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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.
Judges, as role models in the courtroom, should provide a positive environment for those who represent themselves. See, e.g., Commonwealth v. Jackson, 419 Mass. 716, 721 (1995) (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). A positive environment may be achieved, in part, by following the principles outlined in "Within Our Reach: Gender, Racial and Ethnic Equality in the Courts"2 and by providing self-represented litigants with an explanation of relevant procedures.
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.
In Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236 (1990), the role of the judge in a trial involving a self-represented litigant was discussed at some length. That case recognized that,"[w]hether 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. Wilson, 381 Mass. 90, 118 (1980), quoting from Commonwealth v. Lewis, 346 Mass. 373, 379 (1963), cert. denied, 376 U.S. 933 (1964), and Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502 (1908)." Commonwealth v. Sapoznik, supra at 241-242 n.4 (1990).
"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." Id. at 242 n.4. "'[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.'" Ibid., quoting from Commonwealth v. Wilson, supra. "That observation is equally true where the defendant represents himself." Commonwealth v. Sapoznik, supra at 242 n.4.
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." Ibid. citing to Grubbs v. State, 255 Ind. 411, 413-416 (1970). "A pro se [party] is not entitled to any greater protection than a [party] represented by counsel B but he is not entitled to any less protection either." Commonwealth v. Sapoznik, supra at 242 n.4.
For additional cases indicating that a judge may take a proactive role in evidentiary matters, see Commonwealth v. Haley, 363 Mass. 513, 518-519 (1973) (discussing judge's ability to exclude evidence sua sponte), S.C. 413 Mass. 770 (1992); Commonwealth v. Jackson, 419 Mass. 716, 722 (1995) (rejecting defendant's contention that he was prejudiced by trial 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 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 considerations not legally relevant, judge warranted in attempting to narrow the issues, asking questions, and directing 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).
Judges may require counsel to explain objections in detail, and judges should explain their evidentiary rulings. 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. of City of Boston, 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).
Judges have more flexibility in proceeding informally when all the parties to a case are self-represented. In such cases, judges may have the parties stipulate that each can tell the relevant facts uninterrupted for a set time, and the court will ask questions. Cases which are non-adversarial, e.g., name changes, also allow for increased flexibility.
Judges have wide discretion to impose time limits on the length of direct and cross-examination of witnesses. Those limits, however, must be reasonable; they must not prevent a party from presenting the party's entire case to the fact finder. Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338 (1993).
Judges may properly question witnesses, even where to do so may strengthen one party's case, so long as the examination is not partisan in nature, biased, or displays a belief in one party's case. Commonwealth v. Dias, 373 Mass. 412, 416 (1977). To avoid the appearance of partiality, judges should explain that the questions are being asked to clarify testimony and that they should not be taken as any indication of the judge's opinion of the case. This is particularly important in cases involving one self-represented litigant and one represented party.
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 Model Jury Instructions for Use in the District Court § 2.02 (Mass. Continuing Legal Educ. 1995 & 1997 supp.); Massachusetts Superior Court Civil Jury Instructions § 1.3 (Mass. Continuing Legal Educ. 1997 & 2003 supp.).
