Chair’s column—Dealing with pro se litigants: A view from the bench and bar

The ISBA Bench and Bar Section Council recently engaged in a spirited discussion on dealing with pro se litigants—an issue which persistently challenges lawyers and judges alike.

The Judges on the Council pointed out that in dealing with pro se litigants, they are guided by Canon 3 of the Code of Judicial Conduct, entitled, “A Judge Should Perform the Duties of Judicial Office Impartially and Diligently.” Specifically, Canon 3, Rule 63(A)(4),provides in pertinent part that: “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of self-represented litigants to be fairly heard.” However, judges must also comply with Canon 3, Rule 63(A)(9)’s mandate to “perform judicial duties without bias or prejudice” as well as Canon 2, Rule 62(A)’s requirement that a judge must conduct himself or herself “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Cognizant of these Canons, many judges on the Council shared that when self-represented litigants appear before them, the judges advise them that because they have chosen to be their own lawyer, the judge must hold them to the same standard as if they were an attorney. This means adhering to minimum pleading standards, including proper references to statutes and evidence, while also giving pro se litigants the chance to amend deficient pleadings. Likewise, judges take efforts to control interruptions while a self-represented litigant is speaking, while also being quick to silence interruptions by the pro se litigant when opposing counsel is speaking. Several of the judges on the Council expressed reluctance to use their contempt powers against a pro se litigant who does not show up to court or who acts inappropriately, perhaps to avoid complaints by pro se litigants about them to the Judicial Inquiry Board or to the Chief Judge.

While judges strive to be fair to both sides when dealing with pro se litigants, many of the lawyers on the Council felt that judges sometimes “give a pass” to pro se litigants and “bend over backwards” to help them. Lawyers reported situations wherein judges have allowed pro se litigants to file “anything they want” without striking it, and have repeatedly extended discovery deadlines as well as due dates for filing pleadings when a pro se litigant is tardy. Other lawyers on the Council felt frustrated by the lack of action taken by certain judges when pro se litigants are clearly abusing the system.

It became clear from our dialogue that there is certainly no easy answer as to how to best deal with pro se litigants, either from the perspective of a lawyer or a judge. But by discussing this matter, our Council members have shared with one another their experiences with pro se litigants, in an effort to improve how the participants in our justice system handle this challenge. 