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

In attempting this path in their day-to-day work, judges have a lot to work with. They have a significant reservoir of respect and credibility,25 they have near total authority in their courtrooms, and they face a public with a desperate desire to feel that they will be listened to when they go to court.26 At the same time, it has to be recognized that these ways of thinking are far from the traditional approach of most judges, and their adoption will require substantial rethinking and openness. The ideas will strike some as increasing the risk of being viewed as non-neutral, as increasing the risk of complaints, and as increasing the risk of being reversed on appeal.27 These fears will only dissipate when the entire culture of the legal system takes a broader view.

Perhaps most important for the approach suggested here and for its ultimate acceptance, is that the needs of transparency align with the needs of justice itself. just as transparency allows the public to judge neutrality, so it allows the litigants to engage the court with their stories in their search for access to justice.

True transparency is not just openness. Openness describes the attitude of the institution to outsiders. Transparency, in contrast, describes a state of the relationship between the institution and the audience in which the audience actually does see what is going on. In the legal neutrality context, this requires not only that the institution is trying to be open, but that the institution has adopted means of operating that guarantee that the audience, (here the public) actually does know and understand that the judge and the system are being neutral, and how they are being neutral. When there are counsel present, this transparency is achieved in part from the visibility of the interplay between counsel and the judge, and in part from the faith that if the judge was not being neutral, then counsel would take appropriate action. When there are no counsel, far greater responsibility therefore falls on the court.

This Article suggests that when one or other or both parties do not have counsel, judges can achieve such transparency by the general techniques which may be labeled, at the risk of jargonizing, Structural Transparency, Sequential Transparency, Explanation, Inquiry and Consistency.28

1. STRUCTURAL TRANSPARENCY (SHOWING THE NEUTRALITY OF THE STRUCTURE)

The core idea is that that each particular procedure or event is put in the context of an appropriate overall structure, broadly denned, that is seen to meet the overall goals sought to be achieved by the institution or process.

When, as here, the goal is neutrality, this means that the process of the court is structured so that those present and observing understand what is going to happen is neutral - in other words that the judge creates a procedure which is neutral and in which the relationship of what will happen to the desired goal of neutrality is clear to all. The structure of the process itself is neutral and can be seen to be neutral, even when the parties may be very differently situated.