Neutral Arbiter or Guardian Angel: The Role of the Judge in Pro Se
North Carolina District Court Judges Conference
September 30, 2004
Commissioner Karen Adam
Pima County (Tucson, Arizona) Superior Court
Determining the judge’s role in litigation involving one or more pro se
litigants involves the seemingly insurmountable problem of managing
these important competing interests:
1. The judicial duty to provide a meaningful opportunity to be heard for all
2. The obligation to maintain impartiality.
3. The responsibility of ensuring that a lawyer doesn’t take advantage of
a pro se litigant.
4. The duty to make findings based on statutory requirements.
5. In juvenile and family law cases, to make decisions based on what is in
the best interests of children.
I. Pro Se Litigant Data
A. Nationwide, research indicates nearly 80% of all family
law cases involve at least one pro se litigant and 50%
involve two unrepresented parties.
B. The overwhelming majority of pro se litigation is in the
family law area. Generally, there are more pro se
litigants in simple, uncontested matters. However,
California statistics, likely mirrored elsewhere, are 50%
pro se custody cases.
C. Many reasons why litigants are pro se.
Sheldon and Murray:
1. Rise in consumerism.
2. The cost of lawyers and litigation.
3. Growing anti-lawyer sentiment.
4. The growth of do-it-yourself law businesses.
5. The widening jurisdiction of small claims courts
and expanded causes of action such as orders of
protection and injunctions against harassment.
6. The impact of TV Court—the Judge Judy effect.
1. Increased literacy.
2. A sense of rugged individualism
3. The breakdown of family and religious institutions
that formerly resolved many disputes.
4. 58% of the public recently surveyed believes they
would be capable of representing themselves in
court if they wanted to.
II. The History of Judging and the Adversarial System
A. English common law
1. No fact finding necessary in earliest forms of
dispute resolution because of the notion of divine
2. Parties presented their cases on their own to the
King, and later to his representatives who rode
circuit, carrying little benches on the back of their
horses—litigants approached the bench, told their
stories, and the kings’ rep made a decision.
3. Trials by jury replaced clergy based decision-
making between 12th and 18th centuries.
4. Two important principles from earliest modes of
a. The parties to the dispute were primarily
responsible for its resolution, and
b. Judicial control of litigation was restricted.
5. When jury system emerged, jurors were chosen
specifically because of their knowledge of the area
of the dispute. To encourage impartiality, jurors
were chosen from other areas beginning in 1470.
6. The legal profession began to emerge in the 12th
century when people could appear by substitutes
familiar with court procedures. Starting in the 14th
century, judges were chosen from that
7. Inns of Court were formed for training and
governance. Jurors’ investigatory roles
8. Rules of Evidence and Procedure developed to
prevent evidence that was misleading or
untrustworthy. Hearsay rule born.
9. By the 1640’s, the roles of judges and juries
reduced in favor of lawyers managing the
presentation of evidence.
10. Lead to adversary system.
B. Continental Europe—Roman Law
1. 13th century, active inquiry by judge.
2. Judges had broad investigative and evidence-
gathering abilities in addition to decision-making
and other authority.
3. Lead to the inquisitorial system.
C. United States.
1. Merchants wanted a common law approach based
upon precedent, rules, and passive judging to
ensure consistent and predictable results.
2. This resulted in concepts of due process and other
3. 1800’s, judges were openly partisan and limits
were sought. Strict rules of evidence and limits on
what judges could say to the jury at the end of the
case. Judges were prevented from taking active
4. Judges were in the pockets of big business and
regularly granted ex parte injunctions to break
strikes. “GOVERNMENT BY INJUNCTION” was a
political slogan of the time. [Origins of the scourge
of judicial activism]
5. Concept of neutrality was best exemplified using a
disinterested and passive fact-finder. Lawyers
became more powerful and judges less and less.
6. Early 1900’s were era of professionalism.
Lawyers had to have college degree to practice
and later a graduate degree, PhD required to
teach at university level, MD to practice medicine.
Bar Associations formed and membership
required for practice.
7. Adversary judges ensure that rules are followed.
They are passive and neutral.
8. “The greater the conflict between the parties, the
more strictly the court enforces the rules.” (p.7)
9. Unrepresented litigants lost in the development of
the adversary system, until small claims courts
devised, with relaxed rules of evidence and no
need for counsel. Same with domestic until it
moved into civil arena, with same evidentiary and
10. Come full circle—but now, with a complicated
system in place that places nearly insurmountable
barriers to meaningful participation by pro se
III. Problems Facing Pro Se Litigants
A. Out of Court or Pre-Trial Issues
1. Determining the elements of a cause of action.
2. Completing the proper documents.
3. Filing the documents in the correct courthouse.
4. Serving the pleadings to all of the parties and in
the manner required by law.
5. Responding in a timely manner.
6. Having matters set for hearing.
7. Meeting all deadlines for disclosure.
8. Disclosing the required information.
9. Executing on judgments.
10. Knowing whom to ask about all of the above
B. Solutions to the out-of-court problems are much easier
than solutions to the in-court problems. See V infra.
