2.1 Legal Representation
At the earliest opportunity in cases involving self-represented litigants, judges should explain to self-represented litigants that:
- self-represented litigants have a right to represent themselves;
- self-represented litigants have the right to hire and be represented by counsel throughout the case, or to be represented by counsel for discrete portions of a case under rules permitting Limited Assistance Representation;
- where a Lawyer for the Day program, clinic or other program is available, self-represented litigants may be eligible to take advantage of these services;
- counsel for the opposing party does not represent and may not advise a self-represented litigant except to suggest that the self-represented litigant secure independent counsel; and
- while the judge may provide some legal information at various stages of the case, the judge will not be able to provide legal advice to them as an attorney would be able to do, because the judge must remain impartial.
Judges are expected to be knowledgeable about civil matters in their court department where indigent litigants have a right to appointed counsel. In such cases, judges must inform litigants of that right and explain the process for obtaining appointment of counsel. In addition, when there is a right to appointed counsel, and a litigant chooses to self-represent, judges should explain the challenges of representing oneself in litigation.
Judges should refer litigants to resources that provide information about obtaining counsel but may not personally solicit legal representation for a litigant.
Commentary
“[I]ndividuals in criminal and civil matters have a constitutional right to represent themselves.” Commonwealth v. Means, 454 Mass. 81, 89 (2009). Where individual litigants appear without counsel, judges should inform them not only of that right, but also of available options to seek counsel if they wish to be represented.
In particular, where indigent civil litigants have a right to appointed counsel, judges must inform them of that right. See, e.g., L.B. v. Chief Justice of the Probate and Family Court Dep’t, 474 Mass. 231, 246 (2016) (indigent parent who presents meritorious claim to remove guardian for minor child, or to modify terms of guardianship, has due process right to counsel, and to be so informed); Guardianship of V.V., 470 Mass. 590, 592-593 (2015) (“an indigent parent whose child is the subject of a guardianship proceeding is entitled to, and must be furnished with, counsel”); Adoption of Meaghan, 461 Mass. 1006, 1007 (2012) (child and indigent parent are entitled to appointed counsel in adoption proceeding, whether it is commenced by state agency or prospective adoptive parents); G. L. c. 119, § 29 (“Whenever the department or a licensed child placement agency is a party to child custody proceedings, the parent, guardian or custodian of the child, or a parent or guardian of an adult who is the responsibility of the department . . . shall have and be informed of the right to counsel at all such hearings . . . , and that the court shall appoint counsel if the parent, guardian or custodian is financially unable to retain counsel”); S.J.C. Rule 3:10, § 2, as appearing in 475 Mass. 1301 (2016) (“If any party to a proceeding appears in court without counsel where the party has a right to be represented by counsel under the law of the Commonwealth, the judge shall advise the party or, if the party is a juvenile, the party and a parent or legal guardian, where appropriate, that: (a) the party may be entitled to the appointment of counsel at public expense; and (b) the Committee for Public Counsel Services will provide counsel to the party at no cost or at a reduced cost if the court finds that the party wants but cannot afford counsel”).
Where litigants have a right to appointed counsel and nevertheless choose to represent themselves, judges should inform them of the challenges of doing so, noting in particular that they cannot rely on the judge or opposing counsel for legal advice, as discussed below. In appropriate cases, the judge may decide that it would be prudent to assign standby counsel.
Where litigants do not have a right to appointed counsel, judges should direct those litigants to resources such as Court Service Centers, Lawyer for the Day programs, and online websites where they can obtain information about lawyer referral services, pro bono counsel, and legal aid organizations. Judges also should explain that litigants may retain counsel to represent them for only certain tasks or portions of the case. See Trial Court Rule XVI: Uniform Rule on Limited Assistance Representation. Judges may not, however, personally solicit counsel for an unrepresented litigant. See Supreme Judicial Court Committee on Judicial Ethics, Frequently Asked Questions.
Judges should also advise litigants appearing without counsel of the consequences of representing themselves. Judges should inform litigants appearing without counsel that judges must remain impartial. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.2 (2016). Although judges can provide legal information about the proceedings, they cannot provide legal advice the way a lawyer would. See Guideline 1.6; S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A. Although judges are permitted to make reasonable accommodations for self-represented litigants, those litigants generally still must comply with applicable procedural requirements. See Guidelines 1.1, 1.5; S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.2 comment 4 & Rule 2.6 comment 1A. Judges should also warn self-represented litigants that counsel for the opposing party does not represent them and cannot advise them, except to recommend that they seek independent counsel. See Mass. R. Prof. C. 4.3, as appearing in 471 Mass. 1442 (2015).
