Judicial Guidelines for Civil Cases with Self-Represented Litigants: 5. The Litigation Process

These guidelines provide statements of principle as well as suggested techniques for managing litigation with one or more self-represented parties.

5.1 ​Adapting the Litigation Process for Self-Represented Litigants

Judges must afford self-represented litigants due process and provide them with the opportunity to meaningfully present their claims and defenses. In order to fulfill this obligation, judges may, generally should, and sometimes must, adapt the litigation process to provide reasonable accommodations to the self-represented.

Appropriate accommodations include, but are not limited to: construing pleadings liberally, explaining legal concepts, providing information about procedural and evidentiary requirements, making referrals to available resources, and asking questions to elicit or clarify facts necessary for decision. See Guidelines 5.2 through 5.8 for guidance as to specific aspects of the litigation process.

Commentary

As discussed in Guidelines 1.2 and 1.3 and the related commentary, the constitutional right to due process requires judges to make such accommodations as are necessary to give self-represented litigants the opportunity to meaningfully present their claims and defenses and ensure a fair proceeding. See, e.g., Turner v. Rogers, 564 U.S. 431, 435, 449 (2011); Adoption of Patty, 489 Mass. 630, 631-632, 638, 648 (2022); Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 133-138 (2020). “[J]udges must ensure that all parties, represented and unrepresented alike, receive a fair trial and that principles of due process are followed. . . . ‘[T]he judge’s function . . . is to be the directing and controlling mind during the . . . proceedings, and to provide a self-represented party with a meaningful opportunity to present his or her case by guiding the proceedings in a neutral but engaged way.’” Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 484 (2021), quoting CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283 (2017) (internal quotation marks and brackets omitted). Judges must play “an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016). 

“In the interest of ensuring fairness and access to justice, judges may make reasonable accommodations that help self-represented litigants to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law,” provided that these “accommodations do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality.” Id. Examples of permissible accommodations include construing pleadings liberally; providing brief information about the proceeding and evidentiary and foundational requirements; asking neutral questions to elicit or clarify information; modifying the manner or order of taking evidence or hearing argument; attempting to make legal concepts understandable; explaining the basis for a ruling; and making referrals as appropriate to any resources available to assist the litigants. Id. See Guideline 1.1; see also Guideline 1.6 (judges and court staff may properly provide legal information explaining how the court system works, but not legal advice).

These accommodations not only are permissible as a matter of judicial ethics, but also are recommended best practices that judges should follow in cases involving self-represented litigants to ensure that they understand the proceedings and that their cases are decided fairly on the merits. See, e.g., Ensuring the Right to Be Heard: Guidance for Trial Judges in Cases Involving Self-Represented Litigants, Institute for the Advancement of the American Legal System (November 2019), 11-16; Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers, Judicial Council of California (April 2019), 2-1–2-8; “Proposed Best Practices for Cases Involving Self-Represented Litigants,” in Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, American Judicature Society (2005), 53-57; Rebecca Albrecht et al., Judicial Techniques for Cases Involving Self-Represented Litigants, Judges’ Journal 42:1 (2003).

Furthermore, in some cases, depending on the circumstances, judges must make certain accommodations for self-represented litigants to meet the requirements of due process or other applicable statutes or court rules and orders. For example, judges may be required to:

