Opinion: Court Rules Should Not Favor Self-Represented Litigants
• Following "the rules of evidence that go to reliability" while using "discretion and overrul[ing] objections on technical matters, such as establishing a foundation for introducing documents and exhibits, and the form of questions or testimony."
• "Explaining rulings."
I object to the Editorial Board's proposals for four reasons. First, the board is calling for the adoption of a double standard for SRL cases, with one standard used for SRLs and a different one used for parties represented by attorneys. When trial judges are lenient and solicitous with one class of litigants, their conduct, demeanor, and tone can be perceived as limiting their own fairness and impartiality on the bench.
Indeed, why is it fair to adopt judicial leniency in only SRL cases? Should there be judicial leniency when attorneys in a case have widely divergent levels of experience or legal abilities? What about judicial leniency toward parties with shallower pockets or smaller litigation budgets? We should not revise, expand, or seek to explain Comment 4 in a manner that undermines Rule 2.2 itself.
Second, the board's proposals are more ambiguous than our current version of Comment 4. If adopted, the board's recommendations would lead to less predictable, less uniform practices on the bench. Exactly what does it mean to follow rules of evidence "that go to reliability," but overrule objections on "technical matters" or improper evidentiary foundations? When we invite judges to explain burdens of proof or the universe of admissible evidence to SRLs, we are walking down an unfair and unpredictable path.
Third, SRL cases are the last place we should adopt more detailed guidance or standards for judges. In the real world, some SRLs are unpredictable, vindictive, and downright threatening towards members of our judiciary. Every judicial grievance I have heard of in recent years has been filed by an SRL. If Comment 4 is expanded as the Board wants, SRLs would only be given greater traction to pursue judicial grievances and appeals, arguing trial judges somehow failed to give them "reasonable
accommodations" to present their cases fairly. Why add gas to the SRL fires already burning in our courts?
Finally, some trial judges engage in a form of SRL leniency that increases when the opposing party is represented by an attorney. When that happens, judicial SRL leniency corrodes and undermines an attorney's relationship with her client. Clients begin to question their decision to hire and pay for an attorney. They begin to wonder whether they would have been better off without an attorney. They question the judge's impartiality and may even think their position is disfavored because they are represented by an attorney.
The Editorial Board is encouraging a dangerous trend — a trend that only increases the ranks of SRLs in our courtrooms, further denigrates and marginalizes attorneys, and makes it more difficult to practice law than it already is.•
John D. Tower