2.2 Plain Language
Judges should use plain language in all oral and written communications with self-represented litigants, avoid legal jargon, and minimize the use of complex legal terms. Judges should make reasonable efforts to ensure that litigants understand what has been communicated to them.
Commentary
Most self-represented litigants are unfamiliar with complicated legal terms. The use of such terms can delay proceedings and necessitate lengthy explanations of concepts that are more readily understood if stated in plain language.
While Massachusetts has not codified the use of plain language, judges should use plain language whenever possible. On January 31, 2023, then-Chief Justice Jeffrey A. Locke issued an Order on Forms Management for the Massachusetts Trial Court which provides that “all new and revised forms and instructional materials must use plain language.” The Order adopted the Massachusetts Trial Court Readability Guidelines for Printed Self-Help Materials and Forms. The following suggestions contained therein are useful not only with regard to forms but also with regard to oral communications:
- assume that the court user has a fifth-grade or lower literacy in English;
- use the active voice. (e.g., “Submit the form” vs. “The form should be submitted.”); and
- define difficult legal terms, but do not necessarily eliminate them.
Further instructions on the use of plain language can be found in the Superior Court Guidelines for Drafting Model Jury Instructions (2021), which explain in Section 1.1 that plain language and clarity should be used because “we serve justice better if we provide instructions that jurors of all backgrounds can actually absorb and follow.” These Guidelines offer a multitude of practical suggestions for how to use plain and clear language, such as:
- use short sentences and paragraphs;
- be brief;
- use simple words;
- avoid abstract terms;
- avoid legalisms;
- avoid the passive voice;
- use positive rather than negative statements; and
- be direct.
To learn more about plain language best practices, judges should consult Applying Plain Language at the Trial Court, a training program is available through the TC Learning Center and at PlainLanguage.gov.
2.3 Language Barriers
Judges must be attentive to language barriers experienced by self-represented litigants and must ascertain whether a litigant has limited English proficiency. Judges must provide qualified interpreters to self-represented litigants who are of limited English proficiency throughout the court proceeding.
Commentary
The importance of language access in our courts must not be overlooked. Not only is language access required by the Massachusetts General Laws, but the failure to provide adequate language access is a form of national origin discrimination prohibited by Title VI of the Civil Rights Act of 1964 and by Executive Order 13166, as it relates to recipients of Federal funds. See U.S. Dep’t of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455-41472 (June 18, 2002). Pursuant to G. L. c. 221C, § 2, judges must not require any litigant with limited English proficiency to go forward with any stage of a legal proceeding without the assistance of a qualified interpreter, or a certified interpreter if no qualified one is available. See G. L. c. 221C, § 2. Because “certified” and “qualified” interpreters are defined with specificity by G. L. c. 221C, § 1, judges should not assume that friends or family members accompanying the litigant are proficient enough in English to serve as translators or interpreters. See G. L. c. 221C, § 1 (defining “certified interpreter” as one duly trained and certified under the coordinator of interpreter services and “qualified interpreter” as one who has passed an examination and been qualified for interpreting in the federal courts in Massachusetts.)
When, during court proceedings, a judge becomes aware of the need for an interpreter, the judge should suspend or continue the hearing until an interpreter is available. Judges are encouraged to familiarize themselves with the process and procedure for court staff to request an interpreter when one has been ordered by the court, as set forth in Section 8.03 of the Standards and Procedures of the Office of Language Access. Additional information regarding language access services in the Trial Court can be found in the 2014 Trial Court Language Access Plan (LAP) and the Standards and Procedures of the Office of Language Access.
The rights of individuals who are deaf or hard of hearing are addressed separately in Guideline 2.4, as those rights are governed by the Americans with Disabilities Act (ADA), and G. L. c. 6, § 194, rather than Title VI of the Civil Rights Act and G. L. c. 221C.
2.4 Disabilities
Judges must be attentive to self-represented litigants with disabilities and ensure that they are given reasonable accommodation. When it is questionable whether a self-represented litigant is competent to adequately represent their own interests, judges should consider utilizing options that are available in their court, such as guardians ad litem, court clinicians, or appointment of counsel.
Commentary
Under the Americans with Disabilities Act (ADA) and Massachusetts law, qualified court users with disabilities are entitled to request certain aids and services that are needed for them to participate equally in the services, programs, and activities of our courts. See 42 U.S.C. §§ 12101-12213; Massachusetts Constitution, as amended by Article 114 of the Amendments; Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103(a); G. L. c. 221, § 92A (providing that individuals who are deaf or hearing-impaired shall be appointed a qualified interpreter to interpret the court proceedings and assist in communications with counsel). These laws collectively support fair and equitable treatment of individuals with disabilities.
