Nothing for something? Denying legal assistance to those compelled to participate in ADR proceedings.

• Author: Landsman, Stephan
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

1. Judicial Treatment of Unrepresented Litigants A. The Traditional Approach B. An Opposing View II. The Unrepresented in Compulsory ADR Settings--The Unavailability of Assistance A. Arbitration B. Court-Annexed Mediation III. The Risks of Leaving Pro Se Litigants Unrepresented in ADR Proceedings IV. Responding to the Risks V. Focusing on Counsel as a Remedy I. JUDICIAL TREATMENT OF UNREPRESENTED LITIGANTS

   1. The Traditional Approach

      The courts have been of two minds in their handling of unrepresented litigants. The traditional view has been that those who proceed pro se must look out for themselves. They will be expected to comply with all the rules regulating the litigation process and will not be given special dispensation because of their lack of knowledge or legal skill. The United States Supreme Court relied on this view in its 1975 ruling in Faretta v. California. (1) There, the Court held that a criminal defendant has a Sixth Amendment right to represent him or herself. The Court cautioned, however, that: "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." (2) This proposition has been reiterated regularly and amplified upon in both criminal and civil decisions since Faretta.

      In conformity with this view, the Supreme Court has determined that a trial judge, generally, has no obligation to assist pro se litigants. As the Court bluntly put it, there is no "constitutional right to receive personal instruction from the trial judge on courtroom procedure." (3) One of the key justifications for this position is the fear that the trial judge who intervenes on behalf of an unrepresented party is likely to undermine his or her neutrality. Speaking for a five-member majority in Pliler v. Ford, (4) Justice Thomas used the neutrality argument in rejecting a claim that a district judge was obliged to assist an unrepresented litigant with "details of federal habeas corpus procedure." (5) Justice Thomas asserted that such assistance "would undermine district judges' role as impartial decision makers." (6)

      In the adversarial framework, the most sensible and effective approach when courts are faced with self-represented litigants who seem incapable of managing their cases may not be judicial intervention, but the provision of counsel. (7) Courts have held that the Sixth Amendment to the Constitution requires the appointment of a lawyer for the unrepresented impecunious criminal defendant at public expense whenever there is a possibility of incarceration. (8) On the civil side, by contrast, the courts have recognized no similar right. In Lassiter v. Department of Social Services, a case involving the termination of parental rights, the Supreme Court established a presumption against any right to the appointment of counsel in civil actions. (9) While Lassiter did not literally rule out judicial recognition of such a right, it has been interpreted as having erected a virtually insurmountable barrier to any due process claim regarding civil legal assistance. (10) Although courts have long recognized judicial discretion to appoint counsel in particularly compelling circumstances, (11) that authority suffered a serious blow when the Supreme Court decided Mallard v. United States District Court. (12) The Court held that an unwilling attorney could not be required to accept an uncompensated court assignment to represent a pro se litigant pursuant to 28 U.S.C. [section] 1915(e)(1). The statute allows a court, in its discretion, to make such appointments. The Court thereby reduced the likelihood of the provision of counsel, even as a matter of judicial discretion.

   2. An Opposing View

      Were this all there was to say about representation and assistance, the picture would be bleak indeed. The story, however, is not so simple. Several years before the Court decided Faretta, it held, in Haines v. Kerner, (13) that in reviewing pleadings filed by unrepresented parties, judges were to hold the submissions "to less stringent standards than formal pleadings drafted by lawyers." (14) Courts have extended this accommodating attitude toward the efforts of parties representing themselves to other areas of litigation including service of process, pursuit of discovery, responses to motions for dismissal or summary judgment, and compliance with the rules of evidence. (15) The Ninth Circuit has been among the leading advocates of the liberal treatment of pro se efforts. In Balistreri v. Pacifica Police Department, (16) the circuit court stated: "This court recognizes that it has a duty to ensure that pro se litigants do not lose their tight to a hearing on the merits of their claim due to ignorance of technical procedural requirements." (17) Such sympathetic handling has made the litigation process somewhat more congenial to the self-represented and has involved judges in rendering some, albeit modest, assistance to them.

