refer. In addition,
the court should provide pencil and paper for making
notes, recording the judges decision, and recording the
date and time of a future hearing (unless the courtroom
clerk prepares that notice).
3.
Outlining the Legal Issues the Judge Must Determine. Many

judges find it helpful to explain, in lay language, what he or
she must decide during the hearing. For instance, in a
motion for a change in the amount of child support, the
issues are whether there has been a material change in the
incomes of the parties or in the time the child spends with
each parent, and, if so, whether a change in the amount of
support is warranted. The judge should note which party
has the burden of proving these legal elements.
If the calendar consists of a series of similar hearings, this
explanation need not be repeated for each hearing. The
judge can merely ask the parties if they understand, based
on the previous hearings, what the judge must decide.
If self-help centers and the judges communicate about
procedures and the types of facts that judges will take into
consideration, handouts can be created and litigants will
have been told or informed of many of these things at
different times, in different settings, and by different
methods. This will reinforce the information and help
create consistency so that litigants will know what to
expect.
4.
Summarizing the Pleadings. The judge can save

considerable time by demonstrating his or her familiarity
with the basic written contentions of the parties. The judge
can take this summary from the cover sheet prepared by
staff, augmented by the judges own notes made during
the file review. This summary also demonstrates to the
parties the judges concern about the case.
6-22
5.
Swearing the Parties. The judge must remember to have

the parties sworn prior to taking their testimony. This can
be a time to remind them to stick to the facts relevant to
the issues previously outlined by the judge.
6.
Hearing the Parties Stories in a Structured Fashion. The

judge should make it clear from the beginning who will go
first, and that each side will have the same opportunity to
talk. The judge should ask the moving party to present his
or her evidence for the first issue the court must decide. If,
for example, that issue is whether the court has jurisdiction
over the matter, it should be simple to resolve. If the
moving party falters in presenting evidence, the judge can
ask questions to elicit the needed information (i.e., How
long have you lived in this county?). The judge can then
ask the opposing party if he or she disagrees. The judge
can then announce his or her decision on the first issue
(i.e., I find that the court has jurisdiction over this
matter.).
The judge should then proceed to the second issue, asking
for evidence from the moving party, asking questions if
necessary to elicit the needed information, giving the
opposing party an opportunity to contest the information,
and ruling on the issue.
7.
Controlling the Courtroom. The judge can promptly redirect

a party who begins testifying on irrelevant information. The
judge should also be quick to silence any interruptions by
either party, reminding them that each side will have an
opportunity to ask questions or present opposing testimony
in turn. As judges well know, the temptation to interrupt
during hearings is not exclusive to self-represented
litigants.
8.

Judgment. The general principles on ruling from the bench
and having the court prepare the written order or
judgment apply.
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X. Contested Hearings Involving One Represented

Litigant and One Self-Represented Litigant
Many judges report that they dread these hearings because they
perceive that they have less flexibility and feel that they must require
the self-represented litigant to perform to the level of the lawyer.
Other judges report a contrary experiencethat lawyers now have
sufficient experience with these types of proceedings to realize their
common interest with the judge in ensuring that the matter is resolved
on its merits.
The most important principles are the following:
1.
To give the lawyer an opportunity to present his or her

clients case and to advocate for his or her interests; but
2.
To proceed in such a manner that the self-represented

litigant is able to participate fully in the hearing; and
3.
To prevent the lawyer from stymieing the self-represented

litigant in presenting relevant, material, and admissible
testimony and other evidence.
Judges have found the following procedures useful in these cases.

A.
Proceeding As If the Case Involved Two Self-Represented
Litigants
The judge should explain the ground rules, outline the legal issues to
be resolved, and summarize the pleadings just as if the case did not
involve a lawyer. The judge may also want to point out that neutrality
may require questions of both parties if matters are not clear, and that
such questioning should not be interpreted as providing assistance to
one side or the other.
B.
Asking the Self-Represented Litigant to Present His or Her
Case in a Structured Fashion
The judge should proceed as if both parties were self-represented.
6-24
If the lawyer poses objections to the self-represented litigants

testimony or exhibits, the judge can respond in one of the following
ways:
1.
Asking the Lawyer to Explain the Basis of the Objection in

Sufficient Detail Understandable to a Layperson. The selfrepresented litigant can usually remedy a defective
question or provide a sufficient foundation for an exhibit, if
an adequate foundation exists, if the process is explained.
2.
Asking the Lawyer If His or Her Client Objects to the

Admissibility of the Information or Exhibit or Merely to the
Form of the Question or the Manner of Its Introduction. If
the objection is to form only, the court can note the
objection on the record and proceed to allow the
information or exhibit into evidence.
3.
The Judge Posing the Question. The judge can cut through
legal entanglements by posing a question in legally proper
form.
4.
If the Lawyers Behavior Is Seriously Delaying the Matter

or Preventing the Presentation of Material, Relevant, and
Admissible Evidence. The judge can explain the availability
of interim orders pending a continuance (which might
make the continuance unnecessary or unpalatable). The
judge may potentially make a fee order providing that the
represented party pay the costs of the other party to allow
him or her to consult with or hire an attorney because of
the opposing attorneys conduct. The judge may also
indicate that no fee awards will be made in favor of the
represented party if the case is continued because of the
conduct of the attorney, and ask that the lawyer confer
with his or her client to determine how to proceed.
5.
If the Lawyer Objects to the Procedure. The judge can

explain the neutral purposes of the proceeding and allow
the attorney to put the objection on the record. If the
attorney continues to object, the judge can note your
continuing objection to my method of proceeding. Your
rights are protected.
6-25
C.
Controlling the Courtroom
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.
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.
XI. Scripts and Helpful Phrases for Developing

Courtroom Styles
The following materials are provided as examples of approaches judges
can take in introducing parts of the hearing process to self-represented
litigants. Additional materials are included in the appendix. Every judge
will need to adapt them to the type of case, the circumstances of a
case, and to the judges own personal style.
While it can be useful to have specific wording, remember that how
information is conveyed is as important as what is said. It is usually
better to avoid reading a script; rather, the judge should be familiar
enough with the message that he or she can look at the litigants while
saying it. The bored airline flight attendant giving the standard
preflight information about exits and seat belts and no smoking is not
the model. Racing through the script is also more frustrating for
listeners for whom this is new information, which they do not want to
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.
Sample Preliminary Instructions
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.
Sample Basic Rules for Evidence Presentation
Evidence can be in the form of testimony from the parties, testimony

from witnesses, or exhibits. Everyone who testifies will be placed under
oath and will be subject to questioning by the other party. All exhibits
must first be given an exhibit number by the court clerk and then must
6-27
be briefly described by the witness who is testifying and who can

identify the exhibit. The exhibit is then given to the other party who
can look at the exhibit and let me know any reason why I should not
consider that exhibit when I decide the case. I will then let you know
whether the exhibit can be used as evidence.
I have to make my decision based on the evidence that is admissible
under the rules of evidence. If either party starts to present evidence
that is not admissible, I may stop you and tell you that I cannot
consider that type of evidence. Some examples of inadmissible
evidence are hearsay and irrelevant evidence. Hearsay is a statement
by a person who is not in court as a witness: hearsay could be an oral
statement that was overheard or a written statement such as a letter
or an affidavit. If a party doesnt object to it, I can consider hearsay
evidence. Irrelevant evidence is testimony or exhibits that do not help
me understand or decide issues that are involved in this case.
Sometimes you may want to tell me information that you think is
important, but that is not legally relevant. If you do, I will stop you,
because I am not allowed to consider legally irrelevant evidence.
C.
Sample List of Elements to Be Proved
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.
Sample Questions to Elicit Critical Information
In cases with common elements, asking the questions necessary for

the legal determination allows judges to get the facts they need and
allows time at the end for any other information that the litigant wants
to provide. Often, the opportunity to answer the critical questions is
enough for the litigant.
Give me a few minutes to get some basic information that I have to
have in these types of cases, which will give us more time for you to
spend on necessary details.
For a security deposit case:
1.
Did you have a written contract?
2.
Was a 30-day notice sent?
3.
Was the plaintiff on the contract?
4.
Is the defendant the owner?
5.
How much was the rent?
6.
How much was the deposit?
7.
Was the key returned?
8.
Was an inspection notice requested? Was it completed?
9.
Was the 21-day letter delivered or mailed?
10. Was any amount of the security deposit returned?
For a hearing on spousal support:
1.
2.
3.
4.
5.
How are current monthly living expenses paid?

How were monthly living expenses paid when you lived
together?
Were there any other sources of income or assets for
monthly living expenses?
Did both of you review and sign federal tax returns?
What documents or records did you use to determine your
income on the Income and Expense Declaration?
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.
Sample Questions to Establish the Admissibility of Hearsay
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.
Sample Approach to Swearing Both Parties
This approach removes the need for distinctions between arguments

and testimony:
You must remember that you are under oath throughout the hearing
(or trial). Anything you sayas a statement, question, or argument
must be truthful.
H.
Sample Setting of Ground Rules When One Party Is
Represented
Mr./Ms. Attorney, I intend to use relaxed language and relaxed rules
of procedure today to ensure that Mr./Ms. Self-Represented Litigant
understands what is happening and to ensure that he or she is able to
participate effectively. I ask you to do the sameto avoid the use of
legal jargon and to explain the points you wish to make in language
that both I and Mr./Ms. Self-Represented Litigant can understand.
I.
Sample Response to a Resistant Attorney
If we proceed under formal rules of evidence, you (the attorney) will

be required to explain to the self-represented litigant the basis for any
objections you makewith enough detail that the self-represented
litigant can take the corrective steps necessary to proceed. For
instance, if you object to a leading question, you would need to explain
6-30
that objection sufficiently so the self-represented party will be able to

pose an appropriate nonleading question.
I overrule the objection on the grounds that Mr./Ms. Self-Represented
Litigant is proceeding in substantial, if not exact, compliance with the
rules of evidence. Counsel, I invite you to make a continuing objection
that can be noted on the record so that we do not have to interrupt
Mr./Ms. Self-Represented Litigants presentation for this same sort of
objection.
Counsel, does your client contend that this document is either
inadmissible or something other than what it purports to be?
J.
Some Generally Helpful Phrases

1.
I understand and appreciate . . .;
2.
Please talk directly to me, not to ____;
3.
Stay with the facts of the caserulings are based on the

lawnot on personal issues;
4.
Anger is not persuasive; and
5.
Raising your voice is not helpful.
It may not be necessary to stop an interrupter verbally; merely raising

your hand as a stop sign may suffice. Use of the gavel is appropriate
if the interrupting behavior persists.
K.
Some Sample Nonconfrontational Questions

1.
Give me a little more information about

____________________
2.
Help me understand ___________________________
3.
Tell me more about

_______________________________
4.
Give me some specific details about

__________________________
6-31
5.
L.
M.
Give me a word picturekind of like a slow-motion instant

replay ______________
Some Ways to Control the Interrupter

1.
I know that it is difficult to wait your turn. I assure you

that I will see that you are allowed your turn as well.
2.
When you speak, I will be sure that you are not

interrupted either.
3.
Remember that one of the ground rules that I talked

about at the beginning is that we dont let people interrupt
each other.
4.
Im going to call for a recess [or continuance] in this

case.
5.
Holding up your hand.
Ways to Recognize and Validate the Litigant

1.
I can tell that you really care about your children.
2.
It sounds like you really tried to . . .
3.
Im really impressed that youve been able to work out so

many issues today.
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
Chapter 7: Settling Cases

Introduction
7-1
I.
Benefits to Providing Settlement Assistance
7-2
II.
Settlement Assistance Options
7-3
A.
Which Process to Offer?
7-4
B.
Should Participation in the Settlement Process be

Voluntary or Mandatory?
7-7
C.
Which Cases Are Appropriate for Referral to a

Settlement Process?
7-10
How and When Should Cases be Referred to a

Settlement Process?
7-11
E.
Who Should Conduct the Settlement Process?
7-12
F.
Location: The Courthouse is Often Best
7-16
G.
Confidentiality and Other Things to Consider
7-17
H.
Judicial Review of Settlement Agreements
7-19
D.
III.
A.
Providing Information to Litigants to Encourage and Support

Participation in Settlement Processes
7-21
The Information Challenges Facing Self-Represented
Litigants
7-21
B.
Information About Settlement Assistance Options
7-22
C.
Helping Litigants Prepare to Participate in Settlement

Processes
7-24
IV.
Examples of Settlement Assistance Programs for

Different Case Types
A.
Family Law
7-26
7-26
B.
Landlord/Tenant
7-27
C.
Small Claims
7-28
V.
Providing Information to Judges and Court Staff
7-28
A.
Intracourt Communication
7-28
B.
Community Resources Lists
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.
Benefits to Providing Settlement Assistance
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.
Less Formal and Complex Procedures. The procedural and

evidentiary rules that apply at trial either do not apply or
are relaxed in settlement processes, which typically makes
these processes easier for self-represented litigants to
understand and navigate.
2.
More Time to Explain the Situation. Settlement processes

may allow litigants more time and opportunity to explain
their situation in full context than they might have in the
courtroom. This additional time and attention can be
critical to enhancing self-represented litigants sense of
procedural justice.
3.
Ability to Address Broader Range of Issues. Settlement

processes, particularly mediation, may also allow the
litigants to address issues, such as emotional issues, that
would not be considered at trial. By addressing all of the
parties interests, a more comprehensive resolution of the
dispute is possible.
4.
Ability to Agree to Creative Solutions. In settlement

processes, particularly mediation, litigants can create
solutions to their disputes that could not be ordered by a
court and that can often better address all of their
interests. When the parties agree on their own resolution,
they may be more likely to comply with its terms than if a
decision is imposed on them
5.
Possible Benefits Even Without Settlement. Participation in

settlement discussions may have benefits even when the
discussion does not resolve the case. The process may
resolve some issues or help the parties focus on the facts
and issues in dispute. Such processes may also allow
7-2
litigants to rehearse their presentations and to reduce their

anxiety in presenting their case to the court.43
For the courts, potential benefits of offering settlement assistance:
II.
1.
More Satisfied Litigants. A survey of litigants and their

attorneys indicated that they were more satisfied with the
services provided by the court when they had access to
mediation through the court.44
2.
More Judicial Time. A study of mediation programs in