• liberally construe pleadings or other arguments presented by self-represented litigants, see Boston Hous. Auth. v. Y.A., 482 Mass. 240, 247 (2019) (reversing lower court order against tenant, where tenant’s “mention of domestic violence as a possible factor in her failure to make the required [rent and arrearage] payments was a sufficient signal to the judge to inquire further to elicit additional facts in order to determine whether [tenant] was entitled to [Violence Against Women Act] protection”); I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561 (2013) (judge erred in concluding that self-represented litigant waived objection to personal jurisdiction, where it was sufficiently clear from litigant’s statements that he was objecting to court’s exercise of personal jurisdiction, even though he did not use words “personal jurisdiction”); Loebel v. Loebel, 77 Mass. App. Ct. 740, 743 n.4 (2010) (self-represented mother’s “inability to articulate in the moment the precise procedural vehicle to obtain . . . a hearing” to provide further support for her argument for custody of her children “should not have ended the matter”; holding that judge abused discretion in denying mother opportunity to present new evidence to address best interests of children);
• allow reasonable flexibility in applying procedural rules, see Morse, 99 Mass. App. Ct. at 484-485 (citing principles of due process in holding that judge abused discretion in denying self-represented tenant’s motion to file late answer in eviction proceeding, where prejudice to tenant, depriving him of statutory right to present affirmative defense, far outweighed any inconvenience to landlord); Glendale Assocs., LP v. Harris, 97 Mass. App. Ct. 454, 455, 464-465 (2020) (entry of default judgment against tenant for failure to file answer was “not consonant with principles of due process” where tenant had denied allegations against him and had been litigating case); and
• make sure that self-represented litigants have notice of critical questions in the case, such as issues that would be dispositive, and elicit information from them concerning these critical questions when necessary, see Turner, 564 U.S. at 435, 449 (incarceration of indigent self-represented parent for failure to pay child support violated due process, where parent did not receive clear notice that his ability to pay would constitute critical question in his civil contempt proceeding, and he did not receive form designed to elicit information about his financial circumstances); Grullon, 485 Mass. at 137-138 (judge erred in finding self-represented defendant in civil contempt for failure to pay child support, where judge did not inquire into whether defendant had present ability to pay); cf. Boston Hous. Auth. v. Y.A., supra.

5.2 Explaining the Litigation Process

At the earliest opportunity, and at each court appearance, judges should take steps to ensure that self-represented litigants understand the litigation process, including discovery, motion practice, and trial. Judges should explain the nature and scope of the particular event before the court and the process to be followed. Judges should also explain that the litigation process is governed by court rules that apply to all parties, including self-represented litigants, and should direct self-represented litigants to resources to assist them in understanding what is required of them.

Commentary

In fulfilling their “affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard,” judges may “provide brief information about the proceeding and evidentiary and foundational requirements” to a self-represented litigant. S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 & comment 1A (2016). Judges may also “attempt to make legal concepts understandable” and “make referrals as appropriate to any resources available to assist the litigants.” Id. This should be done on the record. See generally Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, American Judicature Society (2005), 2 (“It does not raise reasonable questions about a judge’s impartiality for the judge to explain to all parties how the proceedings will be conducted, for example, to explain the process, the elements, that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered”).

Guidance on how to provide explanations that give the parties appropriate legal information, rather than impermissible legal advice, can be found in Guideline 1.6 and the related commentary.

5.3 ​Explaining the Trial or Hearing Process

Judges should take steps to ensure that all litigants, including self-represented litigants, understand the process and ground rules for trials and evidentiary hearings. While the content will depend upon the nature of the event, in many cases the judge should inform the parties about: 

• the role of each participant, including the judge and staff; and
• the scope of the issues to be decided. 

The judge should also explain to the parties that:

• where applicable, a case may be tried with either a judge or jury as fact finder; 
• the case will be decided based upon on the law and the evidence;
• each side will have the opportunity to present evidence;
• the judge will guide the proceedings and decide what evidence can be considered;
• the judge may ask questions, but the questioning should not be interpreted as providing assistance to one side or the other, or as indicating the judge’s opinion of the case;
• the litigants, not the court, are responsible for subpoenaing witnesses and records; and
• except when examining or cross-examining witnesses, self-represented litigants, as well as counsel for any represented party, should address their remarks and questions to the judge and not to the opposing party or opposing counsel. 