Under the ADA, disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarding as having such an impairment.” 42 U.S.C. § 12102. Some examples of qualifying ADA disabilities are ADHD; vision impairments; emotional or mental illness; a specific learning disability (e.g., dyslexia); cancer; cerebral palsy; hearing impairment; diabetes; epilepsy; HIV infection; intellectual disabilities; mobility impairments; drug addiction; and alcoholism. See 28 C.F.R. § 36.105 (b).
Judges should allow “reasonable” requests for accommodation from court users with disabilities, i.e., those that do not fundamentally alter the nature of the court’s services, programs, or activities, or result in an undue financial or administrative burden. See Exec. Order No. 13217, 66 Fed. Reg. 33155 (June 21, 2001) (“States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the State”). Some examples of accommodations that may be “reasonable” are reassigning a hearing to an accessible site; allowing frequent breaks; and providing an assistive listening device or computer-assisted real-time transcription (CART).
Judges are encouraged to familiarize themselves with the most current information on ADA Accessibility at the Courts, and direct questions to the ADA Coordinator for that court location.
In general, judges have the power to appoint guardians ad litem, both as a matter of inherent authority and by virtue of various statutes, to protect the rights of persons who lack the capacity to do so on their own. See, e.g., Bower v. Bournay-Bower, 469 Mass. 690, 698-699 (2014) (“a probate court possesses broad and flexible inherent powers,” including “authority . . . to appoint a guardian ad litem in order to protect the interests of a person in a proceeding before it or to ensure the proper functioning of the court”); Commonwealth v. Nieves, 446 Mass. 583, 593 n.9 (2006) (“A judge has inherent authority to appoint a guardian ad litem”); Adoption of Georgia, 433 Mass. 62, 68 (2000) (citing judge’s inherent and statutory authority to appoint guardian ad litem); G. L. c. 190B, § 1-404 (a) (authorizing appointment of guardian ad litem under Massachusetts Uniform Probate Code for “a minor, a protected person, an incapacitated person or a person not ascertained or not in being [who] may be or may become interested in any property, real or personal or, in the enforcement or defense of any legal rights”); G. L. c. 203E, § 305 (authorizing appointment of guardian ad litem under Massachusetts Uniform Trust Code to “act on behalf of a minor, incapacitated or unborn individual or a person whose identity or location is unknown”); G. L. c. 208, § 15 (authorizing appointment of a suitable guardian to appear and answer for a defendant incapacitated by reason of mental illness in divorce action); G. L. c. 215, § 56A (authorizing appointment of guardian ad litem to investigate in proceedings relating to care, custody or maintenance of minor children and in certain other matters); G. L. c. 231, § 140C1/2 (authorizing appointment of guardian ad litem in settlements involving personal injury to minor or incompetent person). See also Supplemental Probate and Family Court Rule 5 (“[W]henever it shall appear that a minor, intellectually disabled person, a person under disability, an incapacitated person, a person to be protected or a person not ascertained or not in being is interested in any matter pending, a guardian ad litem for said person may be appointed by the court at its discretion”).
Judges should acquaint themselves with the practice for appointment of guardians ad litem in their court department.
2.5 Indigency
Judges must ensure that inability to pay court costs and fees due to indigency does not prevent self-represented litigants from proceeding with their cases in a timely manner or obtaining necessary documents or services. Judges must familiarize themselves with the statutes and case law regarding indigency and waiver of costs and fees, and must promptly determine questions of indigency and waiver requests.
Commentary
Under the Indigent Court Costs Law, G. L. c. 261, §§ 27A-27G, indigent parties may request waivers or reductions of various court fees and other costs incurred during litigation. See Adjartey v. Central Div. of the Hous. Court Dep’t, 481 Mass. 830, 840 (2019); Reade v. Secretary of the Commonwealth, 472 Mass. 573, 574 (2015), cert. denied, 578 U.S. 946 (2016). An application for waiver or reduction of court fees and costs is first reviewed by the court clerk, but if the application is incomplete or does not adequately demonstrate indigency, the matter is referred to a judge. The judge’s responsibilities in reviewing applications for waivers due to indigency are set forth in G. L. c. 261, § 27C, and discussed in great detail in Adjartey, supra, at 840-846.
Judges should be familiar with the requirements of the statute and guidance contained in Adjartey. Among other things, judges must be mindful of the confidential nature of affidavits of indigency and must be cognizant of the importance of issuing decisions on applications for indigency waivers as soon as possible. When indigency determinations are delayed, and applicants are unable to obtain relevant documents or services in advance of an upcoming court appearance, judges should exercise their discretion to postpone hearings to ensure that all parties have sufficient time to prepare. See Adjartey, supra, at 841-843.