The Keys to the Kingdom: Judges, Pre-Hearing Procedure, and Access to Justice
Copyright 2018 by The Board of Regents of the University of Wisconsin System; Reprinted by permission of the Wisconsin Law Review.
Judges see themselves as – and many reforming voices urge them to be – facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges' roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures.
This article analyzes pre-hearing procedures using more than 5,000 individual unemployment insurance cases, largely involving self-represented litigants, to investigate how judges and procedure interact to expand or contract access to the hearing room and thus to justice. The data show significant variation in how judges apply these procedures and in parties' case outcomes. These findings underscore the importance of pre-hearing procedures and judicial decisions that grant or deny access to the courtroom, and the barriers that judicial application of these procedures can present for self-represented litigants. The findings also suggest that changes to judicial behavior – through suggestion, training, or ethical codes – may be insufficient to address this aspect of access to civil justice.