California trial courts found that these programs can
reduce the number of trials and hearings held by the court.
This, in turn, can free up time that judicial officers can
spend on those cases that most need their time and
attention.45
3.
Reduced Time to Disposition. This same study found that

court-connected mediation programs can reduce the time
to disposition, which can help courts meet their goals for
disposing of cases in a timely manner.46
Settlement Assistance Options
Settlement assistance services for self-represented litigants can take a

wide variety of forms. The court can offer different settlement process,
from mediation to arbitration. The processes might be conducted by
judges, temporary judges, attorneys, or court-employed mediators or
community mediators. These services can be provided at the time of a
hearing, trial, or other court-scheduled event. The settlement
processes can take place in the community or at the courthouse.
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.
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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.
Which Process to Offer?
There is a broad range of different alternative dispute resolution (ADR)

processes. 47 Three of the processes most commonly used in litigated
cases are mediation, settlement conferences, and court-connected
arbitration.
1.
Mediation
In mediation, a neutral third person facilitates communication between

the disputants and helps them try to reach a mutually acceptable
resolution. The process is informal, and the neutrals role generally
consists of helping the parties communicate with each other, clarifying
disputes, and, if possible, reaching a resolution. The mediator does not
impose or compel a settlement or a particular result; the disputants
themselves decide whether to resolve their dispute and on what terms.
As discussed below, there are also special, stricter confidentiality
requirements that typically apply in mediation and are intended to
encourage open and honest communication in this process.
Because mediation is the least formal and most flexible of the
frequently used ADR process, it may be the most appropriate for selfrepresented litigants who are struggling with the formal procedural
requirements of the litigation process. It is important to note,
however, that mediators may use a variety of different techniques, or
styles, of mediation to encourage settlement. One of the most
common ways that mediator styles are classified is as facilitative or
evaluative.48
i.
Facilitative Mediation. In facilitative mediation, the
mediator focuses primarily on helping the parties negotiate. At
the extreme, facilitative mediation may consist of simply helping
the parties to communicate with and understand each other. The
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
potential benefits of facilitative mediation with self-represented

litigants include:
It allows litigants a greater opportunity to express their

concerns, including concerns about issues, such as emotions,
that would not be considered in a process focused on purely
legal issues;
It allows litigants to craft a resolution that addresses all their

concerns; this, in turn, may improve satisfaction with the
mediation and court processes;
It may improve communication and help parties who will have

an ongoing relationship avoid or resolve future disputes.
The potential challenges with purely facilitative mediation

include:
Litigants who are not aware of their legal rights or norms for
resolving similar disputes may be disadvantaged in
negotiating an agreement; and
Some parties may be less likely to reach agreement without a

third persons assessing the dispute or pushing the parties
to reach settlement.
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:
An assessment from a neutral person who is aware of the law

and norms for resolving similar disputes may help the parties
have a more realistic sense of the likely outcome in court,
which may encourage settlement;
The mediation outcome is more likely to reflect legal rights or

norms for resolving similar disputes;
7-5
Some parties may be more likely to settle if the neutral

pushes them.
The potential challenges with purely evaluative mediation

include:
Litigants may not have the opportunity to express or address

non-legal concerns which may be fueling the litigation;
Some litigants may feel coerced by pushing from mediators;

and
To properly provide an evaluation, mediators must have

expertise in the subject matter of the dispute.
While many mediators might be classified as predominantly facilitative

or evaluative, most use a combination of these techniques that they
think will help in the particular dispute. If your court wants mediators
in its program to use, or refrain from using, a particular style or
technique it is therefore important to communicate this to the
mediators. It is also important to inform parties about mediation
styles so that they will have appropriate expectations about the
mediation process. Such an explanation is an integral part of the
orientation required by CRC 5.120(e) for mediation of custody and
visitation issues. In addition, if the parties will be selecting the
mediator, this information is important to help them select someone
who will use techniques that best meet their expectations and needs.
2.
Settlement Conferences49
In settlement conferences, the parties meet with a neutral third person

to explore settlement options. The neutrals are often judicial officers or
experienced attorneys serving as a temporary judge. Settlement
conference procedures vary from neutral to neutral and from dispute to
dispute, but are generally informal. Neutrals often use techniques
similar to those used in mediation; however, in a settlement
conference, the neutral generally focuses more on purely legal issues
and takes a considerably more active role in trying to guide the parties
to a resolution that the neutral believes is appropriate. Typically, the
neutral evaluates the case based on knowledge of the law and prior
experience and then seeks to persuade the parties to change positions
49
These may also be referred to as status conferences in some areas, such as in

family law cases in California.
7-6
and move toward a compromise settlement. As in mediation, the

neutral does not render a decision; the ultimate decision about
whether and how to resolve the dispute is left to the parties.
3.
Court-Connected Arbitration
In arbitration, a neutral person hears arguments and evidence from

each side and then decides the outcome of the dispute. Thus, unlike in
either mediation or settlement conferences, in arbitration the neutral is
a decision-maker. This makes arbitration more like the regular trial
process than either mediation or a settlement conference. However,
arbitration is still less formal than a trial, and the rules of evidence are
often relaxed. In addition, in court-annexed arbitration programs, the
arbitrators award is non-binding; the parties do not have to accept the
arbitrators decision, they can ask for a trial de novo.
California has a court-connected arbitration program, called judicial
arbitration, that is established by statute (Code of Civil Procedure
sections 1141.10 et seq.). Under this program, the arbitrators decision
will be entered as the judgment in the case unless a party requests a
trial de novo with 30 days after the arbitrator files the decision with the
court (Code of Civil Procedure section 1141.20). If a party requests a
trial de novo and the judgment at trial is not more favorable that the
arbitrators decision, the court must order the party to pay certain
costs of the other party and the court (Code of Civil Procedure section
1141.21).
B.
Should Participation in the Settlement Process be
Voluntary or Mandatory?
Whether participation in a settlement process is voluntary or
mandatory will typically depend on the laws or court rules that
authorize the particular program.
1.
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
valued at under $50,000 per plaintiff) (Code of Civil

Procedure sections 1775 et seq. and CRC 3.870 et seq.).
Some courts may also have established mandatory
mediation programs by local court rule.
2.
Settlement Conferences. These might be either mandatory

as part of a caseflow management system or voluntary. In
California, the court may mandate a settlement conference
in civil cases under California Rule of Court 3.1380. In
family law cases, the court may set a status conference on
its own motion (Family Code 2450).
3.
Court-connected Arbitration. Court-connected arbitration is

usually part of a mandatory court program. In California,
courts with over 18 judges are required to send nonexempt, unlimited civil cases valued at under $50,000 per
plaintiff to mandatory judicial arbitration. Smaller courts
have the discretion to do so. (California Code of Civil
Procedure 1141.11 et seq.) Cases that are exempt from
this requirement include cases where the court concludes
arbitration would not reduce the time and expense of
litigation; eviction cases; small claims cases; and cases
that include nonfrivolous requests for equitable relief such
as civil harassment, elder abuse, and domestic violence
restraining orders. (CRC 3.811.) Most family law cases are
also exempt from referral, but courts may order cases
involving the division of community property valued at
$50,000 or less to judicial arbitration if the parties have
not agreed to a voluntary division (Family Code 2554).
These exempt cases are all ones that frequently involve
self-represented litigants; thus, mandatory judicial
arbitration is often not used with these self-represented
litigants.
In any case, regardless of the amount in controversy, the
parties may also voluntarily stipulate to use judicial
arbitration. In addition, if the plaintiff agrees that the
judicial arbitration award will not exceed $50,000, the
plaintiff can elect to have the case submitted to judicial
arbitration.
The potential benefits of voluntary participation with self-represented

litigants include:
7-8
Litigants may be more likely to settle their cases if participation

in a settlement process is voluntary; and
Obtaining the parties voluntary agreement will help ensure that

they appreciate and participate meaningfully in the process.
The potential disadvantage of voluntary participation is that fewer

cases typically end up participating in the settlement process if litigants
have to agree to participate in the process, so fewer cases are resolved
through this process or otherwise benefit from it.
The potential benefits of mandatory participation in a settlement
process include:
More cases typically end up participating in the settlement

process;
Participating in a settlement process is often beneficial when

appropriately ordered without the parties agreement.
The potential disadvantages of mandatory participation include:
Litigants may feel coerced into participating in the process and

therefore may not meaningfully participate; and
A smaller proportion of the participating cases may settle when

participation is mandated.
Some courts have combined mandatory and voluntary elements in

their programs. For example, the court may mandate that parties
discuss settlement process options with the courts ADR administrator
but allow the parties to voluntarily choose whether to participate in a
settlement process after this discussion.
Particularly if participation in a settlement process is mandatory, it is
important that the court help the litigants understand that this process
is not an obstacle to keep them from their day in court but an
opportunity to participate directly in the resolution of their dispute. In
the case of both voluntary or mandatory programs, as discussed
below, it is very important to provide litigants with information about
the settlement assistance available through the court. If participation
in the courts settlement process is voluntary, self-represented litigants
are not likely to volunteer to participate without this information. If
participation is mandatory, litigants are likely to be upset about being
7-9
referred to the settlement process if they have not received

information about this process.
C.
Which Cases Are Appropriate for Referral to a Settlement
Process?
Not every case is suitable for referral to alternative dispute resolution.
While the self-represented can reap particular benefits from the
assistance of a neutral, the risks of harm are also maximized when a
litigant is inappropriately referred to a settlement process, since that
litigant has no attorney to protect him or her. Among the areas in
which particular caution should be used in referring any, but
particularly self-represented, parties are the following:
1.
When a litigant lacks mental capacity Such litigants

should not be referred to a settlement process where they
are required to participate on their own. Any agreements
into which they enter may be inequitable, impracticable, or
unenforceable.
2.
If a case presents an apparent potential for violence, or a

substantial disparity in power Particular caution must be
taken if using mediation or settlement discussions in these
cases. If such a case is referred to a settlement process,
the court should be particularly careful to ensure that the
neutral conducting the process has the appropriate training
to handle this type of case. CRC 5-215 sets out detailed
domestic violence protocols in court-connected custody
mediation. It provides for a variety of screening
procedures and safety precautions including requiring the
mediator to conduct an assessment of violence to
determine how best to protect the victim and address the
power imbalance. It also makes it clear that the issue of
violence itself cannot be mediated.
Before making referrals, judges or others making these referrals

should consider also any financial burdens on the self-represented, and
any other potential consequences, such as an enhanced risk of violence
in the family.
7-10
D.
How and When Should Cases Be Referred to a Settlement

Process?
If participation in a settlement process will be mandatory, the court will

need to decide how and when cases should be referred to that process.
In courts where participation in these processes is voluntary, the court
will still need to determine how and when to provide litigants with
information about the settlement processes available to them through
the court.
In most courts, the determination of whether to refer a case to a
mandatory settlement process is made by the judge based on
information provided by the litigants. For example, in California,
litigants in general civil cases are required to provide the court with a
case management statement that includes information about the case
and the parties interest in participating in various settlement
processes (CRC 3.) The judge can use this information to assess
whether referral to a particular settlement process is likely to be
helpful. However, where participation is mandated in certain case
types, referral may be automatic or may be done by court staff.
Because the costs of litigation, both financial and emotional, typically
mount over time, it may be most helpful if litigants use settlement
processes early in the life of a case. However, some litigants may not
be ready or have enough information to settle their disputes at that
point and settlement processes can be helpful at almost any point
before trial. It may therefore be ideal to refer cases to settlement
processes or provide information about settlement assistance
opportunities at several points during the litigation process. Referrals
can be made or information provided:
At the time a case is filed;

At the first case management or other conference at which a
judicial officer reviews the case;
At another court hearing;
Shortly before trial; or
On the day of the scheduled trial.
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.
Who Should Conduct the Settlement Process?
As noted at the beginning of this section, settlement processes can be

conducted by variety of different people including:
Judges judges often conduct settlement conferences;
Court staff many child custody and visitation mediations are

conducted by court staff mediators who have extensive experience
and training as set out in CRC 5.120;
Attorneys serving as temporary judges courts often use staff or

volunteer attorneys serving as temporary judges to conduct
settlement conferences;
Neutrals on a panel established by the court California superior

courts that have judicial arbitration programs are required to
establish panels of arbitrators and many courts have established
their own panels of mediators;
Neutrals on a panel established by another organization some

courts contract with local bar associations or community dispute
resolution programs to provide mediators; or
Private neutrals selected by the litigants some courts leave it up

to the litigants to select their own private neutral.
There are pros and cons to each of these approaches:
Judges using judges as neutrals requires more judicial time, but

litigants may appreciate judicial attention and feel more satisfied
with their court experience;
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;
Court panel having a court panel will provide a greater variety of

neutrals that litigants can select from and the court can still exercise
control over the quality of the neutrals by establishing qualification
requirements. These requirements can include training focused on
handling cases involving self-represented litigants;
Non-court panel this approach typically gives the court less ability
to control the quality of the neutrals; the court has to rely on the
expertise of the entity that created and maintains the panel;
Private neutrals the court does not have to expend resources on
neutrals under this approach, but the court also has no ability to
control the quality of the neutrals.
If a court is going to hire staff neutrals or maintain a panel of neutrals,

it is important for the court to consider what characteristics or skills
they want the individuals who will serve as neutrals to have and what
practices they want the neutrals to engage in or not engage in.
Recently a survey of attorneys was conducted to see what factors
attorneys looked for in mediators.50 These factors are likely also
applicable to self-represented litigants and should be borne in mind by
judges as they themselves promote settlement, evaluate potential
neutrals, or make referrals.
1.
Avoiding Pressure to Settle
A neutral should not measure his or her success in terms of the

numbers of agreements reached. A basic goal of mediation and
settlement assistance is to settle cases, but that is not its only
purpose. No one, including judges, should put pressure on the
mediator or settlement assistance provider or on the litigants to settle
cases. Rather, the goal should be to improve litigants abilities to make
decisions about their disputes and to move their cases toward
productive and timely final resolution. Both litigants and the court can
benefit from partial settlement, bifurcation of issues for a more focused
trial, or scheduling of pretrial status review conferences.
50
J. Kichaven, What Attorneys Want in Mediators and How to Provide It,

LA Daily Journal (Aug. 14, 2006).
7-13
It should be remembered that inappropriate pressure could be far

more harmful when a party is self-represented.
2.
Integrity
Participants place a high value on honesty in the mediator and

settlement assistance provider when assessing the fairness of the
process. The ability of a settlement officer or mediator to keep a
promised confidence or to make a report faithfully contributes
enormously to the trustworthiness of the process. Studies on
procedural justice report that when litigants have confidence in the
judges integrity, they are likely to regard the court process as fair
regardless of the outcome.51 Results suggest that this may hold true
for other neutrals in settlement processes. It is important not to let
pressure to settle interfere with this integrity.52
3.
Knowing the Underlying Legal Subject Matter
Attorneys generally expect that the mediator or settlement assistance

provider must be able to participate in an intelligent and informed
conversation about the merits of the case. In designing a program for
self-represented litigants, courts should be aware that litigants believe
that settlements must at least come close to meeting some standard of
fairness and therefore that they must be based in the law as well as
underlying equity. When a self-represented litigant has not been given
needed legal information prior to mediation or settlement, the
mediator or settlement assistance provider will have to be ready to
provide legal education and information.
CRC 5.120 requires that an orientation explaining the basic law
regarding child custody and visitation be provided to all participants in
court-connected mediation of these issues. It further requires that
mediators receive extensive training on these issues to be able to
provide information to litigants about a variety of options.
4.
Avoiding Manipulation or Oversimplification
51
T. Tyler, What Is Procedural Justice? Criteria Used by Citizens to Assess the

Fairness of Legal Procedures (1988) 22 Law & Socy Rev. 103
52
CRC 5.120(h) sets out the professional ethical standards for court-connected child
custody mediators in these matters.
7-14
Discussions aimed at settlement should be forthright and should

honestly discuss the issues in the case.
Weaknesses and strengths should not be over- or underemphasized.
Judges, staff, and neutrals should be careful not to confuse problems
with language, lack of literacy, or low educational level with a litigants
underlying intellectual ability. They should remember that selfrepresented litigants can generally grasp legal concepts, at least when
they are properly explained, and apply them to their own matters.
They are frequently accustomed to dealing with similarly complex
issues in other areas of their lives and are unlikely to respond well to
intimidation, manipulation, or trickery.
5.
Ability to Communicate
The ability to communicate clearly is perhaps the most important

characteristic of an effective neutral.
Judges should remember that the most effective neutrals, particularly
effective mediators, have the ability to share knowledge, to promote
settlement, to reframe old issues, and to introduce new possibilities for
consideration, and to do so with sincerity and honesty.
6.
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.
Developing Case-Specific Approaches
To be effective, neutrals must develop case-specific approaches to

work with the parties. One standard format or approach will not work
with every type of case, or every litigant. For example, in mediation,
with some litigants it will work best to meet together; for others it will
be best to caucus; a combination might be most effective for others.
7-15
Each case will have its own specific needs that the neutral must
analyze and understand.
8.
Developing a Plan for Follow-up
Follow-up can be critical to reap the benefits of settlement assistance

or to make sure that these benefits do not dissipate.
F.
1.
If the litigants reach agreement in a mediation or

settlement conference, it is good practice for the neutral to
follow-up to make sure that the agreement is memorialized
in writing. A neutral may be able to assist the litigants by
writing down the settlement terms the parties have agreed
to or, at the request of the parties, assisting in resolving
dispute over whether a written agreement accurately
reflects the settlement terms. Some programs are
structured so that the parties agreement is entered with
the court as an order or stipulated judgment.
2.
If the litigants do not reach agreement in a mediation or

settlement conference, there may be a need for an
additional meeting or meetings; perhaps the litigants need
to get more information or documentation, to talk to
affected or respected parties, or just to take the time for
reflection. Whatever the case, it is good practice for the
neutral to reach agreement with the litigants on a plan for
the next step and a schedule set so that everyone knows
what is expected.
Location: The Courthouse Is Often Best
Generally, in most cases, the best place to work with self-represented

litigants will be at the courthouse, at the time of some other courtscheduled event, as this is often the best time to get both parties
together. The courthouse is also seen as fully neutral, safe, and
accessible to communities in the area. In addition, performing the
mediation at the courthouse makes it easier to take advantage of
court-located services such as security (to keep the parties apart when
needed), informational resources, and possible help in putting any
agreement in writing and getting it properly filed with the court.
7-16
Unfortunately, many courthouses currently do not have adequate

space to conduct mediation and other settlement services. While
Californias Trial Court Facilities Design Standards53 call for space for
such services as part of any future courthouse facilities planning, in the
meantime, the court can explore conducting settlement processes at
other locations in the community, such as at community dispute
resolution centers or at the offices of the neutrals.
G.
Confidentiality and Other Things to Consider
Other things that a court should consider in structuring a settlement

assistance program include the confidentiality of the process and the
availability of interpreter services.
It is important when establishing a settlement program and informing
litigants about that program, that courts be clear about the
confidentiality of the particular process. Litigants perceptions of the
courts can be negatively affected if information that they think is
confidential is subsequently revealed.
In general, California law specifically provides that offers of
compromise, whether made in a settlement process or other context,
are inadmissible to prove liability for the claim (Evidence Code 1152).
In addition, quasi-judicial officers, arbitrators, and mediators, like
judges, are incompetent to testify in any subsequent civil proceeding
as to any statement, conduct, decision, or ruling occurring at or in
conjunction with a prior proceeding except in very limited
circumstances (Evidence Code 703.5).
In addition to these general confidentiality provisions, there are
specific provisions concerning the confidentiality of certain settlement
processes.
1. Mediation. California has a very strict confidentiality law that
applies to mediation (other than child custody and visitation
mediation, discussed below). Evidence Code sections 1115,
et. seq. provide, among other things, that:
Statements made and writings prepared for the purpose of,

in the course of, or pursuant to a mediation are not
53
Judicial Council of California, California Trial Court Facilities Standards (adopted

