Courtroom JUSTICE FOR ALL including Self Represented Litigants

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Courtroom JUSTICE FOR ALL including Self
Represented Litigants

• Presented by Robin F. Wheeler and Stephanie A.
  Nye
• July 27, 2009

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OBJECTIVES

• Learn about SC Access to Justice Commission
• Become familiar with ethical considerations when
  working with SRLs
• Learn techniques to assist you with SRLs in your
  courtroom
• Identify state and national Resources to assist
  you with SRLs

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SC ATJ Commission

• Purpose
• Goals
• Findings from Public Hearings
• Committees SRL, Pro Bono Staffed Programs
• Work Groups Forms, Clerks of Court, Court
  Interpreters for the Deaf

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SRL Phenomenon

• DIY Nation 1990s
• Home Depot
• Judge Judy, Judge Joe Brown
• Financial Crisis
• Landlord/Tenant
• Foreclosures
• Family Law divorces, child support modifications

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Maryland Study of SRLs

• 60 women/44 African American/9 Hispanic
• Income
• 72 with household income below 30,000
• Over 40 have incomes below 15,000
• 92 of the total served had household incomes
  below 50,000
• Cases
• 38 - Divorce/Annulment/Separation
• 32 - Custody
• 16 - Child Support/ 11 - Visitation/3 -
  Alimony/Name Change and Paternity
• Education
• 46 completed high school
• 28 completed some college
• 11 less than a high school education
• 5 Advanced degrees
• 9 Bachelors degree

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Barriers Identified from the Public Hearings

• Use of Legalese, not PLAIN language
• Not Knowing How to
• Maneuver Clerks Office
• Complete Service of Process
• Prepare an Order After a Hearing
• Enforce Orders and Judgments
• Legal Requirements are not intuitive

The South Carolina Access to Justice Commission
held regional public hearings from March to June
2008. The final public hearing was held at the
Supreme Court of South Carolina on November 5,
2008. A copy of the Executive Summary of the
Public Hearings may be found at
http//scaccesstojustice.files.wordpress.com/2008/
09/executive-summary-april2009.pdf
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The Big Picture

• Video

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Judicial Ethics

• Ethical Rules Support Access and Neutrality
• SC Code of Judicial Conduct Identifies Two
  Ethical Duties
• Provide every person with an opportunity to be
  heard
• Perform all duties impartially and diligently

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Judicial Ethics

• Judicial Oath Supports Access and Neutrality
• A judge affirms
• To treat all people who enter the courtroom with
  civility, fairness, and respect
• To listen courteously, sit impartially, act
  promptly, and rule after careful deliberation

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Guidance from Other States

• Judges Can
• Explain the law, the process, and the decision
• Call witnesses
• Ask questions
• Encourage the parties to consider settlement

• Judges Cannot
• Deny rights to SRLs
• Act as an advocate for SRLs
• Ignore substantive and procedural requirements of
  the law

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Dimensions of Judging
Neutral Non-Neutral
Engaged Creates environment where parties feel comfortable discussing the relevant facts Engages the parties, as needed, to bring out these facts Ensure each party has an opportunity to fully explain their position. May intervene to deter or prevent one side from presenting his or her story May allow bias to cloud how evidence is seen.
Passive Leaves it to the parties to present evidence and lay foundations Does not engage the parties, but simply rules on motions and objections Relies on the balance of the system to ensure neutrality. Same as neutral-passive EXCEPT allows bias to cloud whether evidence is admitted and how it is evaluated.
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Communication

• Amount and quality of information conveyed
• Likelihood of compliance with court orders
• Actual and perceived fairness of the court
  proceedings
• 3 Types Verbal, Non-verbal, Active Listening

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Verbal Communication

• Use understandable terms and definitions
• Ask questions to clarify comprehension
• When questioning litigant
• Pause after each question
• Use nonverbal cues to show attentiveness (eye
  contact, lean forward, tilt head, etc.)

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Non-Verbal Communication

• Most communication is non-verbal, and it is often
  misinterpreted
• Cultural differences
• Types of non-verbal communication
• Voice
• Eye contact
• Facial expressions
• Gestures
• Body orientation
• Appearance and objects
• Silence

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Active Listening

1. Focus on the speaker
2. Ask questions if necessary
3. Communicate understanding
4. Encourage confirmation of the message

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Bias

• Nonverbal behavior
• Increases due to
• Stress
• Time pressure
• Distraction
• Boredom
• Absence of accountability
• No motivation to be fair and accurate
• Emotional state

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Unintended Bias

• Techniques to Minimize Implicit Bias
• Stay Motivated to Be Fair and Accurate
• Maximize Accountability
• Take Ample Time
• Minimize Distraction and Pay Attention
• Be Conscious of Difference
• Confront Cultural Stereotypes
• Be AWARE

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Dimensions of Judging Video
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LEP

• LEP Limited English Proficiency
• Courts are encountering more litigants who have
  LEP
• Be aware of a litigants language level and adapt
  your speech accordingly

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LEP

• Video (28)

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Angry litigants

• Remain calm
• Acknowledge frustration and feelings
• Communicate an understanding of the position
• Call for a recess if needed

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Mental Illness

• Each individual is different and cannot be
  labeled simply by diagnosis
• Disengage
• Say No Calmly
• Become Familiar with Community Resources
• Learn Strategies to Cope With Difficult Cases

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Mental Illness

• Video (30)

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Know Your Mental Health Resources

• 1. Area Mental Health Center
• Hospitalization
• Law Enforcement
• Adult Protective Services
• Guardian Ad Litem

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SRL Resources

• www.sccourts.org
• www.scbar.org
• www.scjustice.org
• www.selfhelpsupport.org/
• www.lawhelp.org/SC/
• www.ncsconline.org