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 trick in obtaining neutrality is stating the rule in general enough terms. "I will inquire about what self-represented litigants want from the court" may seem biased, even though it leads to consistency and predictability. "I will ask about what the parties want from the court whenever it is not clear to me" is neutral, since it relies on an appropriate factor, and remains relatively predictable.29

Of course the existence of the practices, and their content, must be explicit, visible, and understandable.

E. TRANSPARENT JUDGING AS TRANSCENDING THE APPARENT CONFLICT BETWEEN THE NEEDS FOR ENGAGEMENT WITH THE REQUIREMENT OF THE APPEARANCE OF NEUTRALITY

In short, use of these transparency techniques means that a judge can structure the proceeding so that it is truly neutral without running significant risk of the appearance of non-neutrality. As discussed in detail below, transparency means that the audience will see that the proceeding is fully neutral, even if the conduct of the court is not necessarily in accordance with the participants' and audience's traditional prior expectations as to how neutrality is achieved and manifested.

It should be emphasized that this general approach applies with equal force not only to the trial, but to all aspects of the judge's involvement with the case, including the possible referral to, and supervision of, other components of the court and affiliated agencies. judicial management of discovery, adjournments, the paper flow, settlements, mediation, etc., should all be viewed as benefiting from transparent engagement aimed at maximizing access to justice. That the examples used here draw mainly on the drama of the courtroom comes from a desire to take head-on the fact that the greatest fears about judicial engagement (as well as the decided cases) appear to focus on the trial itself.30

II. WHAT THIS STRUCTURE SUGGESTS AS TO How juDGES SHOULD APPROACH CONCRETE ISSUES IN juDICIAL MANAGEMENT OF PRO SE CASES

The fundamental touchstone against which any change in procedure should be measured is whether it contributes to a truly neutral and accessible forum, that is to say whether it helps make sure that any litigant, regardless of whether he or she has a lawyer, is able to present his or her case to a neutral decision-maker. True neutrality is the creation of a forum in which such a goal is achieved. This is done by creating protocols, rules, and procedures which are, as a general matter, applied to all, regardless of whether they have lawyers, and which ensure that both those with and without lawyers have a chance to tell their story.

The above analysis should suggest that it is in fact far easier than is generally understood for a judge to move in this direction, and that if a judge does so, there will be no claim of non-neutrality. In other words, it is not "leaning over the bench," "putting a hand on the scale of justice," or "intervening to level the playing field." Rather it is, from day one, creating a fully level playing held in which those with or without lawyers are able to tell their stories and, in the words of Canon 3B(7), be "heard."