      The organized bar and a significant number of courts have moved beyond tolerance of pro se efforts to encouragement of direct judicial assistance. The American Bar Association ("ABA") heralded this shift in 2007, when, in a Comment to Rule 2.2 of the Model Code of Judicial Conduct, addressing impartiality and fairness, the rule drafters stated: "It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard." (18) The ABA went further, and in Rule 2.6, with pro se litigants in mind, declared that "a judge shall accord [to all] the right to be heard...." (19) These changes reflect a rejection of the narrow view of neutrality espoused in Pliler and a willingness to encourage judges to assist the unrepresented.

      A number of courts, judicial administrators, and national organizations have, over the past decade, contributed to what one scholar has described as an accelerating trend "to accommodate unrepresented litigants and facilitate their efforts to present their cases." (20) Steps along this road have included: the 1997 Final Report of the Pro Se Implementation Committee of the Minnesota Conference of Chief Judges which called for alternative procedures to facilitate the presentation of pro se claims; (21) the declaration in 2000 by the Conference of State Court Administrators that courts have an "obligation" to respond to the needs of the self represented; (22) the American Judicature Society and State Justice Institute report of 2005 recognizing as a "best practice" judicial action to manage the presentation of proof so that the claims of the self-represented are addressed on the merits; (23) the 2006 Massachusetts Judicial Guidelines for Civil Hearings Involving the Self-Represented Litigant, which urge a series of steps to ensure that parties proceeding pro se understand court processes and have a meaningful opportunity to present their claims; (24) and the 2007 State Justice Institute and Judicial Council of California, Administrative Office of the Courts volume, Handling Cases Involving Self-Represented Litigants, which establishes a set of principles for the management of pro se cases. (25)

      The California principles capture the dramatic shift that has occurred as courts have begun to erect a partial but increasingly effective safety net to protect the unrepresented. Among the measures urged are that: (1) cases be resolved on the merits; (2) courts recognize a duty to prevent miscarriages of justice; (3) all court-provided instructions be comprehensible to lay people; and (4) rules requiring equal treatment do not "prevent trial judges from providing assistance to self-represented litigants to enable them to comply with the rules of evidence and procedure." (26) These proposals may not amount to a right to judicial assistance, but they do signal that the unrepresented increasingly may expect to receive substantial help.

      Similar developments have occurred with respect to the provision of counsel. The barriers erected by Lassister, Mallard, and the rest have not been dismantled, but there has been movement toward the recognition of a right to a lawyer in a number of settings, most particularly with respect to certain issues affecting the family, involuntary commitment, and medical treatment. (27) These steps come in addition to already existing statutes at both the federal (28) and state level (29) that grant courts discretion to appoint counsel in civil proceedings. While courts have generally been reluctant, especially in the aftermath of Mallard, to use this discretionary power except in "exceptional circumstances," (30) there has been a growing sensitivity to the importance of appointing counsel where there is a real opportunity for success on the merits. (31)

      Recent developments clearly have not yet established a guarantee of judicial or lawyer assistance to the unrepresented in civil litigation but have made courts significantly more sensitive to the needs involved. Judges are authorized to help pro se litigants. Some courts have gone so far as to declare that judges who place obstacles in the path of pro se parties should be criticized or even sanctioned. (32) Courts are being urged, Justice Thomas notwithstanding, to provide assistance while codes of judicial conduct make specific allowance for such intervention. The appointment of counsel represents a genuine option in cases of particular need, (33) as well as the potential for expansion if developments continue on their present course.

      The remainder of this Article will explore the treatment of unrepresented litigants in ADR settings. Section II will examine the difficulties faced by pro se litigants in managing their own arbitrations and court-annexed mediations. It will contend that in these settings the unrepresented may be substantially more disadvantaged than in litigation. Section III will explore the special risks that...