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

This occurs when the processes can be analyzed at a level of generality and totality that makes them neutral as a whole. If what happens is analyzed only in moment to moment terms it may seem non-neutral, when, for example a judge asks a question of one party. But if that question is established as part of a process in which all are asked questions when needed for the judge to understand what happened, then a process that is seen to be neutral in an overall sense has been created. Similarly, if the judge sees himself or herself as establishing a structure, for example, in which he or she checks at each step whether the whole story has been told, then that structure is neutral, even if it may help more those who need to be helped because they lack counsel or education or both.

2. SEQUENTIAL TRANSPARENCY (STEPS)

A similar technique is sequential transparency, the use of steps, in which the proceeding is broken up into a number of phases, in which the relationship between these steps is clear, and in which the relationship of what happens in each of these steps is clear to the participants and the audience. For example, in the courtroom, a judge might separate the steps required in fact-finding, explaining the relationship of each step to those that have passed, and those that have followed.

3. EXPLANATION

Explanation is crucial to transparency. Explanation of the process, of the relationship between the process and neutrality, and of the reasons for the conclusion make it possible for the participants and audience to understand. Explanation is particularly important when participant perceptions are shaped by pre-existing assumptions about what they will see and its implications. Those trained to expect the traditionally passive judge are much more prone to see engagement as non-neutral, and explanation is all the more critical.

One way such explanation enhances the appearance of neutrality is that it focuses the participants and audience on the level of neutrality that the explanation emphasizes. If the explanation explains the judge's goals and criteria for asking a question, for example, then the neutrality preserving role of those interventions will be much clearer than if those present are forced to make their generalization as to motive.

4. INQUIRY

Transparency requires a feedback mechanism. Judicial inquiry of the parties as to whether they understand what is expected of them, what the judge is doing, what has been decided, and the consequences of that decision, are all ways of ensuring that there is such a feedback mechanism. The mechanism serves justice by making it possible to obtain more information when misunderstanding has led to lack of information, and serves the appearance of justice by showing the interest of the judge in justice.

5. CONSISTENCY

Finally, visible, predictable consistency is crucial to transparency, neutrality, and the appearance of neutrality. Whatever the judge does, engagement or passivity, inquiry or explanation, must be done in a consistent manner. Consistency does not require absolute symmetry, the same number of questions for each party, for example. What is does require is predictability, regardless of the party. Thus, it requires a set of rules for behavior which are seen as neutral, and from which behavior can accurately be predicted from factors that are appropriate.