April 21, 2006); section 7.5
7-17
admissible or subject to discovery or compelled disclosure

in noncriminal proceedings in which testimony can be
compelled unless all mediation participants expressly agree
to their disclosure. (Evid. Code, 1119(a) and (b) and
1122(a)(1).);
All communications, negotiations, or settlement offers in

the course of a mediation shall remain confidential unless
all mediation participants expressly agree to their
disclosure. (Evid. Code, 1119(c) and 1122(a)(1).);
No one may submit any kind of mediator report,

assessment, evaluation, recommendation, or finding
concerning a mediation to a court or other adjudicative
body, and a court or adjudicative body may not consider
any such report, unless all parties to the mediation
expressly agree otherwise. (Evid. Code, 1121.)
For a written settlement agreement prepared in the course

of or pursuant to a mediation to be admissible, one of the
following must occur: (1) the agreement must specifically
provide that it is admissible or subject to disclosure; (2)
the agreement must provide that it is enforceable; or (3)
all the parties must agree that it is admissible. (Evid. Code,
1123.); and
For an oral settlement agreement made in the course of or

pursuant to a mediation to be admissible, ALL of the
following must occur: (1) the agreement must be recorded
by a court reporter, tape recorder, or other reliable sound
recording; (2) the terms of the oral agreement must be
recited on the record in the presence of the parties and the
mediator and the parties must express on the record that
they agree to the recited terms; and (3) the recording
must be reduced to writing and signed by the parties within
72 hours. Except in limited circumstance, the parties must
also either expressly state on the record that the
agreement is enforceable or binding or subsequently agree
to disclosure of the agreement. (Evid. Code, 1118 and
1124.)
It is important that courts that establish mediation programs

structure their programs with these statutory limits in mind. In
particular, it is important that judges not expect or request that
7-18
litigants or mediators inform the court about what happened in

the mediation.
2. Child custody and visitation mediation - Under California law,
a court may provide by local rule that mediators conducting
the statutorily mandated child custody and visitation
mediations make recommendations to the court when
agreements are not reached in mediation. (Family Code
3183.) These child custody and visitation mediations are
specifically exempted from the general mediation
confidentiality law (Evid. Code, 1117(a)(1)). Mediators
conducting these mediations are also exempt from the general
rule that mediators are incompetent to testify (Evid. Code,
703.5(a)(1)).
3. Judicial arbitration Any reference to the judicial arbitration
proceeding or award during a subsequent trial constitutes an
irregularity in the tral and may require vacating the courts
decision (Code of Civil Procedure 657, 1141.25)
Another important issue that courts should consider in structuring a
settlement program is providing interpreter services. It is key that an
interpreter is available if a litigant in a settlement process is non
English speaking or limited-English speaking. It is one thing to be able
to speak English in everyday life and another to be able to proceed
effectively in a court case.
H.
Judicial Review of Settlement Agreements
This is an area in which settlement programs may vary depending on

the type of case being handled. In some types of cases, such as those
involving child custody and visitation or the compromise of a minors
claim, the judge must approve any settlement reached, whether with
represented or self-represented litigants. In other types of cases, such
as general civil cases, judges typically do not review, and may often
not even see, settlement agreements; the parties simply dismiss the
pending civil case when they have agreed to a settlement.
In those types of cases in which judicial review is required, the judges
role generally includes ensuring the legal sufficiency and basic fairness
of any agreement reached in a settlement process. The purpose of the
judges review is not to second guess the wisdom of the litigants
7-19
agreement or to restrict in any way the wider array of solutions

available to them by way of settlement. Rather, it is to minimize the
opportunity for inadvertent procedural omissions or mistakes and to
reduce the risk of oppressive, fraudulent, or unconscionable advantage
being taken by one side over the other based on lack of
representation, or other potential threat such as in cases of domestic
violence. In these cases, the judge is the final protection to ensure the
fairness of the agreement for the self-represented litigant. This is true
regardless of whether the judge actually hears the case, or whether he
or she takes responsibility by signing the agreement formally entered
into by the parties.
When conducting any review of a settlement agreement, judges should
keep in mind the applicable confidentiality laws. For example, judges
should keep in mind that, except in child custody and visitation
mediations, neutrals are generally not competent to testify about what
happened in the settlement proceedings and judges should therefore
not request or permit parties to request such testimony. Judges should
also not ask parties to reveal communications that took place in such
mediations.
1.
Courtroom Review of Settlement Agreements
When agreements are reached through a settlement process that

occurs in a judges courtroom, the litigants may be available for voir
dire and review if the judge so desires. The judge can easily review the
agreement and examine the litigants if there is a question as to the
legality of the agreement, or whether one or the other of the parties
has entered into the agreement knowingly and understands the
agreement and any rights that party may be waiving.
2.
Review of Agreements Entered Outside the
Courtroom
When an agreement between self-represented litigants is crafted
outside the courtroom and submitted to the judge in writing without
the parties available for voir dire, the situation changes. Then the
judge must decide to what degree he or she will scrutinize the
agreement between the litigants, and whether to sign a stipulation
which includes terms that are clearly egregiously unfair to one side or
the other. For example, a properly notarized marital settlement
agreement between two self-represented litigants arrives along with a
judgment in a judges chambers for signature. The parties have
awarded the vast majority of the community assets to the husband
7-20
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.
III. Providing Information to Litigants to Encourage

and Support Participation in Settlement Processes
A.
The Information Challenges Facing Self-Represented
Litigants
As noted at the beginning of this chapter, just as they do in the regular
litigation process, self-represented litigants face certain challenges in
settlement processes.
1.
Self-represented litigants often lack an understanding of

their legal rights and obligations as well as of legal
procedures. They often find it difficult to articulate their
positions and may not be able to recognize settlement
terms that inadequately protect their rights and interests.
Thus these litigants will need legal education to participate
in settlement processes. Those working with selfrepresented litigants to provide this education should have
a high level of professional legal expertise in the subject
matter.
2.
Self-represented litigants may not be able to negotiate

settlement terms that adequately protect their rights and
interests. Often the parties may have significantly varying
levels of power within a case. Neutrals must know how to
handle this discrepancy in power during the settlement
process.
7-21
B.
3.
While the concepts of mediation and settlement are not

difficult if explained, the role of the neutral and the process
of achieving settlement in court cases are not always
obvious. It is important that self-represented litigants be
informed about the role of the neutral as separate from the
judge. The neutral is not the decision-maker. The litigants
have the right to disagree and to know that not settling
their case is not a sign of disrespect to the court.
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.
Information About Settlement Assistance Options
To encourage and support self-represented litigants in participating in

settlement assistance processes, it is important that they be provided
with information about the settlement processes that are available
through the court and in the local community. This includes
information about:
The basic nature of the settlement process(es), including the roles

and responsibilities of the neutral and the parties, how the process
typically proceeds and the confidentiality of the process;
The fact that parties are not required to settle their cases in these
processes; and
If the parties are responsible for selecting the neutral, information

about how to do this.
This information can be provided in a variety of forms, including:
Brochures or other written materials;
Videos that demonstrate various settlement processes;
7-22
Web-based information, which can include both written materials

and video vignettes;
Oral explanations of these processes, either in a group setting or

individual basis.
As discussed above, information about settlement assistance available

through the court should be provided to litigants as early in the
litigation process as possible and throughout the life of a case,
whenever participation in a settlement process can be ordered by the
court or voluntarily agreed to by the parties,
1.
Clerks Window. Litigants can be provided with information

at the time papers are filed, or information can be included
with papers as they are served. For example, California
courts are required to provide information about alternative
dispute resolution (ADR) to plaintiffs in general civil cases
when actions are filed, and to serve such information on
defendants along with the other papers being served. (CRC
3.221-3.222.) This includes information about available
court and community ADR programs and who to contact in
the court for additional information.
2.
ADR Administrator or Other ADR Staff Each California

superior court is required to designate an ADR
Administrator who is responsible for various aspects of
administering the ADR programs that the court offers for
general civil cases. The duties of the ADR Administrator or
other ADR staff may include meeting with litigants to
discuss settlement process options and providing
information other sources of about the courts programs to
litigants.
3.
Self-Help Center. If the court has a self-help center,

information about mediation and settlement assistance and
procedures might be obtained there. Many self-help
centers also provide mediation and settlement services or
help prepare litigants to participate in mediations or
settlement conferences.
4.
The Courtroom. Information about settlement assistance

options can be provided by judicial officers directly from
the bench. However, as noted above, it is important to be
sure that the litigants are clear about what is happening,
7-23
understand the process, and understand that they are free

not to settle. Self-represented litigants may be particularly
vulnerable to pressure to settle, especially when it comes
from an authority figure such as the judge. It is critical that
litigants not perceive this process as a way to deprive them
of their day in court.
C.
Helping Litigants Prepare to Participate in Settlement
Processes
As noted above, self-represented litigants may need assistance to
participate effectively in settlement processes, although probably less
than they would need to effectively participate in a trial. To effectively
negotiate, they may need help understanding the laws that apply in
their case and the potential outcomes if their case goes to trial and
how to present these in a settlement process. If the court is going to
provide settlement assistance services to self-represented litigants, it
is very important that the court build a system for providing this
assistance into its settlement program.
As with information about settlement processes, this assistance can be
provided in a variety of forms, including:
Pamphlets or other written materials that provide basic explanations

about the law in particular areas, such as evictions or debt
collection;
Web-based information, which can include pamphlets or frequently

asked questions. Californias online self-help center has a great deal
of this type of information to assist self-represented litigants;
Oral presentations concerning the law and procedures, in group or

individual settings; and
Individualized assistance in how to present a litigants position in a

particular case.
The same types of resources identified in Chapter 5, that may be

available to assist self-represented litigants to prepare for and
participate in the litigation process may also be appropriate resources
for self-represented litigants preparing to participate in a settlement
process. Available resources may include:
7-24
Family Law Facilitators;

Court self-help centers;
Small claims advisors;
Volunteer attorney programs;
Legal services programs;
Law school clinics; and
Local bar association programs.
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
difficulty that placing this responsibility on neutrals may create in

recruiting and retaining neutrals.
IV. Examples of Settlement Assistance Programs for Different
Case Types
Optimum settlement processes and procedures may vary with the type
of case. The following are examples of settlement assistance programs
set up by some courts for particular types of cases.
A.
Family Law
1.
Courtroom Settlement Assistance for Family Law Motions. Many

judges have found that having court-based self-help attorneys or
volunteer attorneys present in their courtrooms to assist selfrepresented litigants with settling their motions is routinely
effective in reaching agreements.
Typically, issues to be resolved include matters related to
children, spousal support, temporary use of property, and debt
payment. Clustering cases with self-represented litigants onto
specialized calendars generally allows the judge to make the
most efficient use of the attorneys time. If the litigants come to
an agreement, the attorney writes the agreement into the form
of a stipulated order for signature by the judge. If an agreement
cannot be reached, the attorney helps the parties identify areas
of agreement and narrows the issues to be presented to the
judge for hearing. Once the hearing has been completed, the
attorney can prepare the courts written order after the hearing.
2.
Courtroom Comprehensive Settlement Assistance. Some judges

have expanded the scope of their courtroom settlement services.
Judges refer litigants to work with the attorneys toward
settlement of all issues in the case. If complete settlement is not
possible, the case is moved as far along the process toward
judgment as is realistic for that day, and follow-up scheduling is
established. Orders will be made on all issues before the court
that day, and all other issues the parties can agree on.
3.
Settlement Conferences. Several courts have implemented

settlement conference services for self-represented litigants as
part of a caseflow management process in family law. Litigants
7-26
are given notice of a settlement conference date at some point in

the process. Some courts notice litigants of that date at the time
the initial papers are filed, some when responsive papers are
filed, and some when cases are set for trial. The time from initial
filing to the time for the settlement or status conference also can
varyusually from 30 to 180 days from the initial filing of the
case. Qualified family law attorneys, either from the courts selfhelp center or volunteer attorneys from the local bar, conduct
settlement discussions. The discussions address all issues in a
case. If agreements are reached, judgments can be entered the
day of the conference. If not, further settlement meetings can be
scheduled or trial dates set. If trial dates are set, the attorney
can help the parties organize documents, prepare joint trial
statements, and assist them in preparing to present their issues
to the judge.
4.
Settlement Conference Calendars. Where both parties have made

appearances in the case, litigants are noticed to appear before
court for a settlement conference. The judge conducts the
settlement conference. If settlement is not reached, the case is
scheduled for further conferencing or set for trial.
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.
Preparation. Attorneys from the court self-help center offer

twice-weekly workshops for self-represented tenants and on-call
services for self-represented landlords to educate them about the
settlement process, potential options, jury instructions, and the
need to go to trial if no agreement is reached. Stipulation for
judgment forms and jury instructions are discussed. This is a
stand-alone workshop. Follow-up assistance is provided if
litigants do not settle their cases and must proceed to trial.
2.
Settlement Conference. Attorneys conduct the settlement

discussions between the self-represented litigants. These are not
the same attorneys who provide the preparation assistance. In
this model, attorneys who conduct the settlement conferences
are from local legal services programs. Agreements can be
beneficial to both sides of eviction litigation. For example, a
7-27
landlord may get a date certain for restoration of the premises

and a payment plan for back rent; and the tenant may get some
additional time to find new housing. The parties may even be
able to agree to lodge the stipulation with the court so that the
case can be dismissed if the premises are vacated in good shape
as promised, relieving the tenant of an eviction record.
C.
Small Claims
Mediation and settlement discussion for self-represented litigants can

be productive in small claims matters, particularly in light of the
difficulties related to collection of judgments.
1.
Court-Based Mediation. Some courts operate in-court mediation

programs for small claims court matters. The judge can refer
litigants to the mediator at the time of the hearing. If no
agreement is reached, either a further mediation session can be
scheduled or the hearing can be held. Mediators from community
mediation programs, court self-help attorneys, volunteer
attorneys, or local legal services most frequently conduct courtbased mediation.
2.
Community-Based Mediation. Frequently, judges refer small

claims litigants to mediation at community-based dispute
resolution programs. When this occurs, new court dates should
be scheduled fairly promptly in case no agreement is reached.
The judge should make it clear that there is no pressure for the
parties to agree. Mediation should not be perceived as an
obstacle to their right to a hearing.
V.
Providing Information to Judges and Court Staff
A.
Intracourt Communication
Whatever settlement process the court chooses to provide, it is

important that each part of the court know what the others are doing.
For example, judges need to know what settlement services are
available at the self-help center, what cases are being handled, and at
what times. A self-help center needs to know if judges are expecting
staff to be providing same-day settlement services to litigants so that
planning to provide such on-demand services can be made. Clerks
7-28
need to know what specific types of settlement services are offered at

the courthouse, at what point in the court process they occur, what
preparation might be required, and what assistance is available.
B.
Community Resources Lists
The court should maintain a complete and updated list of community

resources available to self-represented litigants for settlement services.
This list should include information on contacts, areas of expertise,
language in which services are offered, any special cultural
competencies, eligibility requirements, and cost of services, if any. The
court may be able to obtain much of this information from the
coordinator of the countys dispute resolution programs act (DRPA)
coordinator.
C. Evaluation of Programs
In order to ensure that settlement services meet the goals set out this
section, it is often helpful to provide for an evaluation of the services.
This can include interviewing or surveying litigants to get feedback
about their experience.
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
Chapter 8: Special Due Process Considerations
Introduction
I.
II.
III.
IV.
8-1
Problems With Self-Represented Litigants Getting

and Giving Notice
8-1
Problems With Ex Parte Communications to the

Court
8-2
Problems With Information in Internal Court

Systems
8-3
Procedures to Minimize Risks of Due Process

Violations
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.
Self-represented litigants generally do not know the rules

about what information can be shared, what must be
shared, what must not be shared, and when such sharing
must occur;
2.
Self-represented litigants are generally more difficult to

contact than attorneys by fax or e-mail with reports and
other documents that need to be received shortly before a
hearing;
3.
Professionals assisting the court as mediators,

investigators, and researchers are often reluctant to
contact a self-represented litigant directly with information
that they would provide to an attorney as a matter of
course because they are concerned about the potential
response of the litigant to that information;
4.
Self-represented litigants are unfamiliar with the

procedures required to subpoena and cross-examine
witnesses, and to explain or refute information in
documents of which they have been given notice; and
5.
Self-represented litigants often have multiple cases

pending before different judges or court divisions and thus
might reasonably expect that these courts would be
automatically aware of the issues in a litigants different
cases, even when the courts are not so informed. Another
type of problem that can occur in multiple case situations is
when judges inadvertently rely on information from
another court case file without the partys knowledge or
opportunity to respond to that information.
II. Problems With Ex Parte Communications to the

