I have recently been involved in a discussion about whether rules authorizing judges to be more engaged with litigants in self-represented cases might increase complaints about judges, specifically for their failure to be more engaged.

These rules (or raher usually Comments to the Codes of Judicial Conduct (memo at link not necessarily up to date) vary from state to state, but make clear that judges “may” engage in certain forms of engagement, such as asking questions and making referrals, without being considered non-neutral.

Some people are fearful that such language will increase complaints because litigants will feel that judges should have done the things and failed to do so.

Probably the most important point to make in response to these concerns is that while many states have now passed some form of this language, we have heard of no such increases reported in any states.

Some have also made the excellent point that since these rules clarify that these practices, which most litigants find helpful, are permitted, it is likely that they may reduce, rather than increase the number of complaints.

Moreover, given that the language tends to the use the word “may” or equivalent, they tend to create discretion, rather than reduce it, thus making the chance of such complaints.

There is one caveat, which may be significant in some cases.  Since the rules/comment changes make clear that judges do have discretion to take such engaged steps, any judge who affirmatively refuses to consider the possibility that such steps would be appropriate in a case is engaging in an abuse of discretion.  “No, I am not allowed to do that.”  “The rules stop me doing that.” That is where the appellate cases are likely to come from.  Of course, a judge who explains why he does not think such a use of discretion in the circumstances of the case is appropriate will be well protected.  As always, transparency is best.