Steven K. Smith, et al., Tort Cases in Large Counties--Special Report (Washington, DC:Bureau of Justice Statistics, 1995).

Institute for Survey Research, Report on the Legal Needs of the Low- and Moderate-Income Public (Chicago: Am. Bar Assoc.,1994).

Report of the Commission on the Delivery of Legal Services of the State Bar of Wisconsin (Madison, WI: State Bar of Wisconsin, 1996).

David Long, et al., The Pro Per Crisis in Family Law (Memorandum to the State Bar of California Board Committee on Courts and Legislation. August 15, 1995).

Standing Committee on the Delivery of Legal Services, Responding to the Needs of the Self-Represented Divorce Litigant (Chicago: Am. Bar Assoc., 1994).

Steven R. Cox, et al., A Report on Self-Help Law: Its Many Perspectives (Chicago: Am. Bar Assoc. Special Comm. On the Delivery of Legal Services, undated)

B. Unbundled legal services and the ghostwriting issue

Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L. Q. 421 (1994).

Ghostwriting (1) "causes the court to apply the wrong tests in its decisional process and can very well produce unjust results"; (2) it is "deliberate evasion of the responsibilities imposed on counsel by Rule 11, F.R.Civ.P."; and (3) a "undisclosed counsel who renders extensive assistance to a pro se litigant is involved in the litigants' misrepresentations contrary to the Model Code of Professional Responsibility." Johnson v. Bd. of Comm'rs for the County of Fremont, 868 F.Supp. 1226 (D. Colo. 1994), aff'd on other grounds 85 F.3d 489 (10th Cir. 1996); Somerset Pharmaceuticals v. Kimball, 168 F.R.D. 69 (M.D. Fla. 1996) (ghostwriting an act that "taint[s] the legal process and create[s] disparity between the parties").

C. Litigators' scrutiny of judicial assistance to pro se litigants.

Robert M. Daniszewski, Coping with the Pro Se Litigant, N.H. Bar J. (March, 1995, p. 46).

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Standard 1 : "Trial courts should be open and accessible . . . Accessibility is required not only for those who are guided by an attorney but also for all litigants . . . (Commentary); Standard 1.3: "All who appear before the court are given the opportunity to participate effectively without undue hardship or inconvenience"; Standard 1.4: Judges and other trial court personnel are courteous and responsive to the public and accord respect to all with whom they come into contact." This is particularly important "in the understanding shown and assistance offered by court personnel to . . . those unfamiliar with the trial court and its procedures" (Commentary); Standard 5.1: "The trial court and the justice it delivers are perceived by the public as accessible" and "A trial court not only should be accessible to those who need its services, but it also should be so perceived by those who may need its services in the future" (Commentary).

B. The specter of UPL and limits on assistance to the public

"Clerks of the court who are involved in assisting the public with forms and pleadings must be careful not to advise the public as to its legal rights and responsibilities. Careful attention must be given to avoid the unauthorized practice of law. However, this does not mean that clerks of the court may not assist the public in the routine filling out of forms. . . [A] judge should promote public confidence in the integrity and impartiality of the judiciary. . . If clerks of the court were prohibited from lending assistance to the public, the result would be a judiciary that is only accessible to those individuals able to afford counsel. Clearly, such an effort would not be desirable nor constitutional. Furthermore, assistance in filling out forms is desirable by allowing for an efficient flow of an individual's case through the system." Opinions of the Arizona Judical Ethics Advisory Committee, No. 88-5 (May 11, 1988)

"Providing sample pleadings to individuals upon request also appears to violate the prohibition against practicing law [by clerks of the court]. Establishing a master file of sample pleadings and papers copied from ones filed in the clerk's office requires the exercise of judgment as to which pleadings and papers are good and sufficient. Making copies of such pleadings and papers available, on request, to pro se individuals requires the exercise of further judgment in order to determine which sample best suits the legal needs of the individual. . . Providing the sample is tantamount to helping in the preparation of papers that are to be filed in court." Opinions of the Maryland Attorney General (October 22, 1991)

"[A] clerk [who] . . . identifies and describes options and provides the appropriate forms and assistance in completing them" is not engaged in the practice of law. "[P]roviding assistance with filling out forms and offering procedural advice clearly do not run afoul of the prohibition on the practice of law." Opinions of the Massachusetts Advisory Committee on Ethical Opinions for Clerks of the Courts, No. 95-6 (November 8, 1995).

"Furnishing forms to a person would not constitute the practice of law. However, filling out or helping the person fill out the forms or assisting in the execution of the forms would constitute the practice of law." Opinions of the Legal Ethics Committee of the Indiana State Bar Assoc., No. 4 (1992).

"[T]he practice of law includes the drafting or selection of documents and the giving of advice in regard thereto any time an informed or trained discretion must be exercised in the selection or drafting of a document to meet the needs of the persons being served. The knowledge of the customer's needs obviously cannot be had by one who has no knowledge of the relevant law." Ore. State Bar v. Security Escrows, Inc., 377 P.2d 334, 338 (1962).

