Page 125 - Impact: Collected Essays on Expanding Access to Justice

information; adopting simplified procedures; mandating plain language forms; providing assistance by non-lawyers; and structuring unbundled legal service programs; etc .7
In addition to these strategies, a key challenge has been to convince judges that they can and, indeed, should take a more active role to assist unrepresented litigants and that this can be done without compromising judicial impartiality . A central challenge has been to make judges realize that such an expanded role is essential even where other reforms are in place . Over two decades of research have confirmed that the legal information provided to unrepresented litigants by plain language forms, simplified procedures and resource centers is generally rendered relatively useless once the unrepresented litigant enters the courtroom . Without the assistance of the judge in helping her articulate her claims and present her narrative, the unrepresented litigant is generally incapable of mustering her evidence according to a cognizable legal theory that might demonstrate her right to the relief she seeks .8
Understandably, judges trained in our adversarial judicial system find this challenge daunting . Since the only model of intervention with which they are familiar is the intervention of a client’s attorney, their interventions may inappropriately take the form of such adversarial intervention and risk their being viewed as advocating for one side against the other . However, judicial and bar associations, as well as scholars, have developed and recommended methods that avoid such impartiality concerns .9
Nevertheless, due to impartiality concerns and an overly restricted notion of the role “judge,” some judges continue to resist providing the assistance needed by unrepresented litigants . Unfortunately, in some instances, the emphasis in right to counsel rhetoric regarding the categorical necessity of counsel has provided some judges with a further justification for their inaction . One recent case provides a troubling example .
In Floyd v. Cosi, Inc., a well-respected judge sua sponte recused himself from an employment discrimination case because “[l]ack of civil counsel required intervention by the court on [pro se] plaintiff ’s behalf . This could create the appearance of partiality in future decisions and therefore requires recusal .”10 Apparently, the court had “intervened” by asking “a series of leading questions” that revealed the occurrence of discriminatory acts during a period that defeated the represented corporate defendant’s statute of limitations summary judgment motion .11 Nevertheless, the court also noted that, in spite of its “intervention,” “no partiality could be construed in rejecting defendant’s motion for summary judgment based on timeliness .”12 However, the court still concluded that “if the plaintiff were to continue pro se, the court would probably be forced to intervene and, in effect, advocate on his behalf, possibly prejudicing the defendant’s case . . . . [R]ecusal now is desirable to avoid the appearance of partiality by the undersigned judge in future decisions in the case .”13
7 See, e.g., richard zorza, The self-helP friendly courT: designed from The ground uP To work for PeoPle wiThouT lawyers (2002); Jona goldschmidT eT al., american JudicaTure socieTy, meeTing The challenge of Pro se liTigaTion: a rePorT and guidebook for Judges and courT managers (1998).
8 See Paris R. Baldacci, Assuring Access to Justice: The Role of the Judge in Assisting Pro Se Litigants in Litigating their Cases in New York City’s Housing Court, 3 cardozo Pub . l. Pol’y & eThics J. 659, 661-63, 683-85 (2006) (and works cited there).
9 Id. at 671–76 (and works cited there).
10 Floyd v. Cosi, Inc., 78 F.Supp.3d 558, 560 (E.D.N.Y. 2015) (emphasis added).
11 Id. at 561.
12 Id. at 561–62.
13 Id. (emphasis added).
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