Commentary

As discussed in the commentary to Guideline 5.2, providing self-represented litigants with information about the proceedings and applicable procedural requirements for trials and other evidentiary hearings is both appropriate and encouraged. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016) (judges may properly “provide brief information about the proceeding and evidentiary and foundational requirements” to enable self-represented litigants to understand what they have to do to present their case). Where applicable, judges should inform litigants of the options for trying the case with or without a jury, and how that decision may impact the way the proceeding is conducted. See Superior Court Rule 20 (2) (h) and 20 (8), and Land Court Rule 14 for examples of non-jury trial options. 

Furthermore, where both parties are self-represented and there is no jury, judges may “facilitat[e] the ability of all litigants” to be fairly heard on the merits of their case by modifying trial procedure or adopting an informal process. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 & comment 1A (2016). For example, judges may allot each party a set amount of time to tell the judge relevant facts, without interruption from the opposing party, and the judge will ask questions as needed. See generally Jona Goldschmidt et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers, American Judicature Society (1998), at 57 (“Most judges provide self-represented litigants with a detailed explanation of trial procedures, as time permits, and then allow narrative testimony”).

Judges may properly question witnesses, even if doing so may strengthen one party’s case, so long as the examination is not partisan in nature, biased, or a display of belief in one party’s case over the other’s. See Commonwealth v. Shepherd, 493 Mass. 512, 533 (2024), quoting Commonwealth v. Carter, 475 Mass. 512, 525 (2016) (“A judge may properly question a witness, even where to do so may reinforce the Commonwealth’s case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant’s guilt”); Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996) (“a trial judge may question witnesses to clarify the evidence, eradicate inconsistencies, avert possible perjury, and develop trustworthy testimony,” but “may not, however, weigh in, or appear to do so, on one side or the other; the judge must avoid the appearance of partisanship”); see also Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013) (judge’s questioning was excessive, but did not deprive mother of impartial justice); Guidelines 5.4 and 5.5. 

In some instances, a judge must examine a witness to ensure that there is sufficient evidence in the record from which a determination can be made. See Boston Hous. Auth. v. Y.A., 482 Mass. 240, 247 (2019), citing S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 & comment 1A (2016) (tenant’s “mention of domestic violence as a possible factor in her failure to make the required [rent] payments was a sufficient signal to the judge to inquire further to elicit additional facts in order to determine whether [tenant] was entitled to [Violence Against Women Act (VAWA)] protection”; “where a judge is given reason to believe that domestic violence is or might be relevant to a landlord’s basis for eviction, the judge must ensure that he or she has sufficient evidence to make a determination whether the tenant is entitled to VAWA protections”); see also Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 137-138 (2020) (judge erred in finding self-represented defendant in civil contempt for failure to pay child support, where judge did not inquire into whether defendant had present ability to pay child support).

Judges should be prepared to direct litigants to resources regarding subpoenaing witnesses and should instruct them about courtroom decorum. See Guidelines 1.6 and 3.1.

5.4​ Explaining the Applicable Law

At the outset of any hearing or trial, judges should take steps to help self-represented litigants understand the issues to be decided and the standard of proof they must meet. Using plain language, the judge should and sometimes must inform the litigants of the elements of their respective claims and defenses, the applicable burden of proof, and who must carry the burden on various issues.

The judge may find it helpful to convey this information in the same way that these concepts are explained to a jury in plain language jury instructions.

Commentary

In Turner v. Rogers, 564 U.S. 431, 435, 449 (2011), and Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 134-136 (2020), the United States Supreme Court and the Supreme Judicial Court respectively held that, to meet the requirements of due process, self-represented defendants must receive notice that their ability to pay is a critical issue in civil contempt proceedings where they face incarceration for failure to pay child support. Although most civil cases involving self-represented litigants do not entail the potential loss of liberty, they may result in the loss of a home or custody of a child, or in significant financial losses. Therefore, judges should routinely identify the critical issues to be decided. Judges should also explain the elements of the claims and defenses and the standard of proof that must be met. This practice will help to promote more efficient proceedings and more accurate and fair outcomes. See Ensuring the Right to Be Heard: Guidance for Trial Judges in Cases Involving Self-Represented Litigants, Institute for the Advancement of the American Legal System (November 2019), 7 (“Although clearly beyond its precise holding, Turner v. Rogers provides the basis for articulating a right to ‘informational justice’ for self-represented parties. In order to participate effectively in a legal matter, both parties need to have a clear understanding of: . . . the legal elements that must be established, [including] the standard of proof that must be met, . . . [w]hat sort and types of evidence can be presented to meet those requirements, [and] [t]he affirmative defenses available to the other side, if there are any. . . . [L]aying this informational groundwork at the beginning of a . . . hearing, or trial significantly improves the likelihood of a just outcome to the proceeding” and “eliminates many of the procedural concerns that arise in appellate case law”).