Judges should use the rule of reason as to the extent of witness-questioning. As illustrated by criminal cases on this topic, there is no quantitative test for determining whether a judge has gone beyond the bounds that the law imposes. See, e.g., Commonwealth v. Sneed, 376 Mass. 867, 869 (1978) (new trial ordered because judge appeared partial when he admonished witness as to perjury and severely eroded her credibility by making clear to jury he did not believe witness); Commonwealthv. Ragonesi, 22 Mass. App. Ct. 320, 323-324 (1986) ( judge's questioning was excessive and leading, where it consumed twenty-three pages of transcript, judge asked whether counsel advised witness about contempt and perjury, twice asked whether the witness had lied to police, and questioned witness on minute details); Commonwealth v. Festa, 369 Mass. 419, 422-423 (1976) (where judge asked witness if she was aware she had sworn to tell the truth and that failure to do so would subject her to criminal penalties, then asked witness questions concerning her testimony, judge's questions were not clearly biased or coercive, but were directed toward protecting witness from possible perjury and developing the most trustworthy testimony; even if judge was overzealous, judge's behavior, considered in context of entire trial and charge to jury, did not deprive defendant of fair trial); Commonwealth v. Campbell, 371 Mass. 40, 44-45 (1976) (no error where judge asked one witness eighty-five questions and another witness twenty-five questions, when witnesses were asked a total of 1,810 and 926 questions, respectively, and judge instructed jury to give his questions no special weight); Commonwealth v. Grogan, 11 Mass. App. Ct. 684, 686 (1981) (no likelihood of miscarriage of justice where judge actively questioned defense witness but gave jury limiting instruction not to draw any inferences from fact he asked questions and not to give answers elicited any special weight); Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 806-08 (1996) (judge exceeded limits on judicial questioning; his questioning was too partisan, foundation required for evidence had not been established, and judge did not neutralize damage done by questions with limiting instruction to jury).
3.3 Right of self-representation. In jury trials, judges should ask self-represented litigants whether they want a right to self-representation instruction.
For sample instructions see Model Jury Instructions for Use in the District Court § 2.024 (Mass. Continuing Legal Educ. 1995 & 1997 supp.) ("The defendant has decided to represent himself (herself) in this trial, and not to use a lawyer. He (she) has a perfect right to do that. His (her) decision has no bearing on whether he (she) is guilty or not guilty, and it should have no effect on your consideration of the case.") and Massachusetts Superior Court Civil Jury Instructions § 13.12 (Mass. Continuing Legal Educ. 1997 & 2003 supp.) ("The [plaintiff/defendant] has decided to represent [himself/herself] in this trial, and not to use a lawyer. [He/she] has a perfect right to do that. [His/her] decision has no bearing on the merits of this case, and it should have no effect on your consideration of the case.").
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.
When assessing whether a waiver of substantive rights is "knowing and voluntary," a judge may consider "knowing and voluntary" as that phrase is used in the context of informed consent, i.e., the agreement by a person to a proposed course of conduct after receiving adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct. See ABA Model Rules of Professional Conduct 1.0(e) (2003) ('Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct).
Self-represented parties should be informed that once the agreement is approved it becomes an order of the court; therefore, they should raise any questions that they have about the agreement before it is approved.
If a self-represented litigant has limited ability to understand or speak English, the agreement should be translated verbatim into that individual's primary language by a qualified court interpreter before it is approved. There should be an endorsement on the agreement that it was translated for the non-English speaking party by a qualified court interpreter. The judge may wish to make an affirmative finding that the agreement was reviewed by the court and translated into the self-represented litigant's primary language by a qualified court interpreter. If a qualified court interpreter cannot be obtained, the matter should be continued until one can be present.
Judges are statutorily required or permitted to independently determine that certain types of settlement agreements are fair and reasonable. See, e.g., G. L. c. 231, § 140C ½ (court may review and approve settlement agreement involving a minor or an incompetent); G. L. c. 152, § 15 (judicial approval of tort settlements where workers' compensation insurer has lien); Mass.R.Civ.P. 23(c) (court approval of class action settlements); Knox v. Remick, 371 Mass. 433, 436-437 (1976) (separation agreement must be fair and reasonable and not the product of fraud or coercion). When such a duty is not imposed by law, there is no consensus on the extent to which judges are obligated to ensure that settlement agreements are substantively fair and reasonable. See Goldschmidt & Milord, Judicial Settlement Ethics: Judges' Guide 53 (American Judicature Society 1996).
(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.
(2) This publication, produced by the Trial Court's Gender Equality Advisory Board and Racial and Ethnic Access and Fairness Advisory Board, is available at Within Our Reach: Gender, Racial and Ethnic Equality in the Courts (last visited Nov. 18, 2004).