Ethics in Transition: Unrepresented Litigants and the Changing Judicial Role
Notre Dame Journal of Law, Ethics and Public Policy, Vol. 22, p. 367, 2008
Posted: 18 Jul 2010
Date Written: April 23, 2008
The flood of unrepresented litigants in civil cases over the past decade has caused a fundamental reexamination of the operation of many of our courts. The phenomenon has inspired conferences, publications, and websites, replete with information, analysis and guidance. The discussions occur amidst the backdrop of reports demonstrating the high incidence of unmet legal needs among the poor and working poor, as well as a desperate shortage of lawyers available to represent the poor. The focus on unrepresented litigants has forced a reexamination of the roles of the players in the legal system, who encounter large numbers of unrepresented litigants each day. Unrepresented litigants raise difficult issues for court clerks and court-connected mediators, for lay advocates and lawyers participating in assistance programs, and for lawyers dealing with unrepresented adverse parties. The court system’s response to the problems includes a reexamination as to how these players perform their roles.
Nowhere are the issues more challenging than for judges presiding over their cases involving unrepresented litigants. It is the judges, ultimately, who are responsible for the fairness of the proceedings before them and the court orders that emerge from their courtrooms. Judges preside over trials involving unrepresented litigants, a scenario that has received the most attention in the literature, but involves a smaller percentage of the dispositions. A more common disposition is a settlement negotiated by the parties, often in an unmonitored, hallway setting and subsequently given the court’s imprimatur. Despite the difficulty of the questions raised by these scenarios, and the frequency with which they arise, there has been relatively little scholarly attention to the topic. This article analyzes the shift over the past decade in attitudes toward the proper role of judges in handling cases involving unrepresented litigants. It begins with a brief examination of the traditional role of the judges, as evidenced by the Canons of Judicial Ethics and the cases addressing the proper judicial role. The article next discusses evidence indicating that the actual practice of some judges has varied far more than the texts of the decisions might reveal. The evidence also shows that our understanding of, and attitudes toward, the role of the judge has changed considerably. Given the fluidity of the judicial role, and the need for the courts to respond to the crisis they face with unrepresented litigants, the article ends with a discussion of why the active role is both necessary and permissible in certain contexts and the price of the failure to support such a shift.
Keywords: unrepresented, self-represented, pro se, ethics, judicial ethics
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