When explaining these concepts, the judge should use plain language. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016) (reasonable accommodations for self-represented litigants include making legal concepts understandable). Practical guidance on how to use plain language when dealing with complex legal concepts can be found in the Superior Court Guidelines for Drafting Model Jury Instructions. See Superior Court Guidelines for Drafting Model Jury Instructions, Section 1 (March 18, 2021). Additional guidance on plain language can be found in Guideline 2.2 and the related commentary.

5.5​ The Judge’s Role at Trial

Whether or not the parties are represented by counsel, the judge’s role at trial remains the same. The judge’s function is to direct, control and guide the proceedings in a neutral but engaged way. 

Commentary

The trial judge’s active role at trial is well-established by case law. “Whether a party is represented by counsel at a trial or represents himself, the judge’s role remains the same. The judge’s function at any trial is to be ‘the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.’” Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241 n.4 (1990), quoting Commonwealth v. Wilson, 381 Mass. 90, 118 (1980). In cases involving one or more self-represented litigants, this role includes “provid[ing] a self-represented party with a meaningful opportunity to present her case by guiding the proceedings in a neutral but engaged way.” CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283 (2017); see also Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 479-480 (2021).

5.6​ Evidence

While the rules of evidence apply to all litigants whether or not they are represented by counsel, judges must be mindful of their obligation to ensure that self-represented litigants are provided the opportunity to meaningfully present their claims and defenses. To that end, judges should exercise their broad discretion over evidentiary matters to:

• establish the procedure that will be followed for the introduction of self-represented litigants’ testimony;
• explain the process for offering evidence, including digital evidence;
• reduce procedural barriers to the entry of evidence;
• question witnesses to elicit or clarify information;
• explain foundational requirements and, if necessary, ask questions to determine whether those requirements are met;
• exclude or strike inadmissible evidence sua sponte;
• require counsel to explain objections in detail; and
• explain evidentiary rulings.​​

Commentary

The judge’s role as “the directing and controlling mind at the trial” includes direction of the process and procedure for the taking of evidence. Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241 n.4 (1990), quoting Commonwealth v. Wilson, 381 Mass. 90, 118 (1980). In all cases, judges “should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth, (2) avoid wasting time, and (3) protect witnesses from harassment or undue embarrassment.” Mass. G. Evid. § 611 (a) (2024).

In cases involving self-represented litigants, judges may be particularly proactive in evidentiary matters. As explained in the Code of Judicial Conduct, in order to fulfill the judge’s affirmative role in facilitating the ability of self-represented litigants to be fairly heard, the judge may, for example, provide information about evidentiary and foundational requirements, ask neutral questions to elicit or clarify information, and modify the manner or order of taking evidence or hearing argument. S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 (A) & comment 1A (2016). Judges may also act sua sponte to exclude evidence when the circumstances warrant it. See Commonwealth v. Lucien, 440 Mass. 658, 664 (2004) (holding that “judge has discretion to exclude irrelevant evidence, sua sponte, provided he does not exhibit bias in the process”); Commonwealth v. Haley, 363 Mass. 513, 517-519 (1973), S.C. 413 Mass. 770 (1992) (discussing judge’s power to exclude evidence sua sponte); Sapoznik, 28 Mass. App. Ct. at 241 n.4 (“At times during the course of any trial, even when a party is represented by counsel, it may become necessary for a judge to intervene although there has been no objection to the admissibility of certain evidence”).

