Friday, November 28, 2014

Best Practices in Dealing with Self-Represented Litigants

February 21, 2011 by Hon. Marianne Vorhees

[Editor's Note: This is the second in a series of four articles from the Ethics and Professionalism Committee of the Indiana Judicial Conference. The author thanks and acknowledges the contributions of those who attended the session at the September, 2010, Judicial Conference in Indianapolis and contributed to the “Best Practices” suggestions related here.]

Dealing with self-represented litigants presents many challenges for trial court judges. And, in today’s troubled economy, more people than ever before are representing themselves in legal matters.

At the September, 2010, Judicial Conference, a “best practices” session was held, and trial judges offered many thoughtful suggestions for dealing with self-represented litigants.

For example, after a self-represented litigant files a petition to modify child custody, the judge might instruct the court staff to include language indicating the evidentiary burden on the party in the notice of the hearing date, such as: “Petitioner, Jane Doe, is advised she has the burden of proof to make the showing required in Indiana Code Section 31-17-2-21.” Judges cannot give legal advice to the litigants, but can highlight a relevant statute or court rule before a party presents evidence.

Another judge suggested that in cases involving complicated issues, an order should be issued directing the self-represented litigants to appear at the pre-trial conference. At the pre-trial conference, the judge can advise the self-represented litigant that no assistance will be given during the hearing; that the judge must hold every self-represented litigant to the same standards as a lawyer; and, ask if the litigant intends to hire a lawyer. A judge can impress on the litigant how important it is to hire a lawyer by asking and answering a question such as: if your son broke his leg, would you treat it yourself? No, you would go to the doctor. This is a very important matter, and you should try to hire a lawyer to help you. A judge may also suggest that a qualified litigant seek pro bono assistance, and have the information available to find lawyers.

When conducting a hearing with one or more self-represented litigants, some judges suggest advising them about basic courtroom rules. Here are a few examples:

  1. the plaintiff/petitioner is the first to present evidence;
  2. when a witness is finished testifying, the defendant/respondent will have an opportunity to ask questions;
  3. after the plaintiff/petitioner has completed the presentation of all evidence, the defendant/respondent will have the opportunity to present evidence;
  4. the parties may not to talk to each other during the hearing, and should direct all comments to the judge;
  5. it is very important that only one person talk at a time and never interrupt the other party; and
  6. each side will have a chance to present their case to the judge when it is their turn.

What should a judge do if only one side is represented by counsel and the self-represented party will suffer a real injustice due to lack of legal representation? For example, a self-represented mother may be pursuing a petition to modify custody because the children are in danger in their father’s home, but doesn’t know how to properly present the necessary evidence.

This presents a dilemma for the judge, who is not allowed to give legal advice or assistance, but does not want to see the children suffer an injustice. Suggested solutions for this particular situation include:
adjourn the hearing and advise the mother she needs a lawyer’s assistance;

  1. offer to reset the case and give her a chance to hire a lawyer;
  2. refer her to a pro bono program;
  3. assign a public defender (if the county has available resources);
  4. appoint a Guardian ad Litem for the children; or
  5. refer the parties to a mediator with the court’s Family Court Alternative Dispute Resolution Program, if available.

The consensus among the judges attending the conference was that in cases with two self-represented parties, in a relatively simple hearing, such as dissolving a marriage or modifying child support, the judge may lead the parties through the process by asking questions such as, “What is your gross income? How many children do you have? Do you have day care costs for those children?” Judges are permitted by this Rule “to make reasonable accommodations to ensure pro se litigants [have] the opportunity to have their matters fairly heard” (See Comment 4, Code of Judicial Conduct Rule 2.2).

Judges should be aware that Indiana Code Section 31-19-2-2(a) provides that an Indiana resident who seeks to adopt a child under eighteen years of age may “by an attorney of record” file a petition for adoption. Adoptions are one type of action for which self-representation may not be authorized.

The Indiana Supreme Court has established a Self-Service Legal Center on the Indiana judicial website to ensure access to the judicial system by providing basic resources to self-represented individuals at courts.in.gov/selfservice. Judges should have this information available to any individual appearing before them who is considering self-representation.