Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications, The

Georgetown Journal of Legal Ethics, The, Spring 2004 by Zorza, Richard

INTRODUCTION

This Article analyzes and suggests an approach as to how judges can deal appropriately and neutrally with the hugely increased numbers of those who appear in court without counsel in civil cases.1

Notwithstanding the numerical evidence of the importance of this phenomenon, and the obviousness of its impact on the both litigants and judges, during most of the recent period of rapid growth there has been little public academic or judicial attention, and indeed little ABA or state regulatory attention, to how the judiciary should be responding to the challenge of this change in the courtroom.2

Recently, however, there has finally been some growing attention to the question of how judges3 should deal with such cases and of their implications for the judicial role.4 This attention now includes a recently launched State justice Institute funded study being conducted by the American judicature Society,5 with a particular focus on the ethical issues faced by judges dealing with such cases; it also includes an inquiry by the recently established ABA task force into exploring the possible need for changes in the Model Code of judicial Conduct ("Model Code").6 The urgency of this attention has been highlighted by the growing realization that those who appear in court without lawyers are, as a general matter, only "choosing" to do so in the most formal sense. Rather, that "choice" is a product of their economic situation and the cost of counsel.7

Part One of this Article suggests an intellectual structure for analyzing this issue. Its core thesis is that our focus on the appearance of judicial neutrality has caused us improperly to equate judicial engagement with judicial non-neutrality, and therefore to resist the forms of judicial engagement that are in fact required to guarantee true neutrality. The intellectual structure proposed in the Article attempts to "unpack" that confusion.

Having built a structure for analyzing the distinction between neutrality and disengagement, the Article then suggests a theoretical approach for how a judge might obtain the benefits of engagement and true neutrality without running the risk of creating the appearance of non-neutrality.

The remaining parts of the Article commence an exploration of the implications of this analysis for how judges might conduct their courtrooms on a day to day basis (Part II), for changes that might be considered in the Canons of, or Comments to, the Model Code (Part III), for standards of appellate review of judicial decisions made in managing cases (Part IV), and for future research (Part V).

In summary, the paper concludes that:

* judicial neutrality and judicial passivity are very different, and should not be confused.

* In the pro se context, the appearance of neutrality and true neutrality are often very different, and true neutrality often requires a form of engagement that may seem inconsistent with traditional expectations for the appearance of neutrality.

* This apparent contradiction can be resolved by the development of a transparent style of judging, in which judicial engagement is demonstrated to be in the service of true neutrality. Moreover, while the perceived fears of the dangers of engagement are perhaps greatest at the (rarely occurring) trial phase, such an approach is equally valid and needed in the other phases of judicial involvement with cases, including supervision of the participation of other components of the court system.

* Such transparency can be achieved by relatively simple courtroom techniques, many of which are already in use and have been written about.

* Such innovations, and the dialog needed to advance them, could be greatly assisted by additional comments to the Model Code, which could clarify that such changes in courtroom conduct are in no way inconsistent with the Canons of the Model Code.

* Current case law, including its general approaches to review of cases challenging judicial management of the courtroom, provides guidance for the development of additional ways of thinking about judicial courtroom management that will help provide an accessible forum.

* Finally, additional empirical research is urgently needed into these matters.

I. AN INTELLECTUAL STRUCTURE FOR ANALYSIS OF THE NEUTRALITY PROBLEM IN juDICIAL MANAGEMENT OF PRO SE caseS

A. THE TWO DIMENSIONS OF JUDGING: NEUTRALITY VERSUS NON-NEUTRALITY AND ENGAGEMENT VERSUS PASSIVITY.

It is a truism that there is no concept more fundamental to the common law and United States legal systems that judicial neutrality. Without such neutrality, the entire legitimacy of the legal system, indeed its reason for existence within the democratic experiment, fall.8

Because such neutrality is so crucial and so entwined with the legitimacy of the system, society and the legal system have built up a complex and multi-faceted structure to protect and emphasize this neutrality. The components of this structure include the general impartiality language of the Model Code,9 the explicit prohibitions on ex parte communications in the Model Code and the common law,10 and, of greatest relevance here, the entire ideal judicial courtroom persona on which we have been reared, and which we take absolutely for granted.