3.1 Courtroom Decorum
In accordance with the Code of Judicial Conduct, judges must maintain order and decorum in proceedings before the court, whether those proceedings are held in person, virtually, or in a hybrid format. Judges must also be patient, dignified, and courteous to all participants, including self-represented litigants, represented litigants, attorneys, witnesses, and staff, and must require similar conduct of lawyers, court personnel, and others who are subject to the judge’s direction and control.
For additional information regarding conducting remote hearings, see Guideline 5.8 below.
Commentary
Judges “shall require order and decorum in proceedings before the court.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.8 (A) (2016). Further, “judges have the inherent power to deal with contumacious conduct in the courtroom in order to preserve the dignity, order, and decorum of the proceedings.” Commonwealth v. Ulani U., 487 Mass. 203, 208 (2021), quoting Sussman v. Commonwealth, 374 Mass. 692, 695 (1978).
As part of their obligation to maintain proper decorum, judges must treat everyone in the courtroom with patience and courtesy and ensure that other participants do so as well. S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.8 (B) (2016). In particular, judges should treat self-represented litigants with the same respect that they would accord to represented litigants and counsel. See, e.g., Commonwealth v. Jackson, 419 Mass. 716, 721 (1995) (recognizing that self-represented litigants should be addressed with titles connoting equal respect to that afforded opposing counsel); Commonwealth v. Stokes, 11 Mass. App. Ct. 949, 949-950 (1981) (requiring self-represented defendant to conduct trial from prisoner’s dock, not counsel table, was improper, absent showing of necessity). To avoid the appearance of favoritism, judges and court staff under a judge’s control should also avoid overly familiar exchanges with counsel who regularly appear before the court.
While judges must facilitate the ability of all litigants, including self-represented litigants, to be fairly heard, judges retain broad discretion to control the presentation of arguments and evidence to ensure efficient use of the court’s time. See Demoulas v. Demoulas 428 Mass. 555, 590 n.32 (1998), quoting EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 609 (1st Cir.), cert. denied, 516 U.S. 814 (1995) (“[L]itigants have no absolute right to present their arguments in whatever way they may prefer. . . . The trial judge has broad authority to place reasonable limits on the parties’ presentation of their positions”); Mass. G. Evid. § 403 (2024) (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence”). See also Babaletos v. Demoulas Super Markets, Inc., 493 Mass. 460, 464-468 (2024) (trial judge did not abuse discretion in setting reasonable time limits on parties’ presentation of evidence); id. at 469 (appendix offering guidance for judges concerning imposition of time limits).
In highly contentious cases, maintaining decorum can be challenging, and it may be especially difficult during hearings conducted remotely. Judges should not tolerate improper behavior by any party or counsel. Examples of improper behavior include general rudeness, interruptions, bullying, or raised voices.
The following tips may be helpful in maintaining courtroom decorum and addressing inappropriate conduct:
- Judges should not conduct in-person court sessions without the presence of a court officer and should not hesitate to request additional court officers for a particular case or situation, if warranted.
- To forestall inappropriate behavior in the courtroom, judges may wish to explain courtroom etiquette and procedures at the outset of the proceeding. Remote hearings should begin with an explanation of the ground rules for a virtual proceeding, as discussed in Guideline 5.8.
- Judges must insist that all participants be respectful of the court and all individuals present in the courtroom. Judges must not allow participants to talk over one another or make demeaning or inappropriate comments, facial expressions, or gestures.
- Judges may find it helpful to set expectations by reviewing the issues that will be addressed, and, where appropriate, establishing time limits for the parties’ presentations. If litigants stray into irrelevant or inappropriate content, or they fail to adhere to time limits, judges should issue reminders as necessary.
- When addressing inappropriate behavior, judges should strive to remain composed. Judges should take pains to avoid creating the appearance of favoring any party on the merits.
- If an individual is particularly disruptive, a brief recess may calm or reset the courtroom. Persons who are out of control should not be allowed to remain in the courtroom if they can be removed.
The behavior of self-represented litigants who are persistently disruptive sometimes can be hard to interpret. It is not always immediately obvious (either in real time or from reviewing a transcript on appeal) whether a self-represented litigant is intentionally trying to disrupt the court process or genuinely does not understand the proceeding, due to impairment of some kind. See Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543 (2021). For example, the litigant may be unable or unwilling to stop talking – in a manner that is far outside the norm. In deciding how to respond to such a situation, the judge should keep in mind the stage of the proceeding and the purpose of the event. If the disruption occurs at a critical stage of the case (such as a waiver of counsel colloquy) the judge should consider making factual findings in the event that competence is raised as an appellate issue. See id. at 556-557. See also Guideline 2.4 on accommodations for self-represented litigants with disabilities.
A related issue is when self-represented litigants repeatedly file frivolous and groundless pleadings or motions. When a litigant persists in such conduct after being warned not to do so, a judge may issue an appropriately tailored order to prohibit the litigant’s future filings absent leave from the court. See, e.g., Bishay v. Superior Court Dep’t of the Trial Court, 487 Mass. 1012, 1013 (2021); State Realty Co. of Boston v. MacNeil, 341 Mass. 123, 123-124 (1960).
3.2 Bias, Prejudice, and Harassment
Judges must perform all duties of judicial office without bias, prejudice, or harassment, and must refrain from manifesting bias or prejudice or engaging in harassment. Judges also must not permit lawyers, court personnel, and others subject to the judge’s direction or control to engage in such prohibited behavior.