Court
Ex parte communications can occur inadvertently when judges and
other court staff are in close contact and are working hard to process
cases efficiently and in the best interest of the litigants. For example:
1.
A family court services mediator or probate investigator

may speak about his or her interaction with the litigants
with the judge in chambers or another location where the
parties are not present and are unable to comment.
8-2
2.
A court-based self-help attorney or paralegal may provide

a judge with information about the financial issues with
respect to child or spousal support outside the presence of
the parties.
3.
A clerk in a domestic violence court may provide the

criminal court judge with a record of related cases that
includes information from a juvenile dependency case. This
information is not made available to the litigants because
of the confidential nature of the dependency case. There is
no chance to object to the information or to respond to it in
any way.
Self-represented litigants are less likely to discover that such ex parte

communications have occurred, are less likely to know how to
challenge them when they have occurred, and are less able to rebut
inappropriately communicated information. It is also possible that
opposing attorneys and even court staff may be more likely to initiate
ex parte communication when they know that the self-represented
litigant is not in a position to prevent this from happening.
The responsibility of courts to self-police in such situations is
therefore particularly high.
III. Problems With Information in Internal Court

Systems
Given the increased amount of information available in computer
systems and through case managers, judges may be presented with
information not developed by the litigants or their attorneys. Moreover,
even when litigants are aware of the information and can respond to it,
some kinds of information can create substantial risk of undue
prejudice and confusion of issues, and can potentially mislead the trier
of fact. (Evid. Code, 352.)
1.
Criminal history information (rap sheets) obtained by a

domestic violence court coordinator. For instance, a Family
Code section 6306(a) search of criminal history may reveal
that a respondent in a domestic violence matter is on
probation for possession of a controlled substance. Does
this make him or her any more likely to have committed
domestic violence in the judges mind? How will the court
give the parties notice that the information has been
8-3
received and considered by the judge in a manner that

provides a reasonable opportunity to respond to it? Who
will have access to this information?54
2.
Information about cases involving people or incidents that

are remote in time, relationship, or nexus to the issue
before the court. For instance, a mother has a current
dissolution with a contested custody issue. The courts case
manager has located a previous paternity case in which
this mother had been involved in a custody dispute over
two children with another man. In that five-year-old case,
there was a child custody evaluation recommending that
the children be in the primary custody of their father.
Should a judge see and be influenced by the previous
evaluation in the older case? If so, how will the parties be
notified that this evaluation is being considered? Who
should have access to the evaluation? How will the case be
set for hearing in a way that allows time for selfrepresented parties to respond to this information?
3.
Information in current cases that may prejudice a judge

unfairly on a particular issue in a related but different case.
For instance, a woman has filed for dissolution and set a
hearing to ask for custody. The judge is aware that she is
also the defendant in an eviction case in which the basis for
eviction is loud parties in violation of the lease. Should the
judge be influenced by this information in making the
decision about custody in the current dissolution case? How
will the court bring the matter to the attention of the
parties?
IV. Procedures to Minimize Risks of Due Process

Violations
Since attorneys are not available to raise concerns and objections
about due process in all such types of situations, judges should be
Family Code section 6306(b)(2) provides that the court must not consider any
information obtained as a result of the search that does not involve a conviction
described in Family Code section 6306(a). That information must be destroyed and
must not be a part of the court file or any civil case file.
54
8-4
especially mindful of due process in cases involving self-represented

litigants. Litigantsjust like attorneysmust be informed of ALL the
information that the judge will be using to make a decision and must
have sufficient time to review the information to be able to raise
concerns about its accuracy and probity and to rebut it.
Many of the institutions designed to provide information to the court
are overburdened. Judges need to be aware that there may well be
factual errors in reportsor that terms may be used that are imprecise
or inappropriate. In addition to time to review the reports, litigants
must be given the opportunity to raise questions at the hearing and
present evidence to rebut the report.
Judges can also encourage reporting professionals to review their
reports with self-represented litigants before submission, thereby
providing the opportunity to correct and rebut. In one county, the
common practice is for the child custody mediator to review the
materials in the custody evaluators report with the self-represented
litigant. The review is intended to ensure that the litigant understands
it, that errors are corrected, and that the litigant receives from the
mediator perspective on how the information will be considered.
Formal written protocols can help set the boundaries for
communications among judges and between judges and court staff on
substantive matters (those that go beyond calendaring or other
nonsubstantive procedural issues). The following protocols and
procedures are helpful:
1.
Written policies for communications among judges,

between judges and court staff, and between judges and
other government workers such as probation officers,
social workers, and child support enforcement attorneys
and staff, about any substantive matters related to
litigants.
2.
A standard procedure whereby all communications to

judges about substantive matters related to cases must be
in writing and be provided in advance to all parties.
3.
A standard procedure whereby litigants are given the

opportunity to question a person making a report about its
content, to question anyone whose hearsay statements or
opinions may be contained in the report, and to offer
evidence with respect to it. Reports should contain contact
8-5
information for those whose input has been considered in

the report so that the litigants may have the opportunity to
bring these individuals to court for questioning.
If the court intends to review any documents not submitted by the
parties such as docket sheets or computer printouts about related
cases, notice should be given to the parties indicating which specific
documents are to be reviewed, and copies of these documents must be
available to the parties in a timely fashion so that they have the
opportunity to be heard if they object.
Sometimes forms are marked as confidential, thereby creating in the
litigants an expectation that the information they provide will be kept
private. Litigants must always be informed of the limits to this
confidentiality. Examples include family court services reports and
recommendations as well as probate investigator reports and files.
It is important to inform litigants of their legal rights against selfincrimination. Judges may also want to consider taking precautions
against eliciting potentially self-incriminating information, or other
information against a litigants legal interest, in cases where there are,
or are likely to be, criminal charges. Training for court staff is also
helpful on issues such as limitations of confidentiality of
communications with litigants and on evidentiary privileges relevant to
the types of information common to cases involving self-represented
litigants (e.g., public information, medical records, mental health
information).
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
Chapter 9: Communication Tools

Introduction
9-1
I.
Communication Challenges With Self-Represented Litigants
9-1
II.
Word Content, Formality, and Overall Language

Level
9-2
A.
The Importance of Understandable Terms and Definitions 9-2
B.
Formal Versus Informal Speech
9-4
C.
Language Level as a Barrier, a Diagnostic Tool, and a

Solution
9-5
D.
Value of Written Materials
9-5
E.
Recognizing the Literacy Barrier
9-6
F.
Overcoming the Literacy Barrier
9-7
Increasing Listener Comprehension
9-8
III.
A.
Setting Ground Rules
9-8
B.
Providing a Mental Map
9-8
C.
Using Repetition
9-9
D.
Using Paraphrasing
9-9
E.
Asking Questions to Clarify Comprehension
9-9
IV.
V.
Nonverbal Communication
9-10
A.
Cultural Context of Nonverbal Communication
9-10
B.
Paths of Nonverbal Communication
9-11
C.
Effective Nonverbal Communication
9-11
Effective Listening Techniques
9-12
A.
Active Listening: Capturing and Confirming the Message
9-12
B.
Additional Tips for Better Listening
9-14
C.
Constructive Feedback for the Listener
9-15
D.
Tips for Helping Others Listen Better
9-16
VI.
Potential External Barriers to Communication
9-17
A.
Physiological and Environmental Factors
9-17
B.
Individual Differences and Assumptions
9-17
C.
Bias, Both Conscious and Unconscious
9-17
VII.
Tools for Dealing With Cross-Cultural Communication

Issues
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.
II. Word Content, Formality, and Overall Language

Level
A.
The Importance of Understandable Terms and Definitions
In all cases, especially those involving self-represented litigants, it is

important to try to make sure that the information and ideas conveyed
are understood by listeners, whether those listeners have a law degree
or not. Consider the terms used. Obviously, judges must be able to use
and understand legal vocabulary, but they do not always have to use
it. Using the specialized language of a profession can be a good
shortcut if everyone understands it, but it is not a good shortcut if the
listener does not understand it.
9-2
When there is no alternative to the use of a specific legal term and

there is a possibility that the parties may not understand it, it is helpful
to briefly explain the term. It is not necessary to sound erudite in order
to sound professional and to have the record hold up on review. On the
contrary, adapting to the listener is a hallmark of an effective
communicator in any field. And it is essential in dealing with selfrepresented litigants.
Most professionals are not aware of how specialized their language is.
When professionals think back to law school or to any time that they
were introduced to a new area of law, some terms that might have
seemed incomprehensible at first are probably now second nature. Like
most professionals, judges tend to think in the terms of art of their
profession, some to the point where they cannot translate legal
terms except by using more of them.
Here are a few commonly used terms and their possible nontechnical
equivalents:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
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.
obtain reliefto receive a court award of damages or an

order requiring the defendant to do or not do something
the partiesthe sides
petitionerthe person who asked the court to make a
decision
plaintiffthe person who brings a case against another in a
court of law
the proceedingthe action taken in court, whats
happening in court
prove the elementsdemonstrate the truth or the
existence of the necessary components
provisions of lawlaw
pursuant tounder
respondentthe defendant in a lawsuit, someone who has
to respond to or answer the claims of a person who asked
the court to make a ruling
rules of evidencethe rules for what is considered
evidence or proof in a court of law, and how that evidence
must be presented
sufficient number ofenough
under oathsworn to tell the truth
weightimportance
Many judges find it useful to think through common questions to ask

them in a way to make it more likely to get better information.
Does the matter stand submitted?
Do you have anything else to say before I make my ruling?
Did you cause to be filed?
Did you file?
Do you want a continuance?
Do you want to have this hearing at a later date?
B.
Formal Versus Informal Speech
To communicate better with self-represented litigants, many judges

find it helpful to use practices common to informal spoken language
even in the more formal environment of the court.
9-4
Less formal language includes the use of the following:

1.
2.
3.
4.
5.
Contractionsits, not it is;

Shorter sentences;
First and second personI, we, and you, not
third person (e.g., one);
Active voiceYou need to understand, not passive
(It should be understood); and
Informal connectors to open a sentenceAnd,
Now, Then, Because, not Additionally, At
this point in time, Subsequently, In light of the
fact that.
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.
Value of Written Materials
Some information is best provided in written form. When information is

complex or lengthy, a handoutideally with oral summaries or a
question-and-answer sessionreduces pressure on the listeners and
makes it more likely they will both receive and process the
information. Some written material is best provided before the court
proceeding (e.g., by the clerk, through Web sites or self-help centers),
which will greatly increase the likelihood that both sides will be better
prepared.55 By being in writing, it also allows for multilingual
translation and gives litigants the opportunity to obtain help to
understand the materials. Some information is important enough to be
conveyed in both written and spoken form.
55
Albrecht et al., p. 45.
9-5
E.
Recognizing the Literacy Barrier
However, judges must always remember that as a practical matter,

information given in written form is inaccessible to many of the selfrepresented.
It is estimated that over 2 million native English speakers in California
are functionally illiterate,56 which is defined as being unable to read,
write, and communicate in English at a level necessary to function on
the job and in society. The Correctional Education Association
estimates that 65 percent of adult prisoners are functionally illiterate.57
In Judging for the 21st Century: A Problem-Solving Approach, Justice
Paul Bentley (Ontario Court of Justice, Ottawa, Canada) has written
that
judges must learn to recognize and read the signs of low literacy.
People may try to hide literacy problems by:
Saying they cannot read a document because they forgot to

bring reading glasses;
Claiming to have lost, discarded, forgotten to bring, or not to
have had time to read documents;
Asking to take home forms to read later;
Claiming to have a hurt arm and are therefore unable to
write;
Glancing quickly at a document and then changing the
subject, or becoming traumatized, quiet, or uncommunicative
when faced with a document;
Hesitating when asked to read a document and/or reading it
excessively slowly; or
Appearing to read a document very quickly, although they are
unable to summarize its contents.58
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
Possible markers of low literacy include the following:

1.
2.
3.
4.
5.
6.
A person who has not completed high school or has

difficulty speaking English;
A person who has filled in a form with the wrong
information or has made many spelling and grammatical
errors;
A person who claims to go to legal aid every day, but
states that he or she doesnt have time to fill in the
relevant forms;
A person who seems not to relate to or understand
questions about particular times, dates, and places;
A person whose writing and speaking styles dont match;
or
A pre-sentence report that indicates that an individual left
school at a young age or before completing grade 10, or
that chronicles a history of unemployment or refusal of job
training, promotion, or reassignment.
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.
Overcoming the Literacy Barrier
To address low literacy in the courtroom, judges can do the following:

1.
2.
3.
Be aware of their own biases relating to low literacy

remember low literacy does not equal low intelligence.
Educate themselves about low literacy in their community
and in the courtroom;
Make it easier for people to understand by
a.
Slowing down,
b.
Doing as much orally as possible,
c.
Speaking clearly and repeating important
information,
d.
Supplementing oral information with a written note
that the person can mull over in private or have
someone read later, and
9-7
e.
5.
Previewing or reading aloud documents in the

courtroom;
Keep literacy in mind when sentencing; consider literacy
training as part of rehabilitation; keep in mind that most
rehabilitative programs (job skills training, anger
management, substance abuse, spousal abuse, etc.) are
literacy based; or
a.
Use plain language instead of legalese,
b.
Use short sentences and clear language,
c.
Use words consistently,
d.
Use the active voice, and
e.
Avoid strings of infinitives (authorize and
empower).
III. Increasing Listener Comprehension

Various techniques have been shown to increase a listeners
comprehension of verbal information.
A.
Setting Ground Rules
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.
Providing a Mental Map
It is helpful to give court participants a mental map of whats

aheadwhat will take place. After each major stage, judges should let
them know where they are in the process and what comes next.
For example, the following statement could be used: The first thing I
need to find out is whether this court has jurisdictionthat is, the
courts power to decide this case. Then I need to find out whether the
financial situation of the parent who does not have custody has
9-8
changed, and if it has, I need to decide what change in monthly

support would be appropriate.59
Some judges use visual aids to supplement understanding such as the
PowerPoint presentation in the appendix.60
C.
Using Repetition
Given that this is often new information to self-represented litigants, it

can be helpful to repeat important information. As mentioned above,
judges will want to consider having important information in both
written and spoken form. It is helpful if the same information is also
conveyed to litigants at all steps in the process so that the clerks, selfhelp center staff, and court are providing consistent information to
litigants.
D.
Using Paraphrasing
It is often productive to ask court participants to paraphrase important

information out loud in their own words to check their understanding.
This will also increase retention.
This example combines explanation and paraphrasing: You are
required to sign a piece of paper promising the court to do certain
things. If you do not keep your promise, the consequences are . . . Are
you clear what you need to do? What is that?
E.
Asking Questions to Clarify Comprehension
Frequently ask if court participants have questions, and PAUSEfor at

least 5 seconds for fairly basic questions and at least 810 seconds for
more complex ones. Make sure that participants understand that its
okay to have questions.
1.
59
60
Count to yourself if necessary to make sure the pause is

long enough to allow listeners to process your question and
formulate their own.
Adapted from Albrecht et al., p. 46.

