Last year, the Conference of Chief Justices and COSCA passed a joint resolution urging consideration of alternative model langague for Rule 2.2 of the Model Code of Judicial Conduct, with an expanded focus on the self-represented. The resolution also urged consideration of the development of state comment langauge.
The Self-Represented Litigation Network has now released this linked Memo, which reviews how several states have responded to this need, and suggests various approaches.
This memorandum, prepared by the Self-Represented Litigation Network, is offered to the states in support of the approach recommended in the second part of the Resolution.
It gives examples of language adopted by the states, provides some alternatives for consideration, and suggests ways that states might consider what language to develop and adopt. Appendices provide the full text of the CCJ/COSCA Resolution, the texts of already adopted state alternative language, options for access-facilitative steps not listed in that language, and a listing of resources.
Below, from the Memo, is the list of access-oriented steps already listed in various state codes:
- Construing pleadings to facilitate consideration of the issues raised (CO
- Providing brief information about the proceeding and evidentiary and foundational requirements (LA, OH, DC, CO, IA) See also ME (explain the requirements of applicable rules and statutes so that a person appearing before the judge understands the process to be employed.)
- Attempting to make legal concepts understandable (CO)
- Asking neutral questions to elicit or clarify information (LA, DC)
- Modifying the traditional order of taking evidence (OH, DC, CO, IA)
- Refraining from using legal jargon (LA, OH, DC, IA)
- Explaining the basis for a ruling (LA, OH, DC, CO, IA
- Making referrals to any resources available to assist the litigant in the preparation of the case (LA, OH, DC, CO, IA) . See also ME (inform[ing] unrepresented persons of free legal aid and similar assistance that is available in the courthouse or otherwise.)
The Network hopes that the Memo will be helpful to the states. It also welcomes suggestions and reports of developments.
Please help by spreading the Memo around.
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Reblogged this on Texas Poverty Law Blog and commented:
I am still not convinced that creating a system of separate rules and practices for the self-represented is good policy. While it may be intended to help the poor by creating greater access to justice, I am not sure it will have a long term positive impact on the judidical system. Our local judges report many instances of people representing themselves not because they are poor, but just because they don’t want to pay a lawyer. There is difference in self-representation because you have to, and self-representation because you want to.
Nevertheless, here is some more food for thought on the topic from Richard Zorza.
Please note that there is nothing here that necessarily supports different rules for the self-represented. The problem in the past has bee that judges (often based on correct but loose language in appellate opinions) have come to believe not only that the rules must be applied regardless of self-represented status (which is surely true), but that that the rules must be applied identically regardless of the parties’ representation status. That is a very different proposition, and not correct. On the contrary, judges should take representation status into account in deciding how to apply the discretion that the rules and their role give them.
I personally find this distinction very helpful.
Extremely helpful, Richard. Really extremely helpful. Once again, this post helped me with a problem on some research I’m doing. Many thanks!
Professor of Law
Harvard Law School
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