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

On the first issue to be decided, the judge may invite one party to tell their story, encouraging them to start by saying what they want from the court, or why they are there and reminding them of what needs to be shown in order to obtain this.36 Once completed, and once any clarification questions have been answered, the judge turns to the other party, allowing him or her first to ask clarification questions, and then to present their own story, itself subject to clarification questions. The judge may want to introduce this segment by explaining that the party may ask questions that might reasonably be expected to cast doubt on the story already heard.

When all has been heard on that issue, including checking with the parties that they understand what has been said, and that they feel that all has been laid out, the judge may issue a decision on that issue, and make clear the implications for the case as a whole.37

The judge then proceeds to the next issue, following the same template, ultimately making a decision on the merits, issuing a decision and order (preferably there in the courtroom) and checking that the parties understand the order, its details and what they are required to do. It might also be appropriate to check with the parties if there are any barriers anticipated to compliance, and if so to increase the specificity of the order, add reporting requirements, or the like.

2. HEARSAY EVIDENCE

Traditionally, hearsay evidence raises some of the greatest problems for the self-represented. It can lead to incomprehensible objections from opposing counsel, confused attempts to develop a foundation, and resentment all around.

Applying modularity and explanation when hearsay issues arise, the judge might want to refer to his or her introduction, ask the proponent of the evidence what they are trying to admit, explain the general law and then establish whether the relevant foundational facts are there, and if so, announce it.

3. DOCUMENTARY EVIDENCE

Documentary evidence raises the same issues, although it is more likely that there may be a need for a continuance to obtain foundational evidence. Such foundations should only be insisted upon if there is objection. Such objection should be asked to focus on the risk of non-accuracy of the proffered evidence.

4. REQUIRED DOCUMENTS

Where documents are required, there is nothing non-neutral about the judge making that clear in his or her initial summary of the case, and where appropriate, providing extra time to produce the needed document.38

5. FAILURE TO MEET THE ELEMENTS OF A PRIMA FACIE CASE

Similarly, the frequency of failure to meet the elements of a prima facie case or defense should be greatly reduced by the judge explaining those elements early in the proceedings. The difficult question is the extent to which a judge, at the end of a case -in-chief, should point out any missing element, even when the need for that element has been made clear at the beginning. Each judge needs to develop a consistent answer to this question. One possibility is for the judge to ask what in the testimony, in the opinion of the profferor, meets that element, without explicitly drawing repeated attention to any possible need for additional evidence. It may indeed be that the party has failed to make explicit an inference clear to him or her, but not yet to the judge, and which an attorney would have known the need to emphasize.