Zorza, p. 23.
9-9
2.
Use nonverbal behaviors to show that you are open to

questions. Include some of the following: establish eye
contact, pause, sit up straight or lean forward slightly, tilt
your head a little to one side, use a nonthreatening vocal
tone, gesture with open hands.
3.
Watch the listeners nonverbal cues to see if he or she has

questions but is hesitant to ask them. This is especially
important for people who speak English as a second
language or others who might be confused or intimidated
by the surroundings and the process.
4.
Answer likely questions even if your listeners dont ask

them, if you think the information is important. A question
people often have is . . .
IV. Nonverbal Communication

A.
Cultural Context of Nonverbal Communication
Anytime oral communication is involved, nonverbal communication is a

factor. Even when the judge is not speaking, he or she is still
communicating nonverbally. Indeed, nonverbal messages can be more
significant than verbal ones. They cannot be avoided, they vary with
background and culture, and they are often difficult to interpret.
Within the courtroom setting, nonverbal communications reflect the
relationships between various pairs of participants, build confidence
and trust in the judge and in the process, and help maintain courtroom
traditions. Consciously or, more often, unconsciously, they affect
perceptions of credibility and are interpreted as expressing emotion.
Research on communication shows that we rely on nonverbal
behaviors even though we often misinterpret them and even though
there are no absolute formulas for their interpretation. For instance,
crossed arms do not always mean closed to communication, although
some people might respond to crossed arms as if they do.
Interpretation of nonverbal behavior becomes more accurate when
clusters of behavior, or several behaviors, indicate the same
conclusion.
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.
Paths of Nonverbal Communication
Judges should be aware that they are sendingand receiving

messages through all of these nonverbal paths:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
C.
Voice (volume, articulation, pace and rhythm, pitch and

inflections, pauses);
Eye contact;
Facial expressions;
Gestures;
Posture, movement, and body orientation;
Use of space and room arrangement;
Appearance and objects (clothing, jewelry, items on the
bench, etc.);
Time (on time or not, time allotted, time allowed to speak,
etc.);
Silence (differences in meanings assigned to silence, length
of silence); and
Othersanything that people can interpret as being
meaningful is communication (blushing, sweating, blinking,
touching, crying, etc.).
Effective Nonverbal Communication
The following are tools for effective nonverbal communication on the

bench:
1.
Awareness of the communicative power of voice-vocal tone

and inflections are key components in conveying respect
for others. In addition, the rate of speaking will have an
impact on the messages clarity, something that is
particularly important when there are cultural differences.
9-11
V.
2.
Looking at a person while they are speaking shows

attentiveness and makes it easier to see the speakers
body language and to regulate the interaction better.
Judges should not be offended when litigants are shy about
looking at thempower and cultural differences are often
reflected this way.
3.
Orientation of the body toward the speaker and sitting up

straight or leaning forward slightly demonstrates
engagement in the interaction, reinforces that the speaker
should be directing his or her remarks to the judge, and
encourages more active listening.
4.
If verbal and nonverbal behaviors are inconsistent, people

tend to believe the nonverbals. Maintaining congruence
between the verbal and nonverbal messages, that is,
sending a consistent message, will reduce uncertainty and
add strength to the message.
Effective Listening Techniques
Effective listening means understanding the speakers entire message,

bringing together verbal and nonverbal communication skills. As the
proverb says, Speaking is when you sow, listening is when you reap.
The skills discussed below should be considered from the perspective
of the judge as listener and of others in the courtroom as they listen to
the judge.
A.
Active Listening: Capturing and Confirming the Message
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
may not be looking at you when I am writing, but I am listening.

Please continue.
Second, draw out the message as necessary. It might be necessary to
initiate the interaction, to encourage fuller responses or bring the
speaker back from a tangent. Of course, one of the best ways to do
this is to ask questions. The type of question will affect the answer.
1.
Close-ended questions allow for short, direct answers; they

often start with is, are, did, do, when. These are effective
when specific information is needed and when it is
necessary to establish control of the topic or the
proceeding.
2.
Open-ended questions allow for a broader range of

responses; they often start with what, how, why, describe,
explain, tell, give an example. These are effective when
probing for information and when answers of greater depth
are needed. Examples include How so? Give me a little
more information about, Help me understand, Tell me
more about, Give me some specific details about, and
Give me a word picturelike a slow-motion instant replay
of.
Third, communicate understanding of the message. There are usually

several levels of meaning in every exchange.
1.
2.
Content: facts, information. Paraphrasing is one of the

most useful tools there is for checking (and showing)
understanding of a messages content.
a.
If I understand you correctly . . .
b.
What Im hearing is . . . Is that right?
c.
So, youre saying . . . ?
Emotions: feelings, reactions. When emotions play an

important role in the message, it can be effective to
acknowledge their existence. Even if the emotions arent
relevant to your decision, reflecting the emotions back lets
the litigants know theyve been heard and often allows
them to move past the emotions to give you the
information needed.
9-13
3.
a.
It sounds like youre very frustrated. What I need

from you now to help me make my decision is . . .
b.
Im sorry that you and your family are going

through this at this time; could you tell me more
about . . .
Intent: why theyre giving you this message, what theyre

trying to achieve with it, what the connection to the overall
proceeding is.
a.
You believe this information proves that . . .
b.
You want to make sure that I understand that . . .
Fourth, encourage confirmation or clarification of the meaning. To

make sure that the listener got the message, the judge should give the
litigant a chance to verify or clarify the judges interpretation (Yes,
thats what I meant or Well, not quite, your honor. What I meant was
. . .).
Voicing the speakers own feelings can be useful in conveying
empathy: I can tell that you really tried to; I can tell that you
really care about 61
B.
61
Additional Tips for Better Listening
1.
Listeners should begin with the desire to listen. Attitude

affects effectiveness.
2.
Listeners should focus on the message. Tune out

distractions, including those created by the speakers
themselves (e.g., nervous quirks) and their own internal
distractions.
3.
Listeners should try to understand the speakers viewpoint.

Life experiences affect perspective. Some effort can
overcome the potential for misunderstanding that
sometimes comes with differing life experiences.
Ibid.
9-14
C.
4.
Listeners should withhold judgment as long as possible.

Once we label something as right or wrong, good or bad,
we lose objectivity.
5.
Listeners should reinforce the message. Everyone can think

four times faster than most people speak. One can become
a better listener by making good use of this ratiomentally
repeat, paraphrase, and summarize what the speaker is
saying.
6.
Listeners should provide feedback. They can use both the

verbal and nonverbal channels when possible. (See below
for tips on giving verbal feedback.)
7.
Listeners should listen with their whole body and look at

the speaker. Being physically ready to listen usually
includes sitting erect, leaning slightly forward, and placing
both feet flat on the floor. Not only will the speaker feel
that the listener is actually listening to them, but the
listener is more likely to listen better (behavior both
reflects and affects attitudes).
8.
Listeners should listen critically. Even though listeners

should try to understand a speakers viewpoint and
withhold early judgment, they obviously need to test the
merits of what is heard. This is the real balancebeing
open-minded and being able to critically evaluate what is
heard and the credibility of the sources.
Constructive Feedback for the Listener

When it is particularly important that the listener receive feedback,
the following tips may make it less likely that the listener will
become defensive and tune the message out. Speakers should do
the following:
1.
2.
3.
4.
Begin with a positive statement;

Be specificmake clear both what is meant and what is to
be done about it;
Be honest but tactful (a real skill!);
Personalize your comments by using the listeners name
occasionally and using I language to describe your
9-15
5.
6.
7.
8.
D.
perceptions and reactions, to reduce defensiveness and

help establish rapport;
Reinforce the positive and mention what theyve done well;
Tell them whats in it for them (positive consequences of
getting this feedback);
Emphasize a problem-solving approach to the negative;
and
End with a positive statement. Sandwiching the negatives
between positives makes them more palatable.
Tips for Helping Others Listen Better
Judges should also consider these choices in addition to using the

techniques discussed earlier.
62
1.
Visual Supporting Materials. Getting the information

through more than one channel enhances comprehension
and retention. There are many different types of learners
visual and auditory are twoand using more than one
channel will build on the strengths of more listeners and
reinforce the information for everyone.62
2.
Conducive Listening Environment. Even though speakers

may not have control over such factors as the acoustics,
the seating and temperature, the frequency of breaks, the
ambient noise, the number of interruptions, and so forth,
they can significantly affect how well the listeners can
concentrate. Controlling the factors that one can, and
balancing the others by using as many techniques as
possible for better communication, will help.
3.
Decreasing Distance. The courtroom environment and

procedure, including the level at which the judge sits and
the robe and demeanor, establish the judges clear position
of authority. But judicial demeanor does not mean that a
judge has to be intimidating. Judges should speak directly
and personally to the litigants. The judge will appear to be
more in control and will get better responses when they
seem comfortable with the litigants as people and appear
to want to understand their needs and problems.
Ibid.
9-16
4.
Building Self-Awareness and Skills. A speakers

mannerisms can distract even good listenerstry to
identify any distracting habits (videotaping can help to
identify these) and to work on removing them.
VI. Potential External Barriers to Communication

The following can be significant barriers to communication.
A.
Physiological and Environmental Factors

1.
2.
3.
4.
5.
6.
7.
B.
Individual Differences and Assumptions

1.
2.
3.
C.
Thinking ahead of the speaker;

Preoccupation/boredom;
Message overload/listener fatigue;
Physical distractions (noise, disruption);
Stress, physical discomfort, fear;
Mental illness; and
Time pressures.
Personal mannerisms;
Fear of appearing ignorant; and
Assuming that listening is passive and effective
communication is the responsibility of the speaker.
Bias, Both Conscious and Unconscious

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
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
VII. Tools for Dealing With Cross-Cultural

Communication Issues
Cultural norms and values shape all communication experiences.
Because the mainstream American culture and justice system place a
high value on explicit, direct communication (what is saidthe content
and exact meaning of words), there is ample opportunity, if not a
likelihood, for miscommunication in cross-cultural exchanges where the
context of words, how words are said or written, and the
circumstances surrounding the communication event are emphasized.
Strategies to minimize potential barriers created by cross-cultural
communication include all the techniques, especially listening,
mentioned but might also include the following.
Speakers should
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Speak audibly and distinctly, but without exaggeration;

Speak in a relaxed and unhurried manner, and slowly, if
necessary;
Not speak louder in an effort to be understood (a common
reaction, but often interpreted as intimidating, even
hostile);
Be willing to take the time to explain or rephrase what is
said, if necessary;
Communicate concepts clearly and in an orderly manner;
Give examples to demonstrate;
Learn the correct pronunciation of a persons name;
Not expect tone of voice that is meant to convey emotion
(e.g., sarcasm, humor, praise, blame) to be understood
(messages not intended literally may be interpreted as
such);
Avoid colloquialisms, slang, and mixed language;
Not rely on eye contact (or lack thereof) to indicate
respect, honesty, credibility, guilt, and innocence;
Not ask questions in the negative;
Remember that Yes or OK may mean I am listening
or I have heard what you said rather than agreement, or
that nodding may be a sign of respect, not of agreement;
and
Understand that nondirect answers, or brief limited
answers, are not necessarily signs of lying or withholding.
Listeners should
9-18
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Ask the speaker to slow down, enunciate more clearly,

repeat, rephrase, or simplify;
Rephrase or summarize for clarification and confirmation;
Make it clear that you really want to understand what the
speaker is saying;
Not interrupt, unless necessary;
Respect silence;
Allow extra time;
Not make assumptions about facial expressions, body
movement, or hand gestures (or lack thereof);
Not make assumptions about tone of voice or nonlanguage
sounds;
Not misinterpret an effort to make oneself understood by
speaking more loudly as anger or aggression;
Not interpret silence as agreement;
Expose themselves to different accents to get used to
them; and
Educate themselves as much as possible on cultural issues
of the communities the court serves.
In asking questions of persons from different cultures, it is helpful to

remember that the frame of reference can make a large difference in
communications. For example:
Context is so important! I once interpreted in a case where a
Guatemalan was asked to describe one of the parties. He said
that she was a tall blonde. Well, that was true from his
perspective, but to the judge and most members of the jury, she
looked more like a medium-height brunette. And it seemed like
he was lying. Instead of asking for a description, I recommend
that judges ask if there is a person in the courtroom who looks
like the person being discussed.
- Court Interpreter
1.
Persons who have grown up in most countries other than

the United States or England use the metric system. It
may be easier to ask the person to compare the length of
the object in question to something in the courtroom.
9-19
2.
In many countries, December 14 would be written as

14/12 rather than as 12/14. In asking about dates, it is
helpful to ask for the name of the month and date.
3.
In Mexico, the fathers surname appears first and the

mothers second. For example, Jose Garcia Chavez would
generally go by the name of Jose Garcia. Judges may want
to ask what the fathers last name is in order to determine
the persons official last name.
4.
Students in Spanish-speaking countries are generally not

taught to spell in their head. Thus it can be difficult to spell
their name out for the judge or court reporter. It is
generally better to give them the opportunity to write out
their name in order to avoid discomfort and misspellings.
5.
In traffic cases, questions like Were you going southbound

or northbound? may be difficult to answer for persons
from cultures more apt to think of landmarkstoward the
ocean, toward the mountains, toward the city.
6.
Many persons from other cultures find it rude to point at

others. Thus they can be asked where the person is sitting,
what clothing theyre wearing, or similar identifying
questions.
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
CHAPTER 10: AVOIDING UNINTENDED BIAS

Introduction
10-1
I.
The Roots and Dynamics of Unintended Bias
10-1
II.
Social Science and the Dynamics of Unintended Bias
10-2
A.
B.
C.
D.
Categorization of and Preference for People Based on

Group Identity
10-3
Human Brains Encode Information About Groups of

People Into Memories
10-4
Humans Strongly Prefer Persons From the Same Social

Categories
10-4
Humans Tend to Perceive Out-Group Members as All

the Same
10-5
E.
Preference for Members of In-Groups Begins at an Early

Age
10-5
F.
Human Brains More Readily Process Information That

Confirms Our Beliefs, Attitudes, or Stereotypes
10-5
These Early Beliefs, Attitudes, or Stereotypes Continue

to Exist at an Unconscious Level
10-6
H.
Implicit Bias Affects Even Nonverbal Behavior
10-6
I.
Implicit Bias Increases Under Certain Circumstances
10-7
J.
Emotional State Can Also Influence the Tendency to

Implicit Bias
10-7
G.
III.
Implications for the Judicial Fact-Finding and Decision-Making

Process in Cases Involving Self-Represented Litigants
10-8
IV.
Specific Techniques to Minimize Implicit Bias
10-9
Stay Motivated to Be Fair and Accurate
10-9
A.
B.
Maximize Accountability
10-10
C.
Take Ample Time
10-10
D.
Minimize Distraction and Pay Attention
10-10
E.
Be Conscious of Difference
10-11
F.
Think About Thinking
10-11
G.
Confront Cultural Stereotypes
10-12
H.
Seek out Images and Social Environments That

