17 Geo. J. Legal Ethics 423 (2003-2004)
The Disconnect between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality When Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications

handle is hein.journals/geojlege17 and id is 435 raw text is: The Disconnect Between the Requirements of
Judicial Neutrality and Those of the Appearance of
Neutrality when Parties Appear Pro Se: Causes,
Solutions, Recommendations, and Implications
This Article analyzes and suggests an approach as to how judges can deal
appropriately and neutrally with the hugely increased numbers of those who
appear in court without counsel in civil cases.'
Notwithstanding the numerical evidence of the importance of this phenom-
enon, and the obviousness of its impact on the both litigants and judges, during
most of the recent period of rapid growth there has been little public academic or
judicial attention, and indeed little ABA or state regulatory attention, to how the
judiciary should be responding to the challenge of this change in the courtroom.2
* J.D., Harvard (1980); A.B., Harvard (1971). The author offers particular thanks for their ideas and
inspiration to the following: Judge William H. Abrashkin (First Justice, Western Division, Housing Court
Department of the Massachusetts Trial Court); Judge Rebecca Albrecht (Justice, Superior Court, Maricopa
County, Arizona); Barrie Althoff (Executive Director, Commission on Judicial Conduct, Washington State and
former Chief Disciplinary Counsel, Washington State Bar Association); Jeanne Charn, Esq. (Instructor and
Director of the Hale and Dorr Legal Services Center, Harvard Law School); Russell Engler (Professor of Law,
New England School of Law); John M. Greacen, Esq. (Partner, Greacen Associates); Bonnie Rose Hough, Esq.
(Senior Attorney, California Administrative Office of the Courts); Sally Hillsman, Ph.D. (President, American
Sociological Association); Judge Laurie Zelon (Associate Justice of the California Court of Appeal, Second
Appellate District, Division Seven). Notwithstanding the debt owed them all, the faults and inadequacies are the
author's own.
1. In many courts, well over 50 percent of litigants appear without lawyers. For example, in California, a
court study found that in child support cases, only 15.95 percent of the cases had counsel on both sides and that
in 63 percent of cases neither parent was represented (let alone the children). JUDICIAL COUNCIL OF CALIFORNIA,
REVIEW OF STATEWIDE UNIFORM CHILD SUPPORT GUIDELINES 6-21 (1998). More recent California figures show
that 81 percent of eviction proceedings had at least one party without a lawyer. John M. Greacen,
Self-Represented Litigants and Court and Legal Services Responses to Their Needs: What We Know, at 7,
available at http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/SRLwhatweknow.pdf [hereinafter Greacen,
Self-Represented Litigants]. This last paper includes a general summary of the state of research knowledge
about pro se litigants and their cases. Id. at 1-3. Given the importance of the issue, the state of our collective
knowledge can only be described as abysmal. Id. at 2, 32 (describing what is not known).
2. The lack of attention is well-illustrated by ROBERT E. KEETON, JUDGING IN THE AMERICAN LEGAL SYSTEM
172 (1999), in which the only analysis, beyond passing mentions, is a three paragraph section, which draws
attention to the judge's duty under Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), to construe pro se
pleadings liberally.
This reticence is in contrast to the substantial attention now being paid to how courts may appropriately assist
litigants in dealing with the front end of the system and in giving them general information. AMERICAN

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