Page 126 - Impact: Collected Essays on Expanding Access to Justice

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But what was the consequence for the unrepresented litigant of the judge’s sua sponte recusal? The court indicated that given the facts (i .e ., monetary value) of the case, representation in the private market was unlikely and appointment of counsel by the court would be an unjust imposition on the private bar .14 The court also noted at length the initiatives of the judicial system and bar associations to provide counsel in civil cases, all of which came up short in providing counsel in cases such as the one before this court .15 So, the result for this unrepresented litigant was that “[t]he case should be assigned to another judge of the court by random selection .”16 Thus, he then got another judge who would be even less likely to “intervene” on his behalf after Judge Weinstein’s recusing himself precisely because he had “intervened .” Accordingly, he continued as a pro se litigant with no one to assist him .17 But Judge Weinstein had noted that “[i]n many cases, [including this one?,] pro se justice is an oxymoron . Without representation by counsel, it is probable, to some degree, that adequate justice cannot be served in this case .”18
Thus, by Judge Weinstein’s own analysis, this unrepresented litigant would probably be denied equal access to justice because of his inability to afford legal counsel and the system’s failure to provide free legal counsel, and also because of the court’s refusal to continue to “intervene” on his behalf . But regarding the court’s recusal and refusal to further intervene on the unrepresented party’s behalf because of impartiality concerns, one must ask whether there was an alternative to such judicial passivity? As indicated above, there is a plethora of literature regarding the ways in which a judge canintervenetoassisttheunrepresentedlitigantwithoutviolatingimpartiality .19 Thatliteratureand protocols for judicial intervention adopted in a number of state courts raise a number of questions regarding the interventions in this case . Did Judge Weinstein have to resort to leading questions about discrimination occurring on the key date ( July 2013) that defeated the statute of limitations defense? The decision indicates that the record also contained disciplinary action forms “spanning from March 19, 2012 through July 24, 2013 .”20 There is little dispute that a judge can ask open- ended questions about such evidence already in the record and that it can be done in a manner that doesnotimperilthecourt’simpartiality . Indeed,onemightaskwhetherthemereaskingof“leading questions” necessarily compromised impartiality or was prejudicial to the defendant? Even in an adversarial proceeding where both parties are represented, leading questions are permissible under a number of circumstances; Federal Rule of Evidence 611(c) is particularly instructive in this regard .21 We might also want to think seriously about how the revealing of truth through the intervention of the court can ever be deemed prejudicial to the represented (corporate) party? There are a number of other such questions that this case suggests, but which are beyond the scope of this essay .
Unfortunately, this learned jurist seemed to be aware of only one option for assisting the unrepresented litigant