Dreyer: Should judges help litigants who don’t have lawyers?

“ … a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.”

— Matter of G.P., 4 N.E.3d 1158 (Ind. 2014)

This morning, as I write this, a woman appeared in court by herself facing a mortgage company and its lawyer. She is single, raising two teenagers and is disabled. Her home was deeded to her years ago by a friend, and now she faces an unknown and unexpected mortgage debt. Earlier this month, a single mom appeared in court by herself facing a landlord company and its lawyer. She stopped paying rent months ago when the kitchen ceiling fell in, the housing authority found violations and nothing was done. As many judges and lawyers know, there are countless cases where a party is not represented by a lawyer, often where lack of legal advice and representation has the worst consequences: family cases involving children, housing cases involving eviction or loss of a home, criminal record expungement, loss of a job, and many matters concerning property damage, school expulsion, a parent’s estate, and even personal injury or taxes.

The problem is not new.

The most recent studies show 1.2 million Hoosiers live under the federal poverty guidelines and 80 percent of poverty households have a civil legal problem every year, but our civil legal aid system only helps about 4 percent of them. So at least 25 percent of all civil cases in Indiana involve people without lawyers, almost always poor, and almost always defendants. More importantly, access to advice apart from litigation, so integral to our civil system, is practically non-existent. In 2017, the Legal Services Corporation found 86 percent of civil legal problems of low-income Americans receive no or inadequate help.

So what, if anything, should judges do when faced with people in court day after day without lawyers? The practical problems are clear:

• A person without a lawyer does not know the rules of evidence — how does the judge get the evidence?

• A person without a lawyer does not object, cross-examine or present legal argument — how does a judge weigh the merits of the case?

• Parties with lawyers do object and cross-examine — but how does a judge decide a one-sided case?

• Parties with lawyers can present inadmissible evidence without objection — should a judge intervene?

• How does a judge make the right decision with an incomplete or one-sided record?

When well-known 7th Circuit Court of Appeals Judge Richard Posner abruptly retired in 2017, he claimed conflicts with his colleagues over treatment of unrepresented litigants, telling the New York Times, “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge.” Well, that certainly is not the case with federal and state judges in Indiana and elsewhere. For example, the Southern District of Indiana promulgated a heralded pro bono rule in 2016 that requires its most experienced practitioners to do pro bono work — and assures that its unrepresented litigants will have a lawyer. Last year, the National Conference of Chief Justices passed a resolution supporting 100 percent access to justice for needy citizens and encouraging all states to create a comprehensive plan to achieve that goal. Here in Indiana, our Supreme Court has been ahead of the game to coordinate and strengthen court efforts addressing civil legal aid in its Coalition for Court Access since 2016. Overall, the issue of unrepresented civil litigants is certainly “trending.”

Some often-discussed language among Indiana trial judges is found in Rule 2.2 of our Code for Judicial Conduct: “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”

What are “reasonable efforts” to help people without lawyers in court, or otherwise? Some believe the old common-law maxim about holding a pro se litigant to the same standard as a lawyer is an ignoble fiction and obsolete. Regardless, trial judges are faced with an ever-expanding number of unrepresented people and are doing justice accordingly. Rule 2.2 comments that judges may use “techniques that enhance the process of reaching a fair determination in the case.” On behalf of unrepresented litigants, it suggests construing pleadings liberally, explaining legal concepts in “everyday language,” modifying the rules of evidence and many other ideas.

As long as the judge maintains impartiality, he or she can do what needs to be done — using discretion and fairness to figure out the case, while maintaining the distinction between helping and advocating.

Most trial judges have worked this way for a long time. Letters to the court are deemed to be motions. All hearings are fully explained at the outset. Questions are taken at any time. Rules of evidence are relaxed. Cross-exam questions are filtered through the judge. Leniency is required to allow the court to get what it needs, and the rest can be separated out. Justice requires nothing less.•

• Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. Opinions expressed are those of the author.