C. The Greacen Guidelines for clerks’ assistance

John M. Graecen, "No Legal Advice From Court Personnel." What Does That Mean?, Judges’ Journal (Winter, 1995, p. 10)

D. Development of pro se assistance programs

Eleanor Landstreet, et al., Developing Effective Procedures for Pro Se Modification of Child Support Awards (Washington, DC: U.S. Dep’t of Health and Human Services, 1991).

Michigan State Court Administrative Office, Pro Se Forms and Instruction Packets: Providing Improved Access to Michigan Courts: Final Report (Lansing, MI: Michigan Supreme Court, 1994).

Alexandra B. Stremler, et al., Florida Pro Se Clinics: Representation for the Poor (Gainseville, FL: University of Florida College of Law, 1994).

James G. Apple, et al., Manual for Cooperation Between State and Federal Courts (Washington, DC: Federal Judicial Center, 1997).

Resource Guide for Managing Prisoner Civil Rights Litigation--with Special Emphasis on the Prisoner Litigation Reform Act (Washington, DC: Federal Judicial Center, 1996).

How to Process an Appeal in the New Mexico Court of Appeals (Albuquerque, NM: State Bar of New Mexico, 1995).

First Circuit’s [Florida] Pro Se Litigant System Delivers Results, Full Court Press (July-August, 1994, p.2).

E. Nonlawyer practice

Commission on Nonlawyer Practice, Nonlawyer Activity in Law-Related Situations: A Report with Recommendations (Chicago: Am. Bar Assoc., 1995).

Jane C. Murphy, Access to Legal Remedies: The Crisis in Family Law, 8 BYU J. Pub. L. 123 (1993).

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Prisoners, "and indeed every person has a right of access to the courts which is protected by the United State Constitution." White v. Lewis, 804 P.2d 805, 815 (AZ 1991), citing Ex Parte Hull, 61 S.Ct. 640 (1941); Johnson v. Avery, 89 S.Ct. 747 (1969), and Wolff v. McDonnell, 94 S.Ct. 2963 (1974).

"Due process" requires a meaningful opportunity to be heard, granted at a meaningful time, and in a meaningful manner: Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Little v. Streator, 452 U.S. 1 (1981); Armstrong v. Manzo, 380 U.S. 545 (1965).

Howard M. Rubin, The Civil Pro Se Litigant v. The Legal System, 20 Loy. U. Chi. L. J. 999 (1989).

Julie M. Bradlow, Procedural Due Process Rights of Pro Se Litigants, 55 U. Chi. L. Rev. 659 (1988).

Helen B. Kim, Legal Education for the Pro Se Litigant: A Step Towards a Meaningful Right to Be Heard, 96 Yale L. J. 1641 (1987).

B. The traditional role of the judge

Judges also have a duty under Canon 3 of the Code to "be patient, dignified and courteous to litigants . . ." (Sec. B4) However, "The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate." (Commentary, Sec. B4) Further, judges "shall accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law." (Sec. B7) "Law" includes court rules, statutes, constitutional provisions and decisional law. (Code, Terminology) In addition, judges also "must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay." (Commentary, Sec. 8) Finally, judges have a duty to assure that court officials "refrain from manifesting bias or prejudice in the performance of their official duties." (Canon 3, Sec. C2) The latter provision suggests a duty upon judges generally, and especially administrative judges, to assure their court staff provide assistance in an impartial manner.

C. Judges’ attitudes toward pro se litigants

Some judges’ comments reflect a distinct anti-pro se litigant sentiment. They are described as "an increasing problem," they are "very time consuming," and they "get the ear of the media who then report inaccurate information that makes the judiciary look bad." These judges emphatically state that they are "opposed to socialized legal services," that "no one likes pro se litigants," and that, because there is the possibility of their "clogging our judicial system," there is a "need to limit their access if that does happen." Some anti-pro se judges suggest that pro se litigation not be encouraged, that "rules are not useful for pro se litigants," and that there is a need for a rule "outlawing pro se representation." (AJS/JMI Pro Se Project Survey, 1996)

D. The acrobatic judge

Several judicial ethics requirements are relevant to judges’ treatment of pro se litigants. Canon 2 of the ABA Model Code of Judicial Conduct (1990) requires that judges "avoid impropriety and the appearance of impropriety" in all judicial activities; this includes acting "in a manner that promotes public confidence in the integrity and impartiality of the judiciary." ( Sec. A). "The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." (Commentary, Sec. A)

E. Managing the pro se litigant

1. Case Law

Pro se litigant’s complaint must be held to "less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 92 S.Ct. 594 595 (1972). "Pleadings" is defined by Black’s Law Dictionary (5th ed. 1979) as: "The formal allegations by the parties of their respective claims and defenses." It is not clear whether "pleadings" includes letters, motions, or other written submissions to the court. Moreover, it is not clear whether the Haines rule applies to pleadings in state courts, or whether the ruling was merely an interpretation of the federal pleadings rule.