Challenge Stereotypes
10-12
Maintain Constant Vigilance
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.
The Roots and Dynamics of Unintended Bias
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
Sometimes theyve come from other countries where it may be

disrespectful to look a person in authority in the eyeor where going
to court means paying money in bribes or being fearful of going to jail.
Sometimes theyve gone to court in different states or for different
types of cases and have expectations based on those experiences.
Most have family or friends whove had some type of experience in
court, and those people have given suggestions that vary dramatically
in their helpfulness. Most people have seen Judge Judy or L.A. Law or
Perry Mason or Judging Amy or The Peoples Court or Kramer vs.
Kramer or My Cousin Vinny. They know that it isnt all true, but it still
forms some part of their understanding of the legal system and shapes
their expectations.
The Canons of Ethics require judges to act without bias. But when
dealing with litigants directlypeople of all colors, economic
backgrounds, cultural backgrounds, and mental capacitiesit is wellnigh impossible that judges wont have some biases to confront and
consider. Most judges arent even aware of these biases, but its
important to consider these issues while being a judge in one of the
most diverse areas in the world.
As a lawyer and now a judge, Ive always worked in a culture where
most of my colleagues are quite smart and articulate. We all went to
school for many years, read a lot, and write well. I was really shocked
to learn that half of the American people read at less than fifth-grade
reading leveland that doesnt even count litigants who come from
other countries, many of whom had few opportunities for organized
education. I find that when I read a pleading from someone who
clearly has problems with writing or spelling, I remind myself not to
confuse literacy with stupidity. I figure they can probably fix a car or
my computer much easier than I can. Sometimes its really frustrating,
but overall, Im really proud that our court system is open enough that
everyone can have their day in court (even if they cant spell).
Judicial officer
II. Social Science and the Dynamics of Unintended

Bias
The field of social cognition (the study of the relationship between
mental processes and social behavior) offers one way to think about
these issues. Research in this field helps us understand the natural
10-2
processes of categorization of and preference for people based on

group identity. In one study, judges (like other groups) demonstrated
the following common cognitive illusions:64
1.
Anchoring (making estimates based on irrelevant starting

points);65
2.
Framing (treating economically equivalent gains and losses

differently);66
3.
Hindsight bias (perceiving past events to have been more

predictable than they actually were);
4.
Representativeness (ignoring important background

statistical information in favor of individuating
information); and
5.
Egocentric biases (overestimating ones own abilities).
The following conclusions drawn from cognitive science research

provide judges with valuable insight into the human vulnerability to
unintended bias.
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
C. Guthrie, J. Rachlinski, and A. Wistrich, Inside the Judicial Mind (2001) 86

Cornell L. Rev. 777.
65
For instance, if a class of students is asked whether the Mississippi River is longer
or shorter than 2,000 miles and then asked the rivers length, and a second class is
asked whether the Mississippi River is longer or shorter than 500 miles and then
asked the rivers length, the first class will invariably provide answers that are higher
than those given by the second class.
66
For instance, most people will prefer a certain $100 gain to a 50 percent chance of
winning $200. On the other hand, most will prefer a 50 percent chance of losing
$200 to a certain loss of $100. In other words, people tend to make risk-averse
decisions when choosing between options that appear to represent gains and riskseeking decisions when choosing between options that appear to represent losses.
67
R. Brown, Prejudice: Its Social Psychology (1995), p. 39.
10-3
The human mind tends to organize everything, including people, into

categories. Social scientists believe that this mental process may have
prehistoric roots, ensuring the survival of our genetic code. Today it
translates into social categorization, or grouping people based on any
number of characteristics, including race, ethnicity, skin color, gender,
age, sexual orientation, physical and mental abilities, religion,
economic status, language ability, education level, and so forth.
Within a fraction of a second of encountering another person, human
brains register automatically and without conscious awareness that
persons race, sex, and age. Our brains take short cuts to deal with,
organize, and simplify a complex world. These are sometimes referred
to as heuristics.
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.
There should be institutional support for the measures

designed to promote the contact;
2.
The contact should be of sufficient frequency, duration, and

closeness to permit meaningful relationships to develop
between members of the groups concerned;
3.
As much as possible, the participants in the contact

situation should be of equal status; and
4.
The contact should involve cooperative activity.68
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
Ibid., pp. 26869.
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.
Implicit Bias Affects Even Nonverbal Behavior
Research indicates that the extent of teachers differing expectations

about girls and boys abilities to learn various subjects is directly
correlated to girls and boys subsequent actual learning in those
subjects.69
This phenomenon has been repeatedly demonstrated in studies of the
interview process. Without knowing the purpose of these experiments,
interviewers consistently sit farther from, are less friendly to, make
more speech errors, and take less time with interviewees who are
members of disfavored groups. Conversely, interviewees who are
interviewed by experimenters who are instructed to exhibit these
behaviors deliberately mirror the behaviors.
69
M. Palardy, The Effects of Teachers Expectations on Childrens Literacy

Development (1998) 35(4) Reading Improvement 18486; P. Murphy, and E.
Whitelegg, Girls and Physics: Continuing Barriers to Belonging (2006) 17(3)
Curriculum Journal 281305.
10-6
I.
Implicit Bias Increases Under Certain Circumstances
These circumstances include stress, time pressure, distraction,

boredom, absence of accountability, and lack of motivation to be fair
and accurate.
This poses real challenges for judges, who are often under stress, lack
time, and are distracted and bored.
Of course, judges are extremely motivated to be fair and accurate.
However, the possibility of implicit bias may arise more in cases with
self-represented litigants with no intermediary lawyer to facilitate or
carry out the communication, or when some judges may feel less
accountability where there is less likelihood of an appeal.
In one interesting experiment on accountability, subjects who were
convinced that a (bogus) skin electrode apparatus could detect their
true feelings were far more willing to report socially sensitive
attitudes and stereotypes than those not connected to electrodes.70
J.
Emotional State Can Also Influence the Tendency to
Implicit Bias
Psychologists investigating the link between emotions and prejudice
have found that anger increases the likelihood of a negative reaction to
members of a different group and that sadness or a neutral emotion
does not.
They have also found that the responses of happy people are quite
similar to those of angry peopleboth are more likely to draw on
negative stereotypes when judging guilt or innocence. Sad people
may have been in a frame of mind that led them to evaluate the case
histories more slowly and to reach more judicious conclusions. Sad
people were, if anything, biased in favor of those linked with negative
stereotypes.
70
Brown, p. 211.
10-7
III. Implications for the Judicial Fact-Finding and

Decision-Making Process in Cases Involving SelfRepresented Litigants
Therefore cases involving self-represented litigants raise the usual
unintended biases that judges have to consider in all casesbiases
such as race, gender, language, and economic status. The stereotypes
to which we are all vulnerable may be triggered more easily during
stressful, high-volume, repetitive, time-pressured, tiring calendarsall
too often hallmarks of calendars involving self-represented litigants.
Moreover, this likelihood might become even greater in the absence of
attorneys who normally act as intermediaries between the judge and
the litigant and who also bring to the courtroom certain distancing
formalities of language, discourse style, and interaction.
In addition to these usual biases, the issue of self-representation can
itself bring up various attitudes and assumptions on the part of judges.
Some of these include the following beliefs:
1.
2.
3.
4.
5.
6.
7.
8.
High-volume/high self-represented litigant calendars are

punishment assignments;
Self-represented litigant calendars are not real judge
work;
Self-represented litigants are unable to effectively
represent themselves and are usually unprepared, and
their pleadings and papers are unintelligible, do not raise
relevant issues, or both;
Self-represented litigants are less educated if not illiterate;
Self-represented litigants lie;
Cases and calendars where one or both parties are selfrepresented are longer, slower, more stressful, more
frustrating, often volatile, and sometimes unsafe;
Hearings in which one side is represented and the other is
not are prone to numerous evidentiary challenges and
accusations of judicial impropriety when efforts are made
to level the playing field; and
If they really wanted to, self-represented litigants could get
a lawyer.
The kernel of truth notion asserts that stereotypes and assumptions

about people must be based on something, so there must be a kernel
of truth in each of them. Although some stereotypes (not all) reflect a
real difference in averages between groups, it is obvious that
10-8
stereotypes are unreliable as a basis for making judgments about

individuals.
We also need to remember that litigants come to court with various
expectations and biases and that those assumptions and biases may
also affect how they act in the courtroom.
I use a script at the beginning of my domestic violence
calendar. It takes about 10 minutes, and I use it to explain
how the day is going to go and set the tone. I dont even
have to think about it any more. I watch to see whos
sitting with who, who has a little kid that well want to get
out early, who is really upset, whos laughing at my jokes.
It also gives them some time to get used to the idea that
Im a Chinese American woman hearing their case.
Judge
IV. Specific Techniques to Minimize Implicit Bias

How do we counter these implicit biases to treat everyone as an
individual who deserves his or her day in court? Research has shown
that the following techniques minimize the potential impact of implicit
bias. Strategies that judges report using are in boxes.
A.
Stay Motivated to Be Fair and Accurate
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
Again, the justice system incorporates various safeguards against the

operation of personal bias, including, in most cases, the availability of
a record and the opportunity to appeal. Judges have also suggested
reviewing their own rulings or decisions for patterns or asking a
colleague to periodically observe their courtroom communication or
review a difficult ruling.
Have someone else review my decision if I feel it may
contain bias.
C.
Take Ample Time
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.
Minimize Distraction and Pay Attention
Strong emotion, stress, or distraction increase the likelihood of relying

on automatic responses. Ones physical and mental health will
influence ones ability to stay focused.
10-10
Focus hard on the argument being presented to counteract

boredom/stress/time pressure.
Avoid becoming overworked; when overworked, I revert to
rote/easy methods of accomplishing things. Bias can creep in
when taking the easy way out.
E.
Be Conscious of Difference
This may seem somewhat counterintuitive and even dangerous,

because we are taught that justice is blind, that we live in a color
blind society, and that we must treat everyone the same. In reality,
we are acutely aware of differences whether or not we consciously
acknowledge them, and we are more likely to make judgments based
on implicit biases related to those differences if we attempt to ignore
them. Recent research indicates that once the defendants race in a
jury simulation is explicitly referred to and jurors are made aware of
the potential for their race bias, they are better able to correct for it.71
I affirmatively recognize that I might have a bias about a
person and then consciously put it aside.
F.
Think About Thinking
To engage in an intentional thought process, judges might make a

conscious effort to wait until all facts are present before judging, as
jurors are admonished to do.
Question basis for determinationsassumptions or facts?;
question inferencesaccurate or caused by bias?
71
S. Sommers and P. Ellsworth, White Juror Bias: An Investigation of Prejudice

Against Black Defendants in the American Courtroom (2001) 7(1) Psychology, Public
Policy and Law 201229.
10-11
I try flippingpretending that the litigants have switched

roles. For example, if a litigant is not well-dressed, I pretend
that the other litigant is dressed that way and ask myself if I
would rule differently.
G.
Confront Cultural Stereotypes
Cognitive scientists have developed an online experimental tool, the

Implicit Association Test (IAT), that assesses unconscious attitudes, or
implicit bias. Data gathered from over 2.5 million online tests reveals,
for example, that at least 75 percent of test takers show an implicit
bias favoring the young, the rich, and whites.72
Readers are encouraged to take the IAT by going to
www.implicit.harvard.edu. Most test takers report at least some
disparity between their conscious intention and the test results. At the
very least the test may direct ones attention to areas in need of selfscrutiny.
Cross-check analysis (e.g., sentence) with substitute
category (male for female, or race).
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
M. R. Banaji, M. Bazerman, and D. Chugh, How (Un)Ethical Are You? (December

2003) Harvard Business Review 5664.
10-12
periodically calling to mind positive representatives of groups that are

routinely stigmatized by negative cultural stereotypes.
Get into the community more often with diverse groups.
Educate myself about other cultural norms. Take time to talk
to interpreters, even if the litigant does not appear, about the
culture and language nuances as they relate to the issues we
handle.
I.
Maintain Constant Vigilance
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.
I know that Im not going to understand all of the cultures in

the world, but I do try to learn about the cultures of people in
my community. I go to community events, read books about
their cultures and affirmatively work to find out more about
their lives. One of my favorite books is The Spirit Catches You
and You Fall Down, which Ann Fadiman wrote about the
Hmong culture in the Central Valley.
Family law judge
73
Ibid., p. 64.
10-13
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.
10-14
CHAPTER 11: ADDRESSING LITIGANT MENTAL HEALTH

ISSUES IN THE COURTROOM
Introduction
I.
Current Scientific Perspective on Mental Health

Problems
11-1
11-1
A.
The Roots of Mental Illness
11-2
B.
The Burdens of Mental Illness
11-2
C.
Common Responses to Mentally Ill Litigants
11-3
Strategies for Responding to These Challenges
11-6
II.
A.
The Importance of Case Specificity
11-6
B.
Responding to Seriously Impaired Litigants
11-6
C.
Dealing With the Chronically Mentally Ill
11-7
D.
Excessively Frightened or Paranoid Litigants
11-9
E.
Argumentative or Unhappy Litigants
11-9
F.
The Importance of Disengagement and of Saying No

Calmly
11-11
III.
Community Resources
11-12
IV.
Strategies for Coping With Difficult Cases
11-13
A.
Keeping Perspective
11-13
B.
Avoiding Isolation
11-13
Conclusion
11-14
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.
The Roots of Mental Illness
Historically, mental health problems were thought to be behavioral in

origin and nature. Modern medical research has taught us that mental
health problems are the result of biological brain disorders that are
diagnosable and treatable. Effective treatment, however, is often
difficult for many to access. Generally, the behaviors exhibited by
those with mental problems are symptomatic of their brain
dysfunction.
B.
The Burdens of Mental Illness
Litigants with mental health problems can be expected to carry

significant psychological burdens as well. Some examples of such
burdens are the following:
C.
1.
Adjusting to the Disease. Living with the disease is

frightening. Mentally ill individuals are frequently
misunderstood and isolated. They often feel like a
disappointment or a burden to loved ones, and can also
worry about harming them.
2.
Social Stigma. Mental illness carries a social stigma that

depletes a persons sense of self-worth. Mentally ill
individuals often have been subjected to shaming, blaming,
and guilt-inflicting behavior by others.
3.
Fear. Litigants with mental health problems can be

expected to be significantly fearful in the courtroom. How
they exhibit this stress will vary from individual to
individual.
Common Responses to Mentally Ill Litigants
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
E. Kohler, C. Keysers, M. A. Umilta, L. Fogassi, V. Gallese, and G. Rizzolatti,

Hearing Sounds, Understanding Actions: Action Representation in Mirror Neurons
(2002) 297(5582) Science 846848; L. E. OConnor, Pathogenic Beliefs and Guilt in
Human Evolution: Implications for Psychotherapy. In Genes on the Couch:
11-2
mechanism for human beings, as well as other highly social mammals,

accounts for such things as our drive to hold our families together, to
empathize with others whether or not we have consciously chosen to
do so, or to commit acts of heroism entailing enormous self-sacrifice
without much prior conscious analysis.
It also helps account for the varying levels of pain and discomfort,
sometimes referred to as survivor guilt, that we feel when exposed to
those less fortunate than ourselves. Examples vary all the way from
the horror of witnessing an injury accident, to listening to the
testimony of a person who has been brutalized, to avoiding a homeless
person trying to sell papers on the street, to how we feel generally
around sick people or while visiting in hospitals.75
Judges must be able to recognize feelings of discomfort they may have
in dealing with a litigants mental health issues. Many people feel
uncomfortable working with such individuals. (This can be just as true
for mental health professionals as for lawyers and judges.) The
survivor guilt response can account for much of this discomfort.
This feeling can arise fairly easilyprompted by the litigants
appearance, speech, or demeanor, or some bizarre act on their part. A
judge may be only vaguely sensitive to the feeling, particularly while
working on a busy calendar, and will simply feel more pressured or will
experience impatience or some other uncomfortable state.
Unfortunately, the emotional defenses against these uncomfortable
feelings are such things as anger, frustration, or blaming the litigant.
These undesirable responses are particularly likely to appear when a
judge is unaware of, or does not understand the reason for, his or her
own discomfort and acts out on those feelings perhaps because of
being distracted by a busy docket.
Judges are required to work with litigants with mental health problems
in situations that can cause significant frustration. It is important that
such feelings not get in the way of decision making.
Unfortunately, it is not always possible for the court to intervene in
some way that will be helpful to a litigant. Litigants with mental health
Explorations in Evolutionary Psychology (P. Gilbert and K. Bailey, eds., London:

