1. Guidelines for Pre-Hearing Interaction

2.1 Trial process. Judges should make a reasonable effort to ensure that self-represented litigants understand the trial process. Judges should inform litigants that the trial will be conducted in accordance with applicable evidentiary and court rules.

Commentary
When explaining the trial process, it is proper to do so in the same manner that a judge would explain it to a jury. Although judges may explain rulings, court policies and procedures, judges may not tell litigants what legal action to take. The following are examples of specific explanations that judges may wish to give

Burden of production and proof

  • Parties bringing the action are responsible for presenting evidence to support their claims. A self-represented litigant must adhere to the essential requirements of presenting a case; a judge will not assume anything in support of the case if it has not been properly presented.
  • The parties, not the court, are responsible for subpoenaing witnesses and records.
  • There are limits on the kinds of evidence that may be admitted.
  • The evidence admitted by the court must prove the elements of the plaintiff's claim according to the required legal standard.
  • In the judge's discretion, the elements of claims and defenses, as well as the burden of proof may be explained in the same manner that they would be explained to a jury. See, e.g., Massachusetts Superior Court Civil Jury Instructions § 14.1.19 (Mass. Continuing Legal Educ. 1997 & 2003 supp.) (elements of a breach of contract claim); Massachusetts Superior Court Civil Jury Instructions §§ 1.18, 1.19 (Mass. Continuing Legal Educ. 1997 & 2003 supp.) (preponderance of the evidence standard).

Ex parte communication

  • The parties may not communicate about the case with the judge outside formal court proceedings.
  • The judge, as a general rule, is prohibited from communicating with a party unless all parties are aware of the communication and have an opportunity to respond or be present.
  • The parties must file all communications to the judge (complaints, motions, affidavits) with the clerk's office along with a notice that copies of those materials also have been given to the opposing party.

Judge as fact finder

  • In some proceedings the case will be heard without a jury; in such proceedings, the judge is the fact finder and the facts are determined by the judge from the evidence presented. For example, if A presents a witness who testifies the light is red and B presents a witness who testifies the light is green, it is the judge's responsibility to determine the color of the light and that determination becomes a fact of the case.

Courtroom conduct

  • Except when examining or cross-examining witnesses, litigants should address their remarks and questions to the judge. They should not direct comments to the opposing party or counsel for the opposing party.

2.2 Settlement. In cases in which settlement may be appropriate, judges may discuss the possibility of settlement. This may occur at any stage in the litigation, but particularly at a case management, pretrial, or status conference.

Many cases can be settled equitably with the involvement of the judge; however, to avoid later misunderstandings, Judges are strongly urged to record all settlement conferences

It may be particularly helpful for the judge to provide the opportunity for the parties to discuss settlement in the presence of the judge in cases where one party is self-represented and the other party has an attorney. In such cases, the self-represented litigant may be afraid to deal with the attorney for the opposing party outside of court, and the attorney for the opposing party may be reluctant to negotiate with the self-represented litigant for fear of being accused of overreaching or misleading the self-represented litigant.

Judges must keep in mind that "[i]t is inappropriate for [judges] in c. 209A proceedings to attempt to reconcile the parties or mediate disputes." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:01 & commentary (Dec. 2000). Additionally, judges should not ask a self-represented litigant who is alleged to be the victim of domestic abuse to engage in settlement negotiations with an alleged abuser present. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:01 commentary (Dec. 2000).

At settlement conferences, judges should explain that the conference is an opportunity for the parties to resolve the issues themselves without the formality and expense of a trial; that they have the ability to reach their own resolution of the issues and to "write the judgment" through an agreement which is tailored to their needs. In addition to explaining that the judge is there to listen to both parties and ensure that the proceedings are conducted fairly, judges also should tell the parties that, if they are unable to settle, they have a right to a trial at which a judge or jury will make the decision based on the evidence admitted and the applicable law, and that this result may differ from what each of the parties is seeking. Judges may point out the complexities of the case and the advisability of obtaining or at least consulting with counsel.

In cases involving self-represented litigants, just as in cases where all parties are represented, judges may encourage settlement, but they may not require parties to reach a settlement. See Furtado v. Furtado, 380 Mass. 137, 151-152 (1980) (judge must show restraint in urging settlement on the parties); Slaughter v. McVey, 20 Mass. App. Ct. 768, 770 (1985) (judge who required parties to reach a definitive settlement before they left the courthouse over-exercised his privilege of intervention by placing excessive pressure on the parties to settle); Graizzaro v. Graizzaro, 36 Mass. App. Ct. 911, 912 (1994) (judges may appropriately urge settlement, but must avoid using their power to coerce settlements from recalcitrant parties, must maintain the appearance and substance of open-mindedness, and may not penalize a party for insisting on the right to have the court resolve the dispute). See also S.J.C. Rule 3.09, Canon 3 (B) (7) (d) & commentary (2003) (canon states that "[a] judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle civil matters pending before the judge," implicitly acknowledging that judges can play an important role in the settlement process).

