ACTIVE JUDGING AND ACCESS TO JUSTICE.

Author:Carpenter, Anna E.
 
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INTRODUCTION 649 I. CONTEXT OF THE STUDY 657 A. Unrepresented Parties and the Traditional Civil Justice 657 System B. Why Not Increase Services? 660 C. Move Toward Judicial Reform 661 D. Three Dimensions of Active Judging 667 1. Judges Adjusting Procedures 667 2. Judges Explaining Law and Process 669 3. Judges Eliciting Information From Litigants 671 II. DATA AND METHODOLOGY 672 A. Data 673 1. The Court 673 a. The Judges 675 b. The Parties 675 2. Unemployment Law and Procedure 677 a. Procedural and Evidentiary Rules 677 b. Burdens of Proof 678 3. Active Judging in Unemployment Appeals 679 B. Methodology 683 III. DISCUSSION AND FINDINGS 684 A. Whether to Engage in Active Judging 685 B. Variations in Active Judging Practices 686 1. Judges Adjusting Procedures 687 2. Judges Explaining Law and Process 690 a. Explaining Hearing Processes 691 b. When and How Much to Explain 691 c. Explaining Substantive Law 692 3. Eliciting Information 695 a. Active vs. Passive Approach to Eliciting Information 695 b. Role of Substantive Law and Burdens of Proof 697 C. Sources of Guidance on Active Judging 699 1. Appellate Court 701 2. Department of Labor 702 a. Peer Review 702 b. Opening Explanations 703 IV. IMPLICATIONS 704 A. The Role of Substantive Law and Burdens of Proof 705 B. Rules of the Game 706 C. Consistency and Accountability 707 CONCLUSION 708 INTRODUCTION

The adversary process, that core feature of American justice, has all but disappeared from our state civil courts. More accurately, the rules and norms of the adversary system remain in place, but the advocates are largely missing. Our nation's civil courtrooms are no longer the province of lawyers, but of unrepresented people, many of whom are low-income and deeply vulnerable.

Some scholars now refer to our state civil courts as the "poor people's courts." (1) In these courts, cases most often involve family, housing, small claims, foreclosure, and consumer matters. (2) Two scenarios dominate the landscape: cases where only one party has counsel and cases where neither party has counsel. (3) Both represent a serious crisis for our justice system and the people whose rights and lives are at stake as they navigate the complexity of civil litigation on their own. (4)

A critical mass of scholars and experts now argue that court reform, including reform of the judge's role, could help solve the pro se crisis in civil justice. (5) Reform proposals go by different names, such as "active judging," "affirmative judging," "engaged judging," and "engaged neutrality," but all refer to a model of judging that sets aside traditional judicial passivity in favor of some form of judicial intervention or activity to assist people without counsel. I use the term "active judging" to identify such proposals. (6) To illustrate the type of activity contemplated by those calling for judicial role reform, imagine an unrepresented person who fails to lay a proper foundation for a document. A traditional, passive judge might refuse to admit the evidence. In contrast, an active judge might explain the concept of foundation and ask a series of questions to help the pro se litigant lay the proper foundation.

Today, at a moment when calls for active judging are on the rise, it is apparent that our thinking on judicial role reform is still in a nascent stage. Important questions about implementation and effectiveness remain unanswered. Answering these questions requires both theory and empirical data. Currently, we have some of the former but little of the latter.

Despite significant literature that critiques the traditional, passive judicial role in pro se litigation and makes the case for active judging, few empirical studies have examined how judges think about their role in pro se cases, to what extent they are implementing active judging, and the nature of their practices. (7) In fact, we lack basic information about state courts and judges as a general matter. (8) The work of lower court civil judges in the United States is under-researched and under-theorized compared to the vast academic literature on judges and judging in the federal and appellate courts. (9) We have robust empirical studies and theories to describe and explain the judicial role in complex and appellate litigation, but little comparable scholarship on lower court judges, let alone how they handle pro se litigation. (10) This gap is striking, considering that the overwhelming majority of Americans who access the civil justice system will never interact with a federal or appellate judge. (11) In fact, our state courts, where most parties have no counsel, handle nearly 99% of all civil matters filed in the United States each year. (12) In the absence of data about civil justice in the lower courts, our normative views and prescriptions for change are inevitably incomplete. (13)

