Guide Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (without commentary)

These guidelines provide guidance to judges in conducting court proceeding involving parties without attorneys.

Introduction

The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (Guidelines) were approved by the Justices of the Supreme Judicial Court in April, 2006. The Guidelines were developed by a Subcommittee on Judicial Guidelines (Subcommittee) established by the Supreme Judicial Court Steering Committee on Self-Represented Litigants (Steering Committee).(1) The Subcommittee explained the purpose of the Guidelines as follows

While the legal and ethical constraints upon the courts and the judiciary, such as those contained in the Code of Judicial Conduct, apply with equal force to cases involving self-represented litigants, judges have broad discretion within these boundaries. These guidelines have been developed to assist judges in recognizing the areas in which they have discretion and to assist them in the exercise of that discretion.

The Guidelines are reproduced here by themselves and with Commentary that was developed by the Subcommittee and endorsed by the Steering Committee.(2) The Commentary contains suggestions and references for judges who wish to exercise their discretion consistent with the Guidelines.

(1) The members of the Steering Committee are: Hon. Cynthia J. Cohen, Chair, Associate Justice, Appeals Court; Marlene M. Ayash, Title Examiner II/Administrative Attorney, Land Court; Hon. Thomas P. Billings, Associate Justice, Superior Court; Maura S. Doyle, Clerk, Supreme Judicial Court for Suffolk County; Hon. Peter F. Doyle, Presiding Justice, Newburyport District Court; Hon. Diana H. Horan, First Justice, Worcester Housing Court; Hon. Thomas C. Horgan, Associate Justice, Boston Municipal Court; Thomas R. Lebach, Clerk Magistrate, Plymouth Juvenile Court; Marnie Warner, Law Library Coordinator, Trial Court Law Libraries.

The members of the Subcommittee are: Hon. Elaine M. Moriarty, Chair, Associate Justice, Suffolk Probate and Family Court; Hon. Thomas P. Billings; Hon. Peter F. Doyle; Hon. Diana H. Horan; Hon. Thomas C. Horgan. The late Lawrence J. Wernick, Associate Justice, Superior Court, was a member of the Steering Committee and the Subcommittee until February, 2003.

(2) The Commentary has not been reviewed by the Justices of the Supreme Judicial Court.

 

1. General practices

1.1 Plain English. Judges should(3) use plain English and minimize the use of complex legal terms when conducting court proceedings.

1.2 Language barriers. Judges should be attentive to language barriers experienced by self-represented litigants. Judges should take the necessary steps to provide qualified interpreters to self-represented litigants who are not fully conversant in English or who are hearing impaired.

1.3 Legal representation. Judges should inform litigants that they have the right to retain counsel and the right to be represented by counsel throughout the course of the proceedings. Judges should also acknowledge that parties have a right to represent themselves. Judges should confirm that the self-represented litigant is not an attorney, understands the right to retain counsel, and will proceed without an attorney. Judges also may inquire into factors relevant to an understanding of self-representation.

1.4 Application of the law. Judges shall apply the law without regard to the litigant's status as a self-represented party and shall neither favor nor penalize the litigant because that litigant is self-represented.

1.5 Materials and services for self-represented litigants. Judges should encourage the provision of information and services to better enable self-represented litigants to use the courts. Judges also should encourage self-represented litigants to use these resources.

(3) The term "should" is used throughout the Guidelines to indicate that the conduct referenced is recommended but not mandatory.

2. 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.

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.

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.

3. Guidelines for conducting hearings

3.1 Courtroom decorum. Judges should maintain courtroom decorum cognizant of the effect it will have on everyone in the courtroom, including self-represented litigants. Judges should ensure that proceedings are conducted in a manner that is respectful to all participants, including self-represented litigants.

3.2 Evidence. Judges shall adhere to the applicable rules of evidence, but may use their discretion, when permissible, to provide self-represented litigants the opportunity to meaningfully present their cases. Judges may ask questions to elicit general information and to obtain clarification. Judges should explain why the questions are being asked and that they should not be taken as any indication of the judge's opinion of the case.

3.3 Right of self-representation. In jury trials, judges should ask self-represented litigants whether they want a right to self-representation instruction.

3.4 Approval of settlement agreements. Judges should review the terms of settlement agreements, even those resulting from ADR, with the parties. Judges should determine whether the agreement was entered into voluntarily. If there are specific provisions through which a self-represented litigant waives substantive rights, judges should determine, to the extent possible, whether the waiver is knowing and voluntary.

4. Guidelines for post-hearing interaction

4.1 Issuing the decision. Judges should exercise discretion in deciding whether to issue a decision at the close of the hearing while both parties are present, or to inform the parties that the matter will be taken under advisement and that a written decision will be mailed to them. In cases where there is no immediate need to enter an order, the judge may inform the parties that the judge wishes to consider their evidence and arguments before making a decision. If possible, the judge should give a time frame within which the case will be decided.

4.2 Appeals. If asked about the appellate process, judges may refer the litigant to the appropriate authority.

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