In non-jury cases where both parties are self-represented, it can be useful for the judge to allow them to give narrative testimony. See commentary to Guideline 5.3. When that procedure is utilized, the judge will be assumed to have applied evidentiary principles correctly to the parties’ accounts. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002) (“A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence was to be considered in his role as factfinder”).

When self-represented litigants are unable to meet the procedural requirements for the presentation and preservation of evidence (such as providing multiple copies or having to pay fees to obtain court records), judges and court staff should make reasonable accommodations when appropriate. This is especially true with regard to digital evidence, where the consideration and preservation of the evidence may present special challenges. 

Because it has become commonplace for self-represented litigants to seek to rely upon digital evidence that exists on their cell phones, judges should familiarize themselves with the protocols for the presentation and preservation of digital evidence set forth in the Massachusetts Guide to Evidence, § 1119 (2024). Section 1119 (d) specifically provides that “[b]ecause self-represented litigants may be limited in their ability to present and object to digital evidence, a judge should make reasonable efforts, consistent with the law, to ensure that self-represented litigants are fully heard.” Accordingly, when a litigant is unable to produce digital evidence from a personal device in a format that is suitable to mark as an exhibit, § 1119 (c) provides that the judge may not refuse to consider it and should, instead, inspect it. Protocols for receiving and preserving digital evidence are set forth in the Note accompanying § 1119.

For additional cases indicating that a judge may take a proactive role in evidentiary matters, see Commonwealth v. Jackson, 419 Mass. 716, 722 (1995) (rejecting defendant’s contention that he was prejudiced by the judge’s interruptions where they were an attempt to assist defendant by explaining how to show that witness made a prior inconsistent statement, and also concluding that the judge correctly excluded or curtailed repetitive, argumentative and improperly phrased questions); Griffith v. Griffith, 24 Mass. App. Ct. 943, 945 (1987) (where self-represented litigant tended to stray into irrelevant considerations, judge was warranted in attempting to narrow the issues, ask questions, and direct the course of trial); Adoption of Seth, 29 Mass. App. Ct. 343, 350-351 (1990) (interests of efficiency often require that judges become directly involved in the case; judge did not abuse his discretion by suggesting psychiatrist be called because suggestion was based on impressions formed from participation in the case, not from prejudicial information gleaned from extrajudicial source).

In some proceedings (e.g., small claims), the applicable rules may permit even greater informality and participation by judges in eliciting facts. See McLaughlin v. Municipal Ct. of the Roxbury Dist., 308 Mass. 397, 403 (1941) (no error where judge took charge of small claims procedure, because statute governing those procedures was intended to provide a simple, prompt, and informal means of disposing of such claims and gave judge wide discretion to manage case). These include:

• Proceedings under G. L. c. 209A and G. L. c. 258E. See Mass. G. Evid., § 1106 (2024) (“In all civil proceedings under G. L. c. 209A (abuse prevention) and G. L. c. 258E (harassment prevention), the law of evidence should be applied flexibly by taking into consideration the personal and emotional nature of the issues involved, whether one or both of the parties are self-represented, and the need for fairness to all parties”); Frizado v. Frizado, 420 Mass. 592, 597-598 (1995) (in a civil proceeding under G. L. c. 209A, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on”); A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017) (applying same principle to proceedings under G. L. c. 258E). 
• Small claims. See Small Claims Standards (2002), § 6:10 (“The court should not require strict adherence to the rules of evidence in small claims trials”). See also id., § 1.00, commentary (“The small claims experience is different from other court proceedings because litigants, other than commercial litigants, generally appear without lawyers. . . . Trial Court personnel should recognize this fact and make every effort to assist small claims litigants as they try to navigate the unfamiliar territory of the clerk-magistrate’s office and the courtroom on their own”). 

