Access, Flexibility, and Patience

Judges are not required to be bumps on a log in their own courtrooms, just spectators as proceedings bog down and hapless self-represented litigants flounder in confusion or attorneys use court procedures to trip up the attorneyless. Judges can use the authority they have and employ in every case, if not to level the playing field for the unrepresented (probably impossible), to at least correct the tilt a little and smooth out some of the hazards, reducing the potential for miscarriages of justice. Over 35 jurisdictions have adopted a provision in their code of judicial conduct to encourage judicial flexibility in cases involving self-represented litigants, acknowledging that exercise of that discretion is consistent with the requirement of judicial impartiality.1 Many have adopted comment 4 to Rule 2.2 of the 2007 American Bar Association Model Code of Judicial Conduct: “It is not a violation of this Rule”—which requires a judge to be fair and impartial—“for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”