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

* The judge not understanding the relevance of facts before him or her because of the litigant's failure to explain, and the judge's failure to elicit, the relevance.

* The litigant being too intimidated from getting the story in front of the judge.

* The litigant not raising issues because he or she did not know they could impact the outcome, or did not understand the legal analysis relating the two.

* The litigant getting so tangled in the story that he or she is unable to communicate a coherent version of events to the judge.

* The litigant being intimidated or confused by objections raised by the opposing party, or, more likely, opposing counsel.

As the tables below illustrate, the risks and benefits of judicial behavior with respect to fairness and neutrality in each of the "cells" therefore depend on the skill and knowledge of the parties, and more precisely therefore on whether they have counsel.

Equally important, however, is the impact of judicial engagement or passivity, and neutrality or non-neutrality, upon the observabilty of the ultimate neutrality of the proceeding. judicial behavior which may be viewed as demonstrating non-neutrality, regardless of whether it is in fact related to non-neutrality, might include behaviors such as the following:

* Asking of questions from which a judicial state of mind might accurately or non-accurately be inferred.

* Comments on the law or on required evidence, from which similar accurate or non-accurate inferences might be drawn.

* Interruption or redirection of witnesses, counsel, or parties, from which similar accurate or non-accurate inferences might be drawn.

* Tone of voice or other body language.

As the tables below also show, the extent of the observability of the risks and benefits of engagement with respect to true neutrality also depends not only on which "cell" most accurately characterizes the judge's behavior, but the relationship ofthat "cell" to the representation status of the parties, i.e., whether they or their opponent have counsel. Crucially, it is the relationship between judicial behavior and representation status which governs the appearance of justice.

As the tables show, the relationship between the two is not the same for actual fairness and for the appearance of justice. The differences explain and highlight the disconnect between justice and the appearance of justice.

This table highlights a fact little noticed in the dialogue about neutrality, that judicial passivity increases the risk that a non-neutral process will nonetheless be seen as neutral, particularly when the presence of counsel for both sides provides a veneer of process neutrality.

As shown in this table, when neither party has counsel, the nature of judicial intervention becomes critical as to the two separate questions of whether the result is unfair and whether the result is perceived to be unfair.

Generally, it is when only one party has counsel that the consequences of passivity are likely to be greatest. In addition, however, is the fascinating result that non-neutral behavior may be masked by a judicial engagement that appears to balance the unfairness of one side having counsel.