5.7 When Opposing Party Is Represented by Counsel

Judges must give lawyers the opportunity to present their clients’ cases and advocate for their clients’ interests, while, at the same time, conducting the proceedings in a manner that enables self-represented parties to meaningfully present their claims and defenses. 

​Judges may wish to alert the parties at the beginning of the trial that, in order to manage the case efficiently and allow both sides to participate fully, it may be necessary for the judge to play an active role in guiding the proceedings.

Judges must maintain control over the courtroom and not permit either the self-represented litigant or the lawyer to interrupt each other or obstruct the other’s presentation. In cases where a self-represented litigant is testifying in narrative form, judges should pay particular attention to ensure that objections from counsel are handled in a manner that does not impede the testimony of the self-represented litigant while also ensuring a fair hearing for the represented party.

Commentary

“At times during the course of any trial, even when a party is represented by counsel, it may become necessary for a judge to intervene although there has been no objection to the admissibility of certain evidence.” Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 242, n.4 (1990). “’[T]he judge is not required to sit idly by while counsel for either side questions a witness in an effort to obtain an answer which could be the basis of either a motion for mistrial or a claim on appeal that prejudicial matters were brought to the attention of the jurors.’" Id., quoting Commonwealth v. Wilson, 381 Mass. 90, 118 (1980). This does not mean that a judge must become a lawyer for a self-represented litigant; however, the judge should recognize when opposing counsel is “engaging in improper tactics and taking advantage of the [self-represented litigant’s] unrepresented status” and “promptly intervene[ ], not to be of assistance to the [self-represented litigant], but to assert a judge’s traditional role of making sure that all the parties receive a fair trial.” Id.

Judges may require counsel to explain objections in detail, and judges should explain their evidentiary rulings. Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, American Judicature Society (2005), 39-40. To avoid the appearance of partiality, judges should explain that any questions the judge may ask are for the purpose of clarifying the testimony and should not be taken as an indication of the judge’s opinion of the case. See Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996) (judge must avoid appearance of partisanship in questioning witnesses). This is particularly important in cases involving one self-represented litigant and one represented party.

5.8 ​Jury Trials

Jury trials with self-represented litigants present special issues and require some additional actions by judges to make sure that the trial proceeds as fairly and smoothly as possible. The judge must remain in the role of the neutral presiding judge, while making sure that appropriate information is shared with the self-represented litigant. Judges should explain to the self-represented litigant that while judges can provide procedural information about what will be happening and some procedural guidelines, the judge cannot help self-represented litigants with the choices that they must make and the substance of their claims, defenses, and/or strategies. ​

At any time before a jury trial commences, judges may raise the issue of whether to have a jury or jury-waived trial. This issue is of particular importance when one or more parties are self-represented. The judge should encourage all of the parties to think about the advantages and disadvantages of proceeding with or without a jury. The judge should not coerce the decision, but may point out that it can be challenging to conduct a jury trial without an attorney and that there is the option of a trial without a jury, where the judge is the fact finder. 

Judges should instruct the jury that they are not to consider questioning by the judge to be an indication of the judge’s opinion as to how the jury should decide the case. Judges also should instruct the jury that, if for any reason they believe that the judge has expressed or hinted at any opinion about the facts of the case, they should disregard it. 

Judges should instruct the jury on the right to self-represent in the pre-charge and final jury instructions.

Commentary

 In jury cases, judges should instruct the jury that they are not to consider questions asked by the judge as any indication of the judge’s opinion as to how the jury should decide the case and that if the jury believes that the judge has expressed or hinted at any opinion about the facts of the case, they should disregard it. See Massachusetts Superior Court Civil Practice Jury Instructions §§ 1.2.1 (a), 1.2.2 (c) (Mass. Continuing Legal Educ. 3rd ed. 2014, & 2018 supp.); cf. Criminal Model Jury Instructions for Use in the District Court § 2.120 & supp. instruction 6 (Mass. Continuing Legal Educ. 3rd ed. 2009 & 2019 supp.).

