Judicial Ethics and Assistance to Self-Represented Litigants
Goldschmidt, Jona, Justice System Journal
In the late 1990s, in response to rising rates of pro se litigation, courts first began to consider ways of improving the fairness of the legal process for self-represented litigants (SRLs). Programs were implemented to assist SRLs to secure pro bono counsel, and, if that was unsuccessful, to assist them to navigate the labyrinth of law and legal procedures in their quest for justice. Initially, the programs were modest ones, not requiring any or much funding for new personnel; they included replacement of traditional court forms with ones written in "plain English" and production of pamphlets and videos with simplified explanations of procedures.
Over time, these programs became more sophisticated and institutionalized. Many courts conducted instructional clinics tailored to specific actions, like domestic relations or landlord-tenant matters; set up kiosks for computer-drafting of pleadings; and established Web-based information and forms. The movement by courts toward enhancing access to justice has made great strides. The growth in the SRL population in our courts continues unabated, with the same phenomenon being experienced both nationally and internationally, especially in the Commonwealth countries.
Efforts to improve access to justice for this group are unexpected, given the substance and tenor of Supreme Court decisions that preceded the beginning of the pro se assistance movement. In Faretta v. California (1975), which reaffirmed the constitutional right of self-representation, the Court noted:
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open" (at 835).
"The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law" (at 834, n. 46)." And in McKaskle. v. Wiggms (1984), the Court found that the appointment of standby counsel for a pro se defendant did not deprive him of his right of self-representation. In so doing, the Court commented on the defendant's need for assistance as follows: "A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course" (at 183-84).
At the time of these decisions, SRLs were primarily found in criminal cases. However, every court has had, and continues to have, a small number of SRLs who brought civil actions; were considered pests, nuts, or kooks; and were generally an annoyance to the court. The Supreme Court itself has had as much experience with pro se litigation as any other court, if not more, especially from self-represented prisoners, and has had its share of "frequent filers" seeking in forma pauperis status. Thus, it was not surprising that these two Supreme Court decisions established the general rule adopted by all courts thereafter to the effect that all litigants, represented or not, were required to comply with the same rules and procedures, and that the court had no obligation to instruct SRLs on law or procedure. For the most part, this has continued to be the fundamental tenet of Supreme Court and lower-court jurisprudence in pro se litigation for the last thirty years.
Nevertheless, a few court opinions-primarily from federal courts-have begrudgingly recognized SRLs' need for information, assistance, and accommodation in the litigation process to ensure fairness. Several of these courts, reluctant to change their philosophy toward SRLs, raise the distinction between prisoners and nonprisoner SRLs to justify granting the former greater liberality on procedural issues than the latter. …