Document Type

Working Paper

Publication Date

2021

Abstract

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.

This Article contributes the first-ever multijurisdictional study of judicial behavior in lawyerless courts to literatures in civil procedure, judicial behavior, and access to justice. It examines three state civil courts in jurisdictions that rank at the top, middle, and bottom of the Justice Index (a ranking of state and national access to justice efforts). Despite major jurisdictional differences and contrary to conventional wisdom, judges’ behavior is surprisingly homogenous in the data. Rather than offering simplification and accommodation to pro se litigants as reforms suggest, judges maintained courts’ complexity and exercised strict control over evidence presentation. The Article theorizes that this unexpected finding reflects a core structural reality – civil courts were not designed for unrepresented people – and that judicial behavior is likely shaped by at least three factors that result from civil justice system design, including ethical ambiguity and traditional assumptions about a judge’s role, docket pressure, and pre-hearing case development provided to only one party.

In theory, judicial assistance to pro se litigants is a low-cost, practical solution to the problem of lawyerless courts. In practice, the vision for judicial role reform may overpromise what individual judges can do and underestimate implementation challenges. This study suggests that the legal and structural scaffolding to support judicial assistance to pro se litigants is woefully insufficient if such assistance is a critical access to justice reform goal. The Article concludes the vision for judicial role reform will not be realized without formal legal requirements, consistent feedback about implementation, and a reduction in existing docket pressures.

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