Brunner-Routledge, 2001), 276303.
75
L. E. OConnor, J. W. Berry, and J. Weiss, Interpersonal Guilt, Shame and
Psychological Problems (1999) 18 Journal of Social and Clinical Psychology 181203.
11-3
I was handling a case with a really resistant defendant who just

wasnt complying with any of my orders. During hearings he would
often fail to pay attention when I spoke to him, would not respond
directly to questions, and seemed unwilling to cooperate with
reasonable requests. I tried sanctioning him, but that didnt seem to
make a difference.
In reviewing his file, I saw that his mother had only been 20 years old
when he was born and had been repeatedly incarcerated for alcoholrelated offenses. It occurred to me that he might be suffering from
fetal alcohol syndrome and that maybe his failure to comply with
orders was as a result of an inability to do so.
I changed my approach from treating him as willfully noncompliant to
someone who was going to need coaching to make it through the
legal requirements. I had him come to court more often and started
praising him for anything positive that I could find that he had done.
Lo and behold, he actually started following my orders. Im not a
doctor and dont know if thats really what his situation was, but
realizing that there might be a physical cause for some of his actions
helped me not take what he was doing so personally and helped me
be more creative in how I responded to it.
Judge
issues are more likely than most to ask the court for relief that is
simply not available.
Being unable to help a litigant, or even to help him or her understand
why the proceedings are going the way they are, is highly unpleasant
for almost any judge. If this occurs frequently, judges can become
vulnerable to withdrawing empathy from the litigant(s) altogether in an
attempt to avoid the emotional stress of the situation.
Even when a judge is able to be helpful, litigants are not always able to
acknowledge the help they are receiving. They behave in an
argumentative or otherwise difficult manner toward the judge, which
may add to the judges frustration and ultimately create resentment.
There are numerous reasons why individuals with mental illness may
not seek or accept treatment that has been offered to them. When
litigants appear as if they do not want help, it will stem from one or
both of two sources: either a negative prior experience with mental
health treatment or their own symptomology.
11-4
Although improvements have been made, many antipsychotic

medications have serious and permanent negative side effects. Many
persons with serious chronic mental illness are simply not capable of
keeping up a medication regimen and routinely making appointments
on time, and so reasonable outpatient treatment is not feasible.
Furthermore, they cannot cope with the social interactions necessary
to manage handling a serious chronic illness on their own and often
simply give up on the mental health system.
Some individuals with mental health issues, and often those addicted
to drugs and alcohol, will not seek treatment because they have lost all
hope of being able to recover. Often this is expressed as denial of the
problem. This denial disappears quickly as the possibility of recovery
becomes more of a reality.
The overlap with the lack of medical detoxification facilities is clear.
When medical detoxification is available, the resistance to treatment
declines considerably.
If a judge can communicate to litigants his or her genuine belief that
recovery is possible, the effect can be dramatic in breaking through
addict hopelessness and denial. Drug treatment courts have found
coercive treatment to be effective for many addicts, particularly when
conducted in treatment courts presided over by genuinely supportive
judges who can communicate their confidence in the individuals ability
to get and stay clean and sober.
Not as personally related to the litigants is the fact that the legal
system has become a frontline of mental health treatment. People who
are in trouble, who need help far beyond what the court has
traditionally provided, are now appearing as self-represented litigants.
Court staff, self-help centers, prisons, and county and state jails are
charged with taking care of the chronically mentally ill, the suicidal and
high-acuity mental crises, the drug addicted, and those without
resources. There are simply not enough places to refer people for the
help they need.
Unless they are abusing alcohol and other drugs, most people with
mental illness are no more violent than people without mental illness.
Nevertheless, if feelings of discomfort rise to the level of fear, it is
imperative to pay attention to that feeling. Judges must put their own
safety, and that of their staff, above other considerations. A litigant
11-5
with mental health issues may act in a threatening manner simply to

see how a judge will respond, hoping that the judge will remain calm
and in control. Or the litigant may be threatening as a warning that
they are about to actually go out of control. There is no way to know
for sure. Security must be the priority.
II.
Strategies for Responding to These Challenges
A.
The Importance of Case Specificity
The following suggestions are generalizations and are given in hopes of

being helpful; however, judges should understand that there are no
formulas for dealing with litigants mental health problems. What works
well with one litigant may be completely ineffective or even harmful to
another with the same disorder. While medical professionals have
clustered mental health symptoms into patterns of diagnoses, there is
no patient profile that predicts anyones interpersonal reactions in any
particular situation. The most important thing is to pay careful
attention to each individual. Each case is different and requires the
judges specific attention and assessment.
B.
Responding to Seriously Impaired Litigants
Judges may be called on to make certain kinds of mental health

judgments from the bench, even when not in civil commitment or
other mental health court assignments. Progress of a case may have to
be deferred until the mental health issue has been addressed.
1.
Hospitalization. Most jurisdictions have similar criteria for

determining whether a person should be taken involuntarily
to an emergency inpatient facility.
a.
b.
c.
2.
Is the person a danger to himself or herself?

Is the person a danger to others?
Is the person so impaired as to not be able to tend to
the basic necessities of life?
Law Enforcement. If a judge perceives that any of these

factors is applicable to litigants in the courtroom, he or she
may want to request the immediate assistance of local law
enforcement. In most states, law enforcement officers are
11-6
trained in the assessment required for admission to an

emergency psychiatric facility, or they know where to
promptly obtain such an assessment.
C.
3.
Adult Protective Services. If the litigant is not going to fit

the hospitalization criteria, but is still so seriously impaired
as to prevent meaningful participation in the case, a call to
the local Adult Protective Services might be helpful in
getting services for the litigantincluding legal services.
4.
Guardian Ad Litem. A seriously disordered litigant may

have a friend or family member who would be willing to
serve as a GAL. The court should consult with local legal
services programs, public defender offices, and local bar
association pro bono programs to determine how to get
qualified legal representation for guardians ad litem and to
have review of the appropriateness of the proposed
guardian. The court should not proceed with a guardian ad
litem unless it is clear that the nature of the disorder
prevents the litigant from proceeding on his or her own.
5.
Public Guardian. A call to the public guardian might also

result in assistance for the person, possibly through the
provision of a GAL or a conservatorship proceeding.
Dealing With the Chronically Mentally Ill
Often, persons suffering from chronic mental illnesses bring matters to

the court. They are either asking for help from the court or are the
subject of an action for relief by some other person. The following
approaches may be helpful.
1.
Relieving the Litigants Anxiety. Judges might think of

themselves as anxiety relievers for a chronically mentally ill
person. A litigant may be suffering from a delusion or
hearing voices, or may be in some other equally frightened
state of mind.
2.
Seeking Help for Delusions. Mentally ill litigants might ask

the court to help them with their delusions. For example,
they might ask the court to stop the government from
implanting a microchip in their tooth; to restrain their
neighbor from coming through the wall at night while they
11-7
sleep; or to offer relief from the poison the phone company

has put into their air vents.
3.
Paying Respectful Attention to the Litigant. The litigants

will be paying close attention to whether the judge is trying
to simply get rid of them. They have most likely had
many experiences with people being frightened by them
and trying to dismiss them as quickly as possible, and so
are highly sensitive to this sort of treatment.
4.
Using Staff to Talk to Litigants. If there are self-help

support people available, they may be able to spend some
time with the litigants, work with them, and help find
useful resources for them.
5.
Sticking Strictly to Factsand Being Honest. The judge can

say that the litigants story sounds unusual; that he or she
has never heard of the government implanting chips
before, and so forth. This can be done without directly
dismissing the persons own sense of reality. There is no
need to verbally label the person as crazy or directly point
out his or her mental illness. Point out what evidence
would be needed to get the relief requestedis it possible
to get an x-ray from a dentist showing the chip in the
tooth? a photograph of the neighbor coming through the
wall? or an analysis of the poison air from the vent? In
asking for this proof, the judge is merely asking what he or
she would ask of anyone. Once this is explained to litigants
with mental illness, they generally accept this information
as an indication that they are not being singled out.
6.
Making a Legal Service Referral. If the litigant is making a

request for relief from the court, a referral to a community
legal services resource or the local pro bono program
would be enormously beneficial. If the litigant is the
subject of a request for relief by another, this referral
becomes even more critical.
7.
Making a Social Service Referral. If the person seems open

to suggestion, it may be possible to make a referral to
some local mental health resource. In making such a
referral, the judge should make it clear that he or she
wants to be helpful and is not being disapproving or
punitive. For example, the judge might say, I think you
11-8
might be able to get assistance at County Behavioral

Health rather than I think you should go to . . . , as if
the judge had diagnosed the litigant. The individual,
however, may simply be too fearful to be open to such a
suggestion.
D.
Excessively Frightened or Paranoid Litigants
Most litigants are anxious about being in a courtroom. Self-represented

litigants who are excessively frightened or even paranoid can be
particularly challenging for judges because it can often be difficult to
question them. A litigant may resist answering the questions the judge
asks.
E.
1.
Not Pushing. Pushing for answers by the judge may make

the problem worse.
2.
Stepping Back. In stepping back rather than increasing

pressure on the litigant, the judge can redirect the
conversation or take a brief break and try again.
Aggressive questioning is likely to fail and can lead to an
increasing sense of struggle between the judge and the
litigant. This type of courtroom tension is
counterproductive for everyone.
3.
Using Staff. If there are self-help support staff available,

perhaps they can take time to work with the litigant while
the judge proceeds with other matters.
4.
Being Realistic. Judges should be prepared for the fact that

they may not get the information they need from the
litigant. The litigant simply may not be able to comply.
Accepting and acknowledging this reality will contribute far
more to courtroom control than protracted arguing.
Argumentative or Unhappy Litigants
Some litigants demonstrate their illness to the court by being

completely incapable of acknowledging help. No matter what the judge
does, it will be wrong. Regardless of the amount of help offered, such
litigants may insist that they have not been helped at all. They may
say things like the following:
11-9
1.
2.
3.
4.
5.
You arent really helping me;

You dont care at all, Im just a number;
If I dont get help soon . . .;
So you are saying they can do anything they want . . .;
and
So you dont care if my children are safe.
Appropriate and helpful responses include the following:

1.
Not Taking It Personally. Judges should not take comments

such as these personally. Litigants tend to test judges the
same way they test doctors, therapists, and other
authorities to see how the authority will respond. These
sorts of comments from litigants tend to make the recipient
feel bad, like a failure, disrespected, defensive, or some
other negative thing that the litigant himself or herself has
repeatedly felt. It usually mirrors some experience that
they have had in their lives that is beyond the inquiry of
the court. The behavior is symptomatic of the illness and
not a sign of personal disrespect.
2.
Relaxing. When a judge can be aware of this dynamic, it

makes a productive response far easier. A relaxed, calm,
firm, and nonreactive or nondefensive response from a
judge is the best reaction available.
3.
Engaging and Listening. The litigant needs to know that the

judge is listening and paying attention.
4.
Expressing the Desire to Help. Litigants place a great deal

of weight on their perceptions about a judges motives
toward them.76 Judges should expressly show that it is the
courts intention to help them and to be of value to them. A
judge might say:
a.
b.
c.
76
How can I help you today?

I want to be helpful to you.
Im sorryI just cant think of anything else to help
you.
Tyler, What Is Procedural Justice? p. 103.
11-10
5.
Being Firm. Litigants should not be allowed to escalate into

angry or genuinely disrespectful behavior toward the judge
or other courtroom staff.
6.
Disengaging When Necessary. Do not hesitate to take a

recess to stop or redirect unacceptable behavior.
Sometimes a brief break is all it takes.
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.
Trusting Oneself. Judges can rely on their own feelings and

perceptions to tell them what is happening. If judges find
themselves feeling uncomfortable during an exchange with
a litigant, it is almost certain that the litigant is also
uncomfortable. Something needs to be changed. Judges
should make themselves feel as relaxed and comfortable in
the courtroom as possible. When the judge feels genuinely
comfortable, the chances are better that the litigants will,
too.
2.
Setting Limits Calmly and Firmly. Litigants do not really

benefit from being allowed to go on endlessly, arguing with
a judge. Certainly, giving litigants their voice in a hearing
is central to any justice proceeding. However, when a
litigant cannot refrain from repeating him or herself,
arguing with or even verbally abusing the judge or
opposing party, the judge must put a stop to it. In many
cases, the longer that litigants are allowed to continue with
this behavior, the more anxious and upset they get.
Judges actually help litigants by setting limits on
unacceptable behavior. By keeping such behavior to a
minimum, judges are reducing the chances that it might
affect their decision-making process.
Judges are responsible for maintaining a calm and
comfortable process for everyone else in the courtroom.
Being able to relax and say no to an unhappy or angry
litigant without becoming defensive or unkind
11-11
demonstrates to the rest of the courtroom that the judge is

clearly in control of himself or herself, and of the situation.
Disengagement can be made in various ways, for example:
a.
b.
c.
d.
Im sorry, but we are simply out of time.

I have to leave enough time for the other people
here in the courtroom.
I would like you to talk with the (court staff) person
while I move on to the next case.
I am going to take a short recess.
III. Community Resources

Knowledge of available resources in the community and of those
working with litigants mental health issues helps the judge and the
court as a whole manage these issues.
1.
Resource Guides. Each court should have a guide for

judges on what culturally competent and multilingual
resources are available in the community to assist litigants
with mental health and related issues.
2.
Collaborative Courts. In some cases, it may be possible to

establish specialized calendars, such as drug treatment
court, mental health court, or domestic violence court,
during which particular social service providers can be
present to assist litigants in the courtroom.
3.
Lack of Community Resources. If courts are located in

communities without many legal service or social service
resources, it is a good idea to locate the nearest place
where services are available. Partnerships, supported by
computer, telephone, and video-conference technology,
may be able to help.
11-12
IV. Strategies for Coping With Difficult Cases
A.
Keeping Perspective
One way that judges can become vulnerable to added stress is by

losing perspective on the degree of power they actually have to help a
litigant with mental health issues. If judges expect too much from
themselves or from their roles as judges, or if they accept unrealistic
expectations placed on them by the litigants, the result is increased
stress and lower job satisfaction. While it is understandable that one
would feel unhappy about matters such as those listed below, judges
should not hold themselves responsible for fixing them. Feelings of
guilt and frustration at not being able to change things over which they
have no control can become a problem for judges if not recognized. It
is useful to remember the following:
1.
2.
3.
4.
5.
B.
Judges will not always be able to be helpful to litigants.

Judges will not always be able to make litigants believe
that the court cares about them, even when it does.
Judges cannot make up for the lack of mental health
treatment services available in the community, but may
provide impetus to further address the need. Seek help
from the Judges Leadership Initiative, a group of judges
interested in mental health issues
(http://consensusproject.org/JLI/).
Judges cannot make up for the lack of legal assistance
services available in the community.
Often there may simply not be a good solution available to
a judge.
Avoiding Isolation
Isolation is a commonly cited factor in research on judicial stress.77

Working with others in the courtroom is helpful in relieving courtroom
isolation. Naturally, rigorous care must be paid to the constitutional
safeguards for the litigants and protocols developed so as to avoid
such things as ex parte communications. Self-help programs can place
attorneys and other legal assistance staff in courtrooms to assist with
77
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
procedural information, help parties reach settlements, and write up

the courts orders. Having self-help staff in the courtroom to whom
litigants can be referred works to relieve some of the isolation of
judging. In the collaborative court models, often there are social
service providers in the courtroom to whom litigants can be referred.
This also helps relieve isolation. Studies have found that judges who
are involved in community work outside the court report higher levels
of job satisfaction.78 Judges should try to participate in community
activities, join professional work groups and committees, and
communicate with family and friends.
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.
78
P. Fulton Hora and D. J. Chase, Judicial Satisfaction When Judging in a

Therapeutic Key (20032004) 7(1) Contemporary Issues in Law. p. 19; J. P. Ryan,
A. Ashman, B. Sales, and S. Shane-DuBow, American Trial Judges (New York: Free
Press, 1980).
11-14
CHAPTER 12: JUDICIAL LEADERSHIP IN ACCESS TO

JUSTICE
Introduction
12-1
I.
Judicial Leadership and the Judicial Role
12-1
II.
Sensitivity to the Value and Potential of the Roles of

Others
12-3
Building a Consensus Within a Court for Access

Innovations
12-3
Building and Reinforcing Staff Support for Such

Innovations
12-3
C.
Working With the Bar to Build Joint-Access Innovations
12-4
D.
Developing Programs That Engage Judges in Access

Innovations
12-4
A.
B.
E.
Encouraging and Supporting Community Initiatives That

Facilitate Access
12-4
F.
Envisioning the Potential of Access to Justice for All
IV.
Supporting Many Kinds of Innovation
12-5
12-5
A.
Self-Help Services
12-5
B.
Simpler Procedures
12-5
C.
Pro Bono and Limited Scope Representation Programs
12-6
D.
Community-Focused Court Planning
12-6
E.
Meetings on Self-Represented Litigants
12-6
F.
Speeches to Community Groups
12-7
G.
Reforms of Internal Courtroom Procedures
12-7
H.
V.
Community Resources for Litigants
12-7
Access for the Self-Represented as Part of an Overall Access

