ENSURING ACCESS TO JUSTICE IN A NEUTRAL COURT

HOW WE THINK WE ARE

THE MODERN RULES OF ENGAGEMENT

Landscape of civil litigation NCSC 80% of civil caseloads consisted of contract cases, small claims, and “other civil” cases involving agency appeals and domestic or criminal-related civil matters. Tort and real property cases comprised only 7 and 1 % of civil caseloads, respectively. The vast majority of cases involved relatively modest monetary values. Three- quarters of the judgments entered were $5,200 or less, and only 357 cases (0.2% of more than 900,000 cases examined) had judgments that exceeded $500,000. Courts formally adjudicated (by way bench or jury trial, summary judgment, or arbitration) only 4 % of cases. Almost all of these were bench trials in low-value debt collection, landlord/tenant, and small claims cases. The most common dispositions for the Landscape cases were administrative dismissal (35%), default judgment (20%), and unspecified judgment (26%, many of which were likely default judgments). Conf of Chief Justices—resolutions to reduce cost and delay in civil justice. Landscape of Civil Litigation of State Courts, NCSC

Landscape At least one party was self-represented in more than three-quarters of the cases.

landscape The recommendations aim to create a future where: • Each case receives the court attention necessary for efficient and just resolution; • Teams of judges, court attorneys and professionally trained staff manage the case from filing to disposition; • Litigants understand the process and make informed decisions about their cases, • Justice is not only fair but convenient, timely, and less costly; • Modern technology replaces paper and redundancy; and • Civil justice is not considered an insider’s game fraught with outdated rules and procedures.

Conference of chief justices RESOLUTION 2 (2012): Rule 2.2 of the 2007 ABA Model Code of Judicial Conduct on impartiality and fairness addresses a judge’s role in cases involving self-represented litigants only in the “comments” section; and The Conferences agree that Rule 2.2 should specifically address cases involving self-represented litigants; NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators recommend that states consider adopting Rule 2.2 with the inclusion of the following emphasized wording: (B) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard; and

Louisiana code of judicial conduct Canon 3A (4) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including self-represented litigants, to be fairly heard, provided, however, that in so doing, a judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person.

COMMENTARY TO CANON 3A(4) (2013) Louisiana code of judicial conduct Steps judges may consider in facilitating the right of self-represented litigants to be heard, and which (they might find) are consistent with these principles include, but are not limited to: (1) making referrals to any resources available to assist the litigant in preparation of the case; (2) providing brief information about the proceeding and evidentiary and foundational requirements; (3) asking neutral questions to elicit or clarify information; (4) attempting to make legal concepts understandable by minimizing use of legal jargon; and (5) explaining the basis for a ruling.   Adopted the

Massachusetts judicial guidelines for civil hearings While the legal and ethical constraints upon the courts and the judiciary, such as those contained in the Code of Judicial Conduct, apply with equal force to cases involving self-represented litigants, judges have broad discretion within these boundaries. These guidelines have been developed to assist judges in recognizing the areas in which they have discretion and to assist them in the exercise of that discretion.

Delaware judicial guidelines (principles) 1.1 It is proper that Judges exercise their discretion to assume more than a passive role in assuring that during litigation the merits of a case are adequately presented through testimony and other evidence. While doing this, Judges shall remain neutral in the consideration of the merits and in ruling on the matter. 1.2 In adjudicating cases with self represented parties, as well as attorneys, judges should recognize that neutrality does not preclude communication between the fact finder and the litigants in the courtroom when it is intended to provide self represented parties with the opportunity to have their matters fairly heard according to law. 1.3 Asking questions, modifying procedures and applying common sense to obtain the facts necessary to adjudicate cases are tools to assure neutrality and unbiased process of law in the decision making required of all judges in the State of Delaware.

Judicial officer adoption of active neutrality

“FEAR IS THE PATH TO THE DARK SIDE “FEAR IS THE PATH TO THE DARK SIDE. FEAR LEADS TO ANGER, ANGER LEADS TO HATE, HATE LEADS TO SUFFERING.”

Changing hearts and minds 1. Judicial leadership Bench Bar Research regarding best practices 2. Judicial training Across all disciplines 3. Cannons/ Rules of Professional Conduct/ Appellate Cases 4. Bench guides/ Bench books/ Bench tools 5. SRL materials Available information for SRL’s Self-help resources: centers/ forms/ technology

“Decide you must, how to serve them best”