5.9 ​Remote Trials and Hearings

These guidelines apply equally to trials and hearings conducted in person, hybrid, and remotely, i.e., by telephone, video, or another virtual platform.

When a self-represented litigant is participating in a trial or hearing remotely, judges must take steps to ensure that the remote trial or hearing comports with the requirements of due process and provides the self-represented litigant equal access and a meaningful opportunity to be heard. In particular, judges must ensure, preferably in advance of the remote trial or hearing, that the self-represented litigant:

• has access to the technology necessary to participate in the trial or hearing;
• understands the process to be used for the trial or hearing, including but not limited to the availability and use of breakout rooms and document sharing; and
• understands the procedures to be used when the technology does not work as intended.

 If the self-represented litigant does not have access to the preferred technology for a remote proceeding, the judge must determine what technology the self-represented litigant does have available that will enable the litigant to participate in the trial or hearing and take reasonable steps to assist the self-represented litigant with such technology. If the judge cannot ensure that the self-represented litigant has appropriate access and a meaningful opportunity to be heard, then the trial or hearing may not be conducted remotely.

Commentary

Massachusetts appellate courts have found no per se violations of due process because of trials or hearings conducted hybrid or remotely as a result of the COVID-19 pandemic. However, special consideration must be given to put safeguards in place to address the potential pitfalls of reliance on technology. This Guideline is derived in large part from guidance that the Supreme Judicial Court provided in Adoption of Patty, 489 Mass. 630 (2022), regarding such safeguards. In that case, the Supreme Judicial Court concluded that “the use of an Internet-based video conferencing platform to conduct a trial on the issue whether to terminate a party’s parental rights does not present a per se violation of due process provided that adequate safeguards are employed.” Id. at 631. The court, however, ruled that the mother’s due process rights were indeed violated because “[l]amentably, the first day of the two-day virtual bench trial conducted in this case was plagued by technological issues and inadequate safeguards, resulting in the self-represented mother’s inability to participate either by video or by telephone, interrupting the testimony of the witnesses presented by the Department of Children and Families (department) during its case-in-chief, causing the mother to miss all but a few minutes of the department’s evidence against her.” Id. The court determined that the conduct of the virtual bench trial violated the mother’s right to due process under the Fourteenth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights and vacated the decree. Id. at 631-632.

When conducting remote trials or hearings, judges “must ensure, preferably in advance of the hearing, that the participants understand the procedures to be used when the technology does not work as intended.” Id. at 641. Judges should constantly and consistently make sure that the technology used to conduct the remote trial or hearing is functioning properly. When technological difficulties inevitably arise, judges should suspend the hearing and resume the hearing after the technological difficulty is resolved. Id.

Judges should take steps in advance of remote trials or hearings to make sure that self-represented litigants have the necessary technology to connect to the remote proceeding. Id. at 645. If a self-represented litigant does not possess this technology, judges should explore whether it would be possible to assist in obtaining access to such technology. Id. Furthermore, judges should consider encouraging the parties to share documents and exhibits in advance because it may be difficult to share such exhibits during a remote hearing by telephone. See id. at 646. If a remote hearing or trial is conducted using video conferencing, the judge should ensure that there is a plan for presenting evidence and other documents at the hearing. 

Judges should take into consideration not just access to technology, but also a self-represented litigant’s technological capabilities in using the technology. In some instances, the differing needs and abilities of the parties and witnesses when it comes to technology may make a hybrid format or other creative solutions appropriate. See generally Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 789-90 (2022) (affording a meaningful opportunity to be heard in a remote hearing should include establishing a process for the exchange and use of documentary evidence).

To assist both the parties and the court in Superior Court hearings, judges should consider referring attorneys and self-represented litigants to the Superior Court Civil Committee, Tips for Attorneys and Self-Represented Litigants Appearing in Remote Civil Hearings Before the Superior Court, May 4, 2020.