"A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course." McKaskle v. Wiggins, 465 U.S. 168, 183-84 (1984).

"The trial court is under no obligation to become an ‘advocate’ for or to assist and guide the pro se layman through the trial thicket." U.S. v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977). The judge who "unduly" aids the pro se litigant in his defense is, it is argued, wrongfully acting as an advocate for one side of the dispute.

Courts must accord "special attention" to pro se litigants faced with summary judgment motions. Ham v. Smith, 653 F.2d 628 (D.C.Cir. 1981). At the very least, a litigant is entitled to be warned that when he is confronted by a summary judgment motion, he must obtain counter-affidavits or other evidentiary material to avoid the entry of judgment against him. Timms v. Frank, 953 F.2d 281 (7th Cir. 1992); Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975); Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir. 1968). Some circuits have limited this rule to prisoners. Brock v. Hendershott, 840 F.2d 339 (6th Cir. 1988); Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986) ("[a] litigant who chooses himself as legal representative should be treated no differently" than one with counsel, and requiring notice to non-prisoners of Rule 56 requirements "implicates the court’s impartiality and discriminates against opposing parties who do have counsel.") However, Timms, 953 F.2d at 285, held that "the attempted distinction between prisoners and other pro se litigants with regard to this issue is unconvincing. . . [T]he idea that non-prisoners do not deserve notice because they have chosen to proceed pro se ignores the fact that most litigants who sue without a lawyer do so because they cannot afford one."

In regards to compliance with evidentiary rules, per se, one supreme court has commended a trial judge for his conduct in "relax[ing] the rules of evidence and mak[ing] a special effort to facilitate the [pro se] plaintiff’s presentation of his case." Austin v. Ellis, 119 N.H. 741, 743 (1979). The court in Austin followed a recommendation of an ABA committee in declining to set any firm parameters regarding how far a judge should go to assist a pro se litigant:

The court is confronted by an especially difficult task when one of the litigants chooses to represent himself. The court’s essential function to serve as an impartial referee comes into direct conflict with the concomitant necessity that the pro se litigant’s case be fully and completely presented.

The proper scope of the court’s responsibility [to a pro se litigant] is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by a specific formula [citing ABA Standards, Comm. On Standards of Judicial Administration, Sec. 2.23, at 45-47 (1976)]

2. Judicial Practices

Many judges said they briefly explain trial procedures to self-represented litigants before a hearing, including the manner of presentation of evidence, the hearsay rule, marking exhibits, and other procedural matters. Some will do this a week or more before trial. They also relax the rules of evidence "so long as it doesn’t get too farfetched." Some indicated that the evidence will comes in unless there are objections to it. In some cases, the judges themselves will raise such objections. The judges indicated that they often ask questions of witnesses themselves. One judge swears in both pro se parties, and asks questions of each "sometimes at the same time." Judges also "guide" the pro se at time by "nudging them along by asking them if they want X to be marked and they want X to be admitted." One judge describes his procedure as: "If the pro se litigant testifies, I have him/her make a statement and dispense with questions and answers." Still others take a firmer approach: "I expect the rules of evidence will be enforced. I point out to the litigant that the rules must be the same for each side. Retain counsel or suffer the consequences." (AJS/JMI Pro Se Project Survey, 1996)

FJC Directions: Special Issue on Pro Se Litigation--New Legislation, New Challenges (Wasington, DC: Federal Judicial Center, June, 1996)

Report of the Minnesota Conference of Chief Judges Comm. On the Treatment of Litigants and Pro Se Litigation (1996)

Report on Pro Se Litigation (Chicago: Pro Se Advisory Committee of the First Municipal District, Circuit Court of Cook County, 1995).

F. Segregating pro se litigants

Judge Robert Gottsfield, Let’s Talk About It--A Superior Court Pro Se Division, Ariz. Atty. (May, 1992, p. 49).

G. Managing the untraditional pro se litigant

A fair number of judges have had experience with "constitutionalists." These litigants, often with a militia-like political agenda that includes non-recognition of the court’s jurisdiction over them, often delay the proceedings with non-meritorious claims and contentions or "irrelevant and incomprehensible positions." Worse still, some of these litigants have been known to file suit or liens against judges. The judges’ suggestions for handling these types of litigants include: (1) have the sheriff present, "who is ready to place the obstructionist in jail," (2) and "clear explanations as to when that power will be utilized," (3) use of "extreme patience," (4) "give them enough time to ‘vent’ and then politely, but firmly, shut them off," (5) "keep them focused on the issues in the case and away from political issues," (6) rule promptly on the "barrage of motions" brought, (7) provide extra time for their trials, (8) address each issue raised, no matter how farfetched," (9) "Get the guns before they get into the courtroom," and (10) always take the matters under advisement, and them promptly rule by written order. (AJS/JMI Pro Se Project Survey, 1996)

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