C. In Court Problems: Dealing with the Judge
1. Unfamiliarity with courtroom procedures.
2. No knowledge of the rules of evidence.
3. Facing an attorney or a well-prepared adversary.
4. Introducing documents.
5. Questioning witnesses, if they’ve been
6. Fear and intimidation.
7. Time limits and no ability to estimate how long it
will take to present the case.
8. Variance among judges in treatment of pro se
litigants—relaxed rules in one courtroom, strict
adherence in another.
. 9. Keeping emotions in check and remembering to
address the court and not the other party.
11.Knowing what to do after the trial is
over re: enforcement.
IV. Sources of Judicial Angst re: Pro Se Litigants
A. Judicial Canons of Ethics
1. Canons I, II and III require judicial independence,
avoiding the appearance of impropriety, and
performing duties impartially.
2. Concern that helping a litigant by asking
questions, providing information, or guiding the
admission of evidence will be construed as
violation of ethical rules.
B. Judges are lawyers first and philosophically devoted to
the adversary system. Change is hard. There is great
resistance to suggestions about reforming the
traditional adversarial roles or the complex rules which
C. Appellate precedents govern judicial behavior. Only
real guidance is to liberally construe pleadings.
1. USSC: Ferreta, Haines
2. “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 fro
a pro se defendant that would normally be
attended to by trained counsel as a matter of
course.” McKaskle at 183-184.
3. “Pro se cannot expect the trial judge to relinquish
his role as impartial arbiter in exchange for the
dual capacity of judge and guardian angel of the
defendant.” State V. Lashley, 21 N.C. App.
83,203 S.D. 2d 71 (1974).
4. “the [North Carolina Rules of Civil Procedure] must
be applied equally to all parties to a lawsuit,
without regard to whether they are represented by
counsel.” Goins v. Puleo, 350 N.C. 277, 281, 512
S.E. 2d 748,751 (1999); Shwe v. Jaber, 147 N.C.
148, 555 S.E. 2d 300 (2001); and State v. Vestal,
34 N.C. App. 610, 239 S.E. 2d 275 (1977).
D. Bar opposition to helping pro se litigants.
E. Impartiality is misconstrued as passivity.
F. Judicial responses are tied to certain cases and certain
types of litigants:(Engler)
1. Criminal cases=strict approach because the
litigant has the right to counsel and has CHOSEN
to be pro se.
2. Same approach for repeaters who file overbroad
and unintelligible pleadings.
3. More liberal approach for sympathetic litigants with
limited understanding or education, which are
disadvantaged through no fault of their own.
4. The greater the annoyance level of the litigant to
the judge, the stricter the enforcement of rules.
G. There are no guidelines for judicial behavior re: pro se
litigants. 91 % of judges surveyed indicated no policy.
H. Guidance available is regarding pleadings and trial
management. Most cases settle yet no info available
for judges about how to effectively intervene and
I. The fewer services for pro se litigants at the front-end of
the system, the greater the burden on the judge.
J. One pro se/one counsel is the hardest circumstance to
navigate for judge. Neither should be given an
advantage. “This fine line requires the maximum
application of sound judicial temperament.” (p. 14).
K. Judges struggle with the judicial duty to provide
meaningful opportunity for all litigants to be heard with
the obligation to maintain impartiality.
(Sheldon and Murray)
L. Evidentiary issues problematic. For example:
1. DV case, criminal conviction for misdemeanor, not
admissible when moved by plaintiff because
2. DV prepared statement by plaintiff not admitted
because not properly recorded recollection.
3. DV hospital records.
4. In all above, low risk of fabrication and high risk of
unfairness not to allow into evidence.
5. Reversal for evidentiary error almost never occurs-
survey of 40,000 federal cases, jury and non-jury,
30 reversed on evidentiary issues, and 17 for
exclusions in error.
6. Problems when judge uses same evidentiary tests
for non-jury case when he/she is trier of fact, as in
jury case where error would be more significant.
V. Radical and Reasonable Changes
A. Relax the Rules of Evidence for family law cases.
B. Create a residual hearsay rule.
C. Change the Canons of Judicial Ethics and the Code of
Ethics for Attorneys to allow greater assistance to pro
D. Authorize and train court personnel to give limited legal
advice to pro se litigants.
E. Coordinate resources among community, courthouse
and Bar to provide instructional help for pro se litigants.
F. Foster People’s Law Schools and promote attendance.
G. Simplify the process and provide both procedural and
H. Reduce the economic barriers to litigation by reducing
or eliminating filing fees and encouraging alternative
I. Promote unbundled legal services and change rules of
procedure and ethical rules to allow for limited
J. Goldschmidt (1998):
1. Each state should develop protocol for dealing
with pro se litigants.
2. State court systems and national judicial education
providers should develop educational programs for
judges on methods of handling pro se litigation.
3. Judges should provide reasonable assistance to
pro se litigants in the courtroom.