Commentary
“A judge shall perform the duties of judicial office, including administrative duties, without bias, prejudice, or harassment.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.3 (A) (2016). “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person’s status or condition.” Id., Rule 2.3 (B). Such behavior “impairs the fairness of the proceeding and brings the judiciary into disrepute.” Id., Rule 2.3 comment 1.
“[E]xamples of status or condition include but are not limited to race, color, sex, gender identity or expression, religion, nationality, national origin, ethnicity, citizenship or immigration status, ancestry, disease or disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” Id., Rule 2.3 comment 2.
Bias consists of “decisions made or actions taken on the basis of stereotyped attitudes regarding individuals of various racial and ethnic groups[,] rather than a fair, impartial appraisal of the merits with respect to each individual or situation.” Evan R. Seamone, Understanding the Person Beneath the Robe: Practical Methods for Neutralizing Harmful Judicial Biases, 42 Willamette L. Rev. 1, 19 (Winter 2006) (quoting Mass. Supreme Judicial Court, Comm’n to Study Racial and Ethnic Bias in the Courts, Equal Justice: Eliminating the Barriers, final report 1994). Bias may be either explicit or implicit. “With explicit bias, individuals are aware of their prejudices and attitudes toward certain groups.” U.S. Department of Justice, Understanding Bias: A Resource Guide.
“Unconscious or implicit bias is a discriminatory belief or association likely unknown to its holder. Multiple studies confirm the existence of implicit bias, and that implicit bias predicts real-world behavior.” Commonwealth v. Buckley, 478 Mass. 861, 878 n.4 (2018) (Budd, J., concurring). “Although everyone has implicit biases, research shows that implicit biases can be reduced through the very process of discussing them and recognizing them for what they are.” U.S. Department of Justice, Understanding Bias: A Resource Guide, at 2.
Any “words or conduct that may reasonably be perceived as manifesting bias or prejudice or engaging in harassment” must be avoided. S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.3 comment 1 (2016). “[E]xamples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; improper suggestions of connections between status or condition and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey an appearance of bias or prejudice to parties and lawyers in the proceeding, jurors, the media, and others.” Id., Rule 2.3 comment 3.
Furthermore, a “judge also shall not permit court personnel or others subject to the judge’s direction and control to engage in such prohibited behavior,” and “shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice or engaging in harassment against parties, witnesses, lawyers, or others, including bias, prejudice, or harassment based upon a person’s status or condition." Id., Rule 2.3 (B) & (C). See also S.J.C. Rule 3:07, Mass. R. Prof. C. Rule 4.4 (a), as amended, 490 Mass. 1321 (2022) (“In representing a client, a lawyer shall not (1) use means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person, . . . or (3) engage in conduct that manifests bias or prejudice against such a person based on race, sex, marital status, religion, national origin, disability, age, sexual orientation, or gender identity”).
However, judges and lawyers may “mak[e] legitimate reference to a person’s status or condition when it is relevant to an issue in a proceeding.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.3 (D) (2016); see S.J.C. Rule 3:07, Mass. R. Prof. C. 4.4 (a) (3) & comment 1B.
3.3 Ex Parte Communication
To minimize the risk of being exposed to prohibited communications, judges should ensure that self-represented litigants are informed that:
- 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; and
- the parties must file all written communications to the judge (e.g., pleadings, motions, affidavits) with the clerk’s office along with a notice that copies of those materials also have been provided to the opposing party.
If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge must make provision to promptly notify the parties of the substance of the communication.
Commentary
The Code of Judicial Conduct generally prohibits judges from having ex parte communications with a party or the party’s counsel without notice to and participation by all other parties or their representatives. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.9 & comment 1A (2016); see also Mass. R. Civ. P. 5 (a), as amended, 488 Mass. 1402 (2021) (requiring service of papers filed with the court on all parties); Olsson v. Waite, 373 Mass. 517, 533 (1977) (it is “unacceptable that one party should place . . . information before a judge intending that [the judge] rely on it in a contested matter without furnishing a copy of it to the other parties. It is contrary to the basic rules of fairness governing litigation under our adversary system, and it is not to be countenanced regardless of any rule of court on the subject”). Although it is understandable that misunderstandings may arise when a party is proceeding without counsel, “[a] judicial decision brought about by ex parte communications with the judge has no place in our adversary system.” Id. Accordingly, to avoid such misunderstandings, judges should take care to inform self-represented litigants that they must adhere to the foregoing guidelines in communicating with the judge.
“Whenever the presence of a party or notice to a party is required by [Rule 2.9 of the Code], it is the party’s lawyer, or if the party is self-represented, the party, who is to be present or to whom notice is to be given, unless otherwise required by law. For example, court rules with respect to Limited Assistance Representation may require that notice be given to both the party and the party’s limited assistance attorney.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.9 comment 2 (2016).
The Code specifies certain exceptions to the general prohibition against ex parte communications. These include: (1) ex parte communications for scheduling, administrative, or emergency purposes; (2) ex parte communications in specialty courts, as authorized by law; (3) consulting with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges; (4) ex parte communications made with the consent of the parties in an effort to settle civil matters; and (5) ex parte communications otherwise authorized by law. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.9 (2016). Judges contemplating receiving or engaging in ex parte communications under any of these exceptions should consult the Code for additional applicable limitations and requirements.