"Where the judge is the trier of fact, he must be most scrupulous both to avoid losing his impartiality and to maintain his unfamiliarity with disputed matter which may come before him and with extraneous matters which should not be known by him." Furtado v. Furtado, 380 Mass. 137, 151-152 (1980). See also Allen v. Kidd, 197 Mass. 256, 261 (1908) (judge exceeded judicial authority by informing jury he suggested the parties settle and plaintiff rejected his suggestion); Harris v. Board of Trustees of State Colleges, 405 Mass. 515, 528 (1989) (judge's intimations as to probable disposition of case made during pretrial conference not improper and did not support a claim of bias); Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 13 (1997) (university not entitled to new trial based on judge's refusal to recuse himself, notwithstanding comments judge made during settlement conferences and jury selection that university perceived as negative).

If the parties do not settle, a judge's participation in settlement discussions may disqualify the judge from sitting as fact finder in the trial of that matter. See Furtado v. Furtado, supra. Whether the judge's participation in settlement discussions requires his disqualification depends on the circumstances of the case. Ibid. See generally J. Goldschmidt & L. Milord, Judicial Settlement Ethics: Judges Guide 21-29 (American Judicature Society 1996); Agnes, Some Observations and Suggestions Regarding the Settlement Activities of Trial Judges, 31 Suffolk U. L. Rev. 263 (1997).

2.3 Alternative dispute resolution (ADR). When a case is appropriate for ADR, judges should discuss the availability and benefits of such services. S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6, 427 Mass. 1309 (1999). This may occur at any stage in litigation, but particularly at a case management, pretrial, or status conference.

Commentary
In cases involving self-represented litigants, just as in cases where all parties are represented, the parties may be able to settle their disputes early and effectively using mediation, case evaluation, arbitration, or another form of alternative dispute resolution. ADR often helps parties maintain their ongoing family or business relationships after the stress of litigation, and can be an effective case management tool, eliminating many months of litigation.

It is important to note that judges may not order ADR in abuse prevention proceedings, see G. L. c. 209A, ' 3 (sixth par.) ("No court shall compel parties to mediate any aspect of their case."). Additionally, "[i]t is inappropriate for [judges] in c. 209A proceedings to attempt to reconcile the parties or mediate disputes." Guidelines for Judicial Practice: Abuse Prevention Proceedings ' 1:01 & commentary (Dec. 2000). Judges also should not order ADR in cases in which there are issues of domestic violence.

Judges should inform the parties that: (1) the decision to participate in a dispute resolution process is voluntary; (2) they are not required to make offers and concessions or to settle; (3) if the parties do not settle the matter through ADR, they still may have the matter tried in court; (4) courts cannot impose sanctions if the parties do not settle, but courts may impose sanctions for failure, without good cause, to attend a scheduled dispute resolution session; (5) the court will give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties; (6) in cases in which one or more of the parties is not represented by counsel, a neutral has the responsibility, while maintaining impartiality, to ask the parties to consider whether they have the information needed to reach a fair and fully informed settlement of the case; (7) the court may establish a deadline for the completion of a court-connected dispute resolution process, which may be extended by the court upon a showing that continuation is likely to assist in reaching resolution; (8) communication with the court during the dispute resolution process is conducted only by the parties or with their consent; and (9) unless the parties agree otherwise, the ADR program or neutral will provide the court only with: a request by the parties for additional time to complete dispute resolution, the neutral's assessment that the case is inappropriate for dispute resolution, or the fact that the dispute resolution process has concluded without parties having reached agreement. See S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6, 427 Mass. 1312-1314 (1999). See generally Massachusetts Supreme Judicial Court/Trial Court Standing Committee on Dispute Resolution, A Guide to Court-Connected Alternative Dispute Resolution Services.

Judges may require parties and/or their attorneys to attend a screening session or an early intervention event regarding court-connected dispute resolution services. S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6 (b), 427 Mass. 1312 (1999). In addition, judges may impose sanctions for failure without good cause to attend a mandatory screening session. Id.


  1. This Commentary is intended to supply suggestions and resources for judges who wish to exercise their discretion consistent with the Guidelines. It was authored by the Subcommittee on Judicial Guidelines of the Supreme Judicial Court Steering Committee on Self-Represented Litigants, and endorsed by the full Committee. It has not been reviewed by the Justices of the Supreme Judicial Court.