Strategy
12-8
Conclusion
12-8
12
Judicial Leadership in Access to Justice

Introduction
In the end, it is simple: judicial leadership is indispensable.
Court systems are highly complicated organizations, perhaps
appropriately not conducive to rapid transformative change. Judges
are often the only players with the credibility, reputation, and leverage
to build the momentum needed to increase access for the selfrepresentedand indeed for all people.
This chapter explains that it is appropriate for judges to play this role,
both within the court and in the community beyond, explores some of
the ways that judges have exercised this leadership, and emphasizes
the importance of making sure that such leadership is part of a
comprehensive strategy for access to justice, not just for the selfrepresented but for all.
I.
Judicial Leadership and the Judicial Role
Some judges fear that engagement in the overall functioning of the

justice systemparticularly when it involves leadership in building and
inspiring partnerships with the bar, legal aid, and community
organizationsis inconsistent with judicial neutrality and therefore
with their role.
However, this role is critical to expand services and resources that will
allow the system to work effectively and to build resources so that
cases involving self-represented litigants can truly be decided on the
law and facts of the case.
12-1
As section 39 of the 2006 California Rules of Court, titled The Role of

the Judiciary, puts it:
Judicial participation in community outreach activities should be
considered an official judicial function to promote public
understanding of and confidence in the administration of justice.
This function should be performed in a manner consistent with
the California Code of Judicial Ethics. The judiciary is encouraged
to:
(a) Provide active leadership within the community in identifying
and resolving issues of access to justice within the court system;
(b) Develop local education programs for the public designed to
increase public understanding of the court system;
(c) Create local mechanisms for obtaining information from the
public about how the court system may be more responsive to
the publics needs;
(d) Serve as guest speakers, during or after normal court hours,
to address local civic, educational, business, and charitable
groups that have an interest in understanding the court system
but do not espouse a particular political agenda with which it
would be inappropriate for a judicial officer to be associated; and
(e) Take an active part in the life of the community where the
participation of the judiciary will serve to increase public
understanding and promote public confidence in the integrity of
the court system.
The reference to the California Code of Judicial Ethics underlines the
consistency between the code and such leadership and educational
activities. It also highlights the importance of being aware of the
demands of the code, by, for example, being careful not to give any
impression that the court is on one side or the other, or would show
favoritism to any parties, or that judges have pre-judged persons or
issues that may become before the court..
When the judge explains his or her role in any community or court
leadership activity, it reinforces the publics understanding both of the
courts commitment to access and neutrality and of the importance of
that commitment.
12-2
II. Sensitivity to the Value and Potential of the Roles

of Others
Whenever judges walk into the room, they bring an inherent credibility
possessed by almost no other professional. That credibility comes in
part from a presumed intellectual and moral capacity validated by their
appointment or election, and in part from an awareness of their broad
experience in making decisions in complex and important matters. But
it may come more than anything from the understanding of the
judges role as neutralthe belief that what the judge is saying and
doing is not driven by any self-interest or bias but by a considered
understanding of what the public interest requires.
Therefore those judicial leadership activities that make use of this
unique credibility are both most likely to be successful and most
valuable, in that through such activities judges can achieve changes
that no one else may be able to bring about.
Such activities are likely to include the following roles.
A.
Building a Consensus Within a Court for Access
Innovations
The unique credibility of a judge can help the staff and the courts
leadership focus on the ultimate purpose of the court as an institution,
as well as encouraging flexibility and creativity in support of those
innovations that will better serve that ultimate access purpose.
Matters such as budget, job descriptions, departmental
responsibilities, and inertia are less likely to provide insurmountable
barriers to change when judges promote the need for change or a
particular innovation.
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.
Working With the Bar to Build Joint-Access Innovations
Occasional rhetoric notwithstanding, lawyers deeply respect judges

and generally do look to judges for guidance on the direction of the
legal system. Judges are therefore ideally positioned to help both bar
organizations and individual lawyers expand their views concerning the
need for all persons to be able to access the justice system, to think
more broadly about their obligations as part of a profession committed
to the public interest, and to assess whether the bar might benefit
from new forms of attorney-client relationships such as limited scope
representation.
D.
Developing Programs That Engage Judges in Access
Innovations
It is a truism: judges listen to judges.
Judges are therefore indispensable in creating, marketing, and shaping
any programs that seek to assist judges in ensuring effective access to
the courts for self-represented litigants.
A wide variety of educational programs, seminars, writing, and
discussion about issues regarding self-represented litigants is
necessary to deepen the judiciarys collective understanding of
courtroom dynamics before the system is truly as effective as it can
be. Judges must lead these activities.
Moreover, the promotion of the judicial role in the kinds of leadership
activities described in this chapter is primarily a role for judges.
E.
Encouraging and Supporting Community Initiatives That
Facilitate Access
In the community, the judge brings a similar unique credibility and can
help convince community leadership of the courts integrity and its
interest in access.
12-4
F.
Envisioning the Potential of Access to Justice for All
More broadly, when judges speak about the importance of access to

justice, their perspective can resonate with a wide variety of
stakeholders.
IV. Supporting Many Kinds of Innovation

It is not surprising, therefore, that many judges find it rewarding and
effective to deploy their skills and credibility in support of the following
solutions.
A.
Self-Help Services
Self-help services remain the gateway to the courts and a major

guarantor of the smoothness of the courts entire operations.
Judicial credibility plays a major role in making sure that self-help
services are available throughout the court process and are properly
staffed and supervised by qualified attorneys. Judges can ensure that
self-help services are seen as part of the courts core infrastructure,
are integrated into the courts senior management structure, and that
the courts systems of evaluation and self-assessment include services
for the self-represented.
B.
Simpler Procedures
System simplification is a major challenge. Over the years processes

have acquired their own logic, their own constituencies, and their own
rationalizations. Often they are widely believed to be mandated by
external forces such as the legislature or the constitution, and thus not
subject to any reassessment. The result is often that processes that
are highly complicated and wasteful, and that result in sometimes
insurmountable barriers to access for the self-represented, are
considered off the table for discussion and revision.
Because judges are the experts on the primary sources of perceived
external mandate, and because they are the most respected sources of
authority in the court system, they are the logical ones to launch the
review and reform of these processes.
12-5
Such processes include paper flow, clerk and case management

processes, calendaring, and forms (to the extent that they are
developed locally).
C.
Pro Bono and Limited Scope Representation Programs
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.
Community-Focused Court Planning
The judges participation in community-based court planning sends the

strongest possible signal of the courts sincerity in its desire to listen to
the communitys agenda. Hearing from the community provides critical
information to the court as it seeks to appropriately serve all members
of the communityincluding self-represented litigants.
Such participation can also be educational for the community. The
judges clear voice in explaining the courts philosophy can do much to
legitimate the courts overall approach and insulate it against the
short-term attacks that unpopular rulings can trigger.
E.
Meetings on Self-Represented Litigants
As courts focus on self-represented litigant issues, and as they seek to

understand better what goes wrong for such litigants and how it might
be fixed, the judges participation brings a critical perspective lacking
in other court participants. The perspective of the problems the judge
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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.
Speeches to Community Groups
General educational programs, while not necessarily leading to specific

innovations, convey a clear message to the community about how the
court works and about general legal issues while exposing the judge to
community dynamics and perspectives. Business leaders will want to
know about small claims and other consumer matters as well as
services to which they can refer employees with legal concerns. Law
enforcement officers will appreciate the court understanding
challenges they face routinely as well as efforts to write orders that
are easier to enforce.
G.
Reforms of Internal Courtroom Procedures
In the courtroom the judge is supreme. Courtroom innovations,

whether in the way judges themselves manage hearings and the
receipt of evidence, or through new courtroom services for litigants
such as those that help prepare written orders or provide day-ofhearing unbundled assistance, depend on judicial support and energy.
They often have the added advantage of making the judges job
easier.
H.
Community Resources for Litigants
Judges also report that they have been able to expand resources
available to the litigants in front of them by:
1.
2.
3.
4.
Convening meetings with social services providers

(preferably with food). People come when the judge calls
the meeting.
Talking about the problems that the litigants face and why
it would be helpful to have social services programs in the
courtroom or to have easy referrals to services.
Asking the social services agencies what their needs are
and how the court can help them to provide services.
Thanking them for their efforts.
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V. Access for the Self-Represented as Part of an

Overall Access Strategy
Each step that a judge takes in support of access for the selfrepresented becomes part of the long-term collective agenda of the
court system as a whole.
In the long term, judges are generally most effective when they see
these steps as part of an overall strategy, not just for the selfrepresented, but for all those in need of access to justice.
Again and again, an innovation targeted initially at the selfrepresented, whether standardizing forms and processes, creating
additional courthouse assistance resources, redesigning caseflow
management, or changing the way the judge conducts hearings,
comes to be seen as assisting all.
The forms reduce costs by speeding legal work and facilitating
unbundling; the courthouse assistance programs serve lawyers, too,
as well as speeding courtroom procedures and reducing delay and
adjournments; changes in the conduct of hearings reduce frustration
and increase trust and confidence.
Thus a strategic view that always looks at the system as a whole
provides the best chance for change, the greatest chance for the most
effective change, and the greatest hope for broad stakeholder
participation.
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.
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Appendix
1. Sample Script: Traffic Arraignment Calendar
A-1
2. Sample Script: Traffic Court Trials
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3. Sample Script: Short Advisement
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4. Courtroom Referral to Family Law Facilitator
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5. Sample Script: Family Law and Domestic Violence Calendar
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6. PowerPoint Opening Script in Family Law Matter
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7. Your Trial Day Preparation for Tenants for Hearing
A-12
8. Photo Evidence Supplement
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9. Checklist for Review of Family Law Pleadings
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Additional materials are available at

www.courtinfo.ca.gov/programs/equalaccess
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
A-1
have not attended school for a violation that occurred within 18

months of the current violation. You must request traffic school at the
time of sentencing. If you fail to request it, then you will have to come
back to court on another date.
Finally, if you are going to show me proof that you now have a drivers
license, registration, insurance or that you have an equipment
violation signed off, please have that proof with you in your hand at
the time you come to the podium, and not in your wallet, purse, or
pocket. In that way we can move the calendar along more quickly for
everyone.
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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.
A-3
On [date of alleged offense] at approximately [time of the alleged

offense] did you issue a citation to [name of defendant] alleging a
violation of [nature of offense]?
Please tell me what you observed that led you to issue this citation.
A-4
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.
A-5
Courtroom Referral to Family Law Facilitator

Date: _________Department: __________________
Partys Name: ____________________________________
Case No.: ________________________________________
Preparation of Order After Hearing
Financial Mediation
Review File for:
_____________________________________________________
___________________________________________________
Explanation of:
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
________________________________________________
To Make an Appointment for:
Assistance With Judgment
Assistance With Settlement Conference Statement
Outside Referrals for:
Preparation of QDRO
Domestic Violence Assistance
Guardianship Assistance
Attorney Referrals
Additional Information/Assistance With:

Custody/Visitation
Spousal Support
Child Support
Other:
_______________________________
_____________________________
A-6
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.
A-7
If you have documents such as pay stubs, declarations, pictures, or

any evidence you want me to consider today, you must provide a
copy to the other side. Anything I see, everyone gets to see. So if
you have any such documents, please make sure the other side has
had a chance to review them before I call your case.
If Attorney Volunteers Appear for Voluntary Mediation
I also have two attorney volunteers who are here today to mediate
property disputes or other issues such as support. If both sides of
the case are here today and you have issues such as dividing
property, determining who should move out of the house, dividing
bills, determining support, and so forth, and you would like to meet
with one of the attorney volunteers, let me know. They cannot
represent either side, but they are very knowledgeable about how
these cases are generally decided, and they can help you reach an
agreement. It is not mandatory to mediate, but sometimes you can
resolve more issues than I can in the ten minutes or so that I have
today to hear each case. If you reach an agreement, the attorney
volunteer will write it up for you. If you cant reach an agreement,
you can come back to court, and I will hear your case. So when I
call your case, if you think you would like to try mediation, let me
know.
Dispose of All Defaults, Continuances, and Agreements
For those of you who are here today on issues of support, I will
need certain information to calculate the correct amount of support.
If you have not filed an Income and Expense Declaration, please
take the time now to complete the form. My bailiff can give you one
of the forms.
For those of you who are here today on custody issues and
visitation regarding your children, I need to explain how we handle
these cases. If you are unable to agree on these issues, the court
does require that the parents attend mediation. You will first attend
a mediation orientation program that is held on the first and third
Tuesday of the month. At the orientation program you will get an
opportunity to meet our mediators. They will discuss with you the
many different kinds of custodial arrangements and what kinds of
things work best for children of different ages. What may work for a
child of fourteen is not necessarily going to be the best plan for a
one-year-old. After the orientation program, you will be assigned to
A-8
an individual mediator who can arrange to spend a couple of hours

with you and assist you to reach an agreement. With the help of the
mediator, most people are able to reach an agreement that is in the
best interest of their children. If you are unable to reach an
agreement, the mediator will make a recommendation that will be
sent to me. The mediation process normally takes about three to
four weeks. So, when I hear your case today, I will not be making a
permanent order. I will just be making a temporary order for the
next three to four weeks. I would ask that you be thinking about
what you can live with for the next three to four weeks while you
are going through the mediation process. I am sure that with the
assistance of the mediator you will be able to come up with a better
plan for your children than the court can in the ten minutes I have
to hear your case today.
A-9
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Handling Cases Involving Self-Represented Litigants - A Benchguide For Judicial Officers - Judicial Council of California Center For Families, Children & The Courts

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Handling Cases

A Benchguide for Judicial Officers

Judicial Council of California

Copyright 2007 by Judicial Council of California/Administrative Office

Judicial Council of California

Members of the Task Force on Self-Represented Litigants

MR. ALBERT Y. BALINGIT

HON. MICHELE D. LEVINE

HON. VINCENT J. CHIARELLO

MS. SUZANNE CLARK MORLOCK

MR. NEAL DUDOVITZ

MS. SHAROL STRICKLAND

HON. DONNA J. HITCHENS

HON. ERICA YEW

MS. MARILYN K. JAMES

HON. LAURIE ZELON

HON. SUZANNE KINGSBURY

MR. JOHN ZORBAS

ADMINISTRATIVE OFFICE OF THE COURTS

MR. KEVIN CHEW, Administrative Coordinator

DR. DEBORAH J. CHASE, Senior Attorney

MS. TRACY KENNY, Legislative Advocate

MR. HARRY JACOBS, Senior Attorney

MR. JOSEPH NGUYEN, Administrative

STATE BAR OF CALIFORNIA

PRESIDING JUDGES ADVISORY COMMITTEE

CJER GOVERNING COMMITTEE

COURT EXECUTIVES ADVISORY COMMITTEE

Self-Represented Litigants: Who Are They and What Do They

Expanding Access to the Court Without Compromising

California Law Applicable to a Judges Ethical Duties in Dealing

Solutions for Evidentiary Challenges

Courtroom and Hearing Management

Special Due Process Considerations

10. Avoiding Unintended Bias

Ms. Maeve Elise Brown, National Housing Law Project, Oakland,

Hon. Mary Ann Grilli, Superior Court of California, County of Santa

Hon. Catherine Lyons, Superior Court of California, County of San

Ms. Bobbie Welling, Administrative Office of the Courts

and provides scripts and suggestions on managing a courtroom with

Chapter 1: Self-Represented Litigants: Who Are They

Why Do Litigants Represent Themselves?

Barriers to Self-Represented Litigants in the Court

The Barrier of Legal Language

The Complexity of the Clerks Office

Problems With Service

Legal Requirements That Are Not Intuitive

Procedural Rules That Vary Between Types of Cases

Courts Often Do Not Prepare an Order After a Hearing

Cases Can Be Dismissed Because of Litigants Failures to

Lack of Understanding of Orders and Judgments and How

No Right to Interpreters in Civil Cases

Why Do Litigants Represent Themselves?

Most self-represented litigants in civil cases give the following answers

I cant afford a lawyer; or

My case is simple enough to handle on my own.

legal aid attorneys in California is 10,000 to 1. Legal needs studies

II. Barriers to Self-Represented Litigants in the Court