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1. General Practices
1.1 Plain English. Judges should use plain English and minimize the use of complex legal terms when conducting court proceedings.
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 English.
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 self-represented litigants who are not fully conversant in English or who are hearing impaired.
Judges should not require any litigant who is not fully conversant in English or any hearing-impaired litigant to go forward at trial or any other significant event without a qualified interpreter. Judges should not assume that friends or family members accompanying the litigant are proficient enough in English or sign language to serve as translators or interpreters. When, during court proceedings, judges become aware of the need for an interpreter, judges should grant a continuance and order an interpreter for the next scheduled date.
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.
Judges should make self-represented litigants aware of the consequences of proceeding without an attorney. Judges should explain that self-represented litigants have no right to a relaxation of the standards that apply to litigants who are represented by counsel. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983); Burnham v. Clerk of Peabody Div. of Dist. Ct. Dept., 432 Mass. 1014 (2000). Judges may point out the complexities of the case and the advisability of obtaining or at least consulting with counsel.
Judges should explain that counsel for the opposing party does not represent the self-represented litigant and that opposing counsel may not advise the self-represented litigant, other than to suggest that the self-represented litigant secure independent counsel. See generally, Kaufman, Can We Talk: Communicating with Unrepresented Persons, http:www.mass.gov/obcbbo/ talk.htm (last visited Oct. 11, 2004) (discussing communication between counsel for a represented party and an unrepresented party in light of Mass.R.Prof.C. 4.3[a] & 4.3[b]).
Judges should encourage litigants who proceed without counsel to consult resources developed specifically for self-represented litigants and inform self-represented litigants that they have the responsibility to become familiar with and to comply with the rules of procedure. Litigants also should be made award that referral and pro bono services and alternative forms of dispute resolution are available. (See Guideline 2.3, infra.) If a self-represented litigant appears to be mentally disabled, judges should take additional steps to involve counsel, support services, and court-connected programs.
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.
Although self-represented litigants may not be treated more severely than other litigants, they are not entitled, because of their status, to be excused from relevant rules of procedural and substantive law. Pandey v. Roulston, 419 Mass.1010, 1011 (1995). See, e.g., Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) ("While pro se complaints may be excused for demonstrating a lack of expertise and knowledge, the court will not advance legal theories neglected to be presented"); Mmoe v. Commonwealth, 393 Mass. 617, 619-620 (1985) (judge erred in ruling on motion to dismiss pro se complaint by considering oral statements and written materials, in addition to the complaint; while judges have broad power to adopt procedures to promote justice, they do not have power to fashion procedures in disregard of court rules); Commonwealth v. Jackson, 419 Mass. 716, 721 (1995) (trial judge did not err in limiting introduction of cumulative evidence and excluding improper questions by pro se defendant); Frullo v. Landenberger, 61 Mass. App. Ct. 814, 820 (2004) (rejecting argument that motion judge should have granted pro se plaintiffs additional time in which to obtain other testimony if expert's affidavit was insufficient to withstand summary judgment, even though pro se plaintiffs did not request it).
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.
While, at first glance, this role seems more appropriately assigned to court staff, it is important that judges support this function. Many courts have informational handouts that can be made available in the courtroom, as well as in the Clerk's Office, Registry of Probate, and Probation Office. Judges should encourage the use of such materials. These handouts may include the phone numbers of lawyer referral services and may contain language that explains the advisability of retaining counsel. They also may include frequently asked questions and court specific information, such as information on alternative dispute resolution services, lawyer-for-a-day programs, housing specialists, and crisis centers.
It is important that judges support the provision of services,as well as information, to self-represented litigants. Judges should encourage and work with bar associations, law schools, legal services providers, and other organizations on programs that will provide in-person assistance to self-represented litigants in their courts. These may include, for example, lawyer-for-a-day programs and programs in which attorneys and those working under their supervision meet with litigants in the court and provide advice, assistance, and appropriate referrals. Judges also should endeavor to manage cases involving self-represented litigants in coordination with other services that may be used by or provided to litigants (e.g., mental health and substance abuse services).
(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.