In response to the need for data, as well as theoretical and conceptual development, this Article reports results from a study of a majority pro se court where controlling law supports active judging. (14) Using qualitative data from in-depth interviews with twelve judges, the study offers new and much-needed data on the real-world practices of lower court judges and a new conceptual framework for understanding judicial practices in pro se litigation. This study focuses on the point in a civil case when pro se parties interact directly with judges: the courtroom during a civil hearing. (15) It explores whether, how, and why judges use active practices in the courtroom and discusses what the findings suggest for the future of judicial role reform and court reform more broadly. This work responds to questions about the scope and nature of proposed changes to the judicial role and begins to fill gaps in empirical data and theory. (16)

This Article is part of a broader empirical study of unemployment insurance cases conducted by Colleen Shanahan, Alyx Mark, and me. The study includes one of the broadest and deepest data sets ever collected in a U.S. civil justice setting, with 5,150 individual case observations, qualitative interviews with representatives practicing in the court, and qualitative interviews with judges. (17) In previous articles, my coresearchers and I used this data to examine the role of representatives in access to justice including the balance of power between parties to a case, (18) the role of a lawyer's strategic expertise, (19) the development and exercise of expertise by nonlawyer advocates, (20) and the risks of less-than-full representation. (21) In a forthcoming article, Professor Shanahan examines how parties actually gain access to the hearing room and how judges interact with procedural rules to block or grant access for unrepresented parties. (22) Her work examines the judge's role in access to justice outside of the courtroom, while this Article looks at the judge's role inside the courtroom. Taken together, these articles contribute to a deeper understanding of the judge's role in pro se litigation and the potential for court-based access to justice reforms.

This Article proceeds as follows: Part I contextualizes the study by explaining how active judging became part of the conversation about civil justice system reform, including the backdrop of the pro se crisis, how the traditional, passive approach to judging exacerbates challenges facing those without counsel, and recent shifts in judicial ethics in response to the rise of pro se litigation.

Part I also reviews existing scholarship on judicial practices in pro se cases and offers a new conceptual framework to organize proposals for judicial role reform, the "three dimensions of active judging." These dimensions include: (1) adjusting procedures; (2) explaining law and process; and (3) eliciting information. Next, Part I identifies expectations for the qualitative interviews based on existing research, which predicts substantial variations in practice across the judges. Previous research also suggests this study can contribute to our understanding of active judging as an access to justice intervention by identifying how a particular group of judges thinks about their role in pro se cases, whether and how they are implementing active judging, and the factors that influence and mediate active judging. To answer the questions identified in Part I, this Article draws on semistructured qualitative interviews with judges who preside over predominantly pro se unemployment insurance appeals dockets.

Part II describes the site of the study, the District of Columbia Office of Administrative Hearings (OAH); the study subjects, OAH judges; and the study's methodological approach. This Part details the substantive law of unemployment appeals, as this information is critical in understanding the active judging practices employed by judges in this court. It also describes controlling law on judicial engagement with pro se parties and judicial ethics in the District of Columbia, both of which support active judging and provide more detailed guidance than is available in most other jurisdictions.

Part III presents and discusses the findings, which are organized into three categories: (1) whether the judges engage in active judging; (2) variations in active judging practices; and (3) sources of guidance that influence active judging in the court.

First, the findings show a group of judges who see themselves as playing a role in facilitating fairness and access for pro se parties. For all of the judges interviewed, this involves some form of active judging.

Second, while a commitment to assisting pro se litigants through some form of active judging is shared by all judges, individual judges' views and practices vary across three dimensions of active judging. This result aligns with previous research, which suggests judges have inconsistent and ad hoc approaches to dealing with pro se parties. Looking at the three dimensions of active judging, we see that all judges...

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