Judges and SRLs: Moving the Conversation out of the Courtroom, and into a Meeting Place for Reasonable People

Judges and SRLs: Moving the Conversation out of the Courtroom, and into a Meeting Place for Reasonable People

This month at the NSRLP we are focusing on Action Step #7, Judges and SRLs. This blog aims to kick off this conversation and challenges us to find a place where the experiences of judges with SRLs, and the experiences of SRLs with judges, can be shared, heard and understood.

How SRLs relate to judges

The National SRL Study Final Report (devoted a whole chapter to the data we collected from SRLs about their experiences with judges. It was hard to listen to many of those stories – whatever the rights and wrongs, they were told with a great deal of emotion and often anguish.

It was clear that the experience of standing before a judge is for many SRLs the most upsetting, nerve-wracking and intimidating part of the whole self-representation nightmare. There were very consistent themes to these stories – viz., “I did not feel that I was taken seriously by the judge”, “I was so scared I did not sleep the night before my hearing”, and “I felt ashamed to be standing in court without a lawyer but I could not afford one (but the judge did not seem to accept that).”

Drafting the chapter in the Final Report on judicial interaction with SRLs was one of the most difficult and downright upsetting tasks of my 30 years of professional writing. The humiliation, terror, and shame of the SRLs jumps off the pages. Some SRLs believed that the judges who exposed them to this experience – and there were exceptions, of course, whom they felt genuinely listened to them and helped them – were uncaring, self-interested and arrogant.

How judges relate to SRLs

As I listened to these stories, another part of my brain recalled the scores of deep, complex and sometimes troubled conversations I have had with members of the Bench over the past 20 years. As a judicial educator for two decades I have witnessed first-hand the extraordinary extent of change in the role of judges.

Most of our sitting judges applied for an appointment to the Bench expecting to preside over trials, to adjudicate. Many judges now do little or no adjudication and a great deal of “other” work. A range of new “non-judging” functions have transformed the traditional role of the judge –including facilitating settlement discussions among the parties, arm-twisting counsel to cut a deal, or pressing counsel to move a matter along. And now there is the new reality of dealing directly with so many litigants appearing without counsel.

One judge recently described to me the transformation in his role as “from judging to social work”. As yet there is inadequate training and support for judges playing such a role in courtrooms full of SRLs. Moreover many judges are (surely understandly) emotionally unprepared for this experience.

Instead of being “elevated” to the Bench, as they had expected, judges are now expected to get down and dirty with disputants, to manage high emotions, and to communicate complex matters effectively with people who are often distressed and desperate.

Coming to the conversation from different experiences

Over the last two years, my growing understanding of the (often oppositional and conflictual) experiences of SRLs and judges has sometimes meant that lines of imagined internal dialogue between the two drift through my mind…

SRL:     This judge hasn’t even looked up at me since I stood up. They are not listening to a word I am saying. They are just shuffling their papers. I bet they just think I am an idiot and nothing I say is going to make any difference anyway.

Judge:   I cannot find the argument s/he is making in the pleadings. I should probably point this out before counsel does. I am not sure I want to cut him/her off but if this continues there is going to be an objection and its going to get ugly.

SRL:     Why is the lawyer on the other side looking at me like that? It feels so tense in here. I had a really hard time sleeping last night. Actually, I think that lawyer is laughing at me. I wish I could have had the judge I had last time who really seemed to be paying attention to me. This new one seems to have no idea about my case.

Judge: There is so much paperwork here. And I see the judge who heard the last motion made a notation here but I can’t read it…oh I see they are worried about the stress that the SRL is under. Well what am I supposed to do about that? I am a judge, not a social worker. And here comes that objection….

Creating space for a dialogue between judges and SRLs

This is going to be a hard conversation, for both judges and SRLs. But a dialogue is what is badly needed here.

I absolutely know that there are judges out there who are not uncaring, self-interested and arrogant. I have had long conversations with many of them about how to adjust to a new reality, what to do when their job description just got torn up and thrown out of the window.

Of course there are some who pine for the old days of judging from on high, and their temper has not been improved by the endless stream of SRLs through their courtrooms. As the National Study exposed, and as we continue to hear regularly from SRLs, there are examples of bad – rude, impatient, undignified – behavior by judges. Nothing in this blog is intended to condone judges who yell at SRLs to get a lawyer after they have been told that they have no funds for one – who disparage SRLs in order to entertain themselves and counsel – or who listen only to what counsel has to say and deny every request – for information, for disclosure, for time to speak, for time to prepare – made by a SRL simply because they are a SRL, and the judge has lost patience with them.

Neither – let me be very clear – does this blog condone behavior that is intentionally disruptive and disrespectful on the part of SRLs. However I also know from the work we have done over the past two years that at least some of the behavior that is interpreted as “intentionally disruptive” by knowledgeable “insiders” is the result of confusion and distress, not malice.

 Reasonable expectations

Judging is a public office, and the public is entitled to expect that the judiciary play a role that enhances our shared aspirations to expeditious, effective and transparent justice.

In the United States, a similar sentiment is inspiring moves – led by former Supreme Court judge Sandra Day O’Connor – to make the appointment of judges more transparent, to ensure that the public viewpoint is properly represented in the appointment of judges, that judges come from a variety of personal and professional backgrounds that equip them for the task ahead and that “…judicial temperament that demonstrates appropriate respect for everyone in the courtroom…” (http://iaals.du.edu/initiatives/quality-judges-initiative/recommended-models/the-oconnor-judicial-selection-plan-how-it-works-why-it-matters).

In undertaking this role, it is reasonable for judges to expect in return proper training, clarity about the role they will play, and support from the Bar. There is also a need for the general recognition that in a time of great change, everyone and every part of the system must be afforded time and space to make necessary adjustments, rather than an immediate default to judgment and blaming.

Meeting in a reasonable place

I know that even those judges who genuinely are caring and want to offer support to SRLs are often completely flummoxed about how to do so. What if they assist a SRL and counsel on the other side complains? What if they allow a SRL to speak now when they are really supposed to wait their turn? What if they see a SRL pursuing a line of argument over and over that they know will not avail them of the remedy they seek? What do they do?

At the same time, I hear the consistent requests of SRLs to be taken seriously and to be afforded the same respect as everyone else in the courtroom. Judges often express concern that SRLs expect the type of technical assistance from them that might compromise their impartiality. Our interviews suggest that SRLs really do not expect that much technical assistance – most understand that the judge has to remain above the fray – but they do want and ask be listened to with respect, and afforded some explanation when they argument does not succeed,.

This month at the NSRLP we shall be encouraging both judges and SRLs to discuss more openly what they need from each other to enable a system originally designed for use by agents (lawyers) to be function effectively minus those agents (who have priced themselves out of court).

This is not about finger pointing or blaming, but about working together on this common goal. Please join us in meeting in a reasonable place to talk about these challenges.