K. Goldschmidt (2002):
1. Judges should be permitted to ask questions, call
witnesses and conduct limited investigations,
when notice to all parties and no objections.
Already done extensively in small claims and DV
2. Court staff should be trained to provide basic legal
information re: elements of cause of action,
statutes of limitations, service requirements, and
executions of judgments short of advising on
specific facts of litigant’s case.
3. Court staff or judicial personnel should conduct
pretrial conferences to prepare litigants for trial,
and be authorized to enter orders on uncontested
matters, check paperwork, and handle other
4. Factors to be considered when looking for
a. The prevalence of unrepresented litigants.
b. The volume of cases.
c. The complexity of the proceedings.
d. The adversarial or contested nature of the
e. The extent to which the proceedings involve
unrepresented litigants vs. attorneys.
f. Whether there are power imbalances
between the parties, i.e. consumer vs.
corporation or abused spouse vs. abuser.
g. The more of these factors that are present,
the less effective a limited-assistance
program will be.
VI. Judicial Aid
A. Sales: Pro se litigants were as satisfied with their
decrees of dissolution as those represented by
attorneys and more satisfied with the legal process and
with the judge than those represented. 72% of plaintiffs
would do the same again, but only 36% of respondents
who faced attorney would do so again
B. Case law direction:
1. Austin v. Ellis at 785.
2. Oko v. Rogers at 722.
C. (Zorza) The value of transparency is that the audience
will actually see that the proceeding is fully neutral,
even if the way it happens does not conform to
traditional notions of what neutrality looks like.
1. Structural transparency-neutrality is seen as part
of the entire process.
2. Sequential transparency-using steps to break up
the proceeding into phases. The relationship
between the phases and what happens in each
phase is made clear.
3. Explanation is critical to transparency.
4. Inquiry required.
5. Consistency is a key—visible and predictable.
D. Achieving transparency from the bench.
1. Judge should set the context and structure of the
hearing. (See attached script)
2. Judge should have a plan and follow it.
3. Judge should explain what he/she is doing.
4. Judge should ask the parties and the participants
if they understand what is happening.
E. Examples of achieving transparency.
1. Direct testimony-all parties are sworn, and then
issues are considered one at a time. Explain that
cross-examination means asking questions which
might case doubt on the story.
2. Hearsay-Huge problems loom. Refer to the
introduction (attachment), ask what the litigant is
trying to admit, explain the law, determine whether
there is sufficient foundation, and rule.
3. Documentary evidence-sustain foundation
objections only where inaccuracy is established.
4. Required documents-provide extra time for
5. Failure to establish a prima facie case-without
calling attention to the missing element, ask what
in the evidence satisfies the elements.
6. Objections by counsel or pro se-ask what about
the objection helps the truth-finding process.
F. Non-expert advice from the speaker
1. Know what your own community out-of-court
resources are so that you can make referrals.
2. Meet with your team (assistant, bailiff, clerk) to
develop a strategy. They are bound by the same
rules of ethics as you are.
3. Encourage training in dealing with difficult people.
4. Develop stock forms for returning ex parte
communications and stock answers for questions
calling for legal advice.
5. Don’t leave them without ammunition—pro se
litigants can be persistent and demanding.
6. Liberally construe pleadings and use correcting
minute entries to properly title if notice appropriate.
7. Reject pleadings not properly served but use a
sheet with boxes for what is missing (good for
8. At hearing, give options about how to proceed.
Full hearing or narrowing of issues. Remember
that some people come ready for trial and want
9. Explain what it means to take matter under
advisement and when to expect ruling. Be
10. Explain reasoning for rulings made in court, such
as why issues not noticed cannot be added.
11. Set review hearings to monitor enforcement of
orders, rather than requiring prevailing party to file
12. Require dignity and respect in the courtroom, and
try to accord the same. No conversations
between parties, all argument directed at court,
etc. No first names. Titles when appropriate.
13. Sustain un-made objections to ensure a fair trial.
14. Listen to your tone of voice on a recording
sometime to make sure you’re in control, even if
the litigants are not.
VII. The Good, the Bad and the Ugly
A. Good-Done well and thoughtfully, facilitating a hearing
involving at least one pro se litigant is the ultimate in
service to the community and the judicial system.
B. Bad-When it doesn’t go well, through no fault of your
own, the litigants hate each other, talk back, act out,
disrespect each other and the court, and the case will
return and return. Very common with cases involving
substance abuse, mental illness, and domestic
C. Ugly-There are more judicial conduct complaints filed in
family law cases than all others combined. Also,
motions to change judge for cause, complaints to
presiding judges, and the like.
1. Colorado Tenth Judicial District Commissioner on
Judicial Performance issued a recommendation of
does not retain on Judge Adele Anderson, one
basis of which was her “demeaning and harsh
treatment of individuals appearing in her court
without legal counsel.”
2. California Commission on Judicial Performance
publicly censured a judge for ill treatment of pro se
3. An Indiana judicial ethics opinion admonishes
judges not to take an overly strict position on
assisting pro se litigants in non-adversarial matters
such as name changes and default divorces.