Judicial O# cers and Self-Represented Litigants: Tools for Working Together, 0421 COBJ, Vol. 50, No. 4 Pg. 14
| Author | BY NINA Y. WANG, ADAM J. ESPINOSA, AND KELLEY R. SOUTHERLAND, WITH CONTRIBUTIONS BY MICHAEL HOULBERG |
| Position | Vol. 50, 4 [Page 14] |
Judges’ Corner
BY NINA Y. WANG, ADAM J. ESPINOSA, AND KELLEY R. SOUTHERLAND, WITH CONTRIBUTIONS BY MICHAEL HOULBERG
This
past year has been extremely difficult for
people—physically, emotionally, and financially. Many
have lost their jobs due to the pandemic, making them
vulnerable to loan defaults, bankruptcy, and eviction.
Divorce and separation filings are up. And incarcerated
individuals in the federal court system, who often have
limited access to legal resources, have faced a host of new
challenges. Compounding the issues, many of these individuals
will be representing themselves in court.
Unfortunately, self-representation is not a trend that we can expect to taper off as the pandemic's burdens lessen. And while self-represented litigants face many challenges trying to navigate their cases, judicial officers likewise face significant challenges in determining how to achieve fairness while remaining impartial. Judicial officers must find a way to ensure procedural fairness and afford self-represented litigants an opportunity to be heard without running afoul of the Colorado Code of Judicial Conduct.
To help judicial officers balance these interests, the Institute for the Advancement of the American Legal System (IAALS) has created a guide for trial judges that outlines effective practices for resolving cases involving self-represented litigants.2 These best practices were derived from the latest research as well as feedback from six experienced judicial officers. This article highlights a few best practices covered in the guide.
Ensuring Procedural Fairness
To achieve procedural fairness, "the law must produce a consistent outcome for all litigants, regardless of their legal representation, based on the law and facts of their case."3 In its most basic sense, "procedural fairness" is a legal principle that ensures fair decision-making. But self-represented litigants and judicial officers have different views about whether procedural fairness has been achieved. For most self-represented litigants, the outcome itself is not as important as the fairness of the process that produces the outcome.
Judicial officers play a critical role in providing procedural fairness to self-represented litigants, and when both parties are self-represented, the judicial officer has additional responsibilities and obligations to keep proceedings balanced and fair.4 Judicial officers must take seriously the fact that self-represented litigants have important issues to resolve and understand that litigants feel a tremendous sense of nervousness in approaching the court to resolve their issues. As one of the few contacts that parties have with the court system, judicial officers are responsible for making it accessible and providing finality when possible. Judicial officers can create a productive environment for hearings by demonstrating and requiring respectful and peaceful communication. Calm proceedings with clear structure feel fairer to the parties involved.
At the outset of a hearing, the more detailed, plain language information that the parties are provided, the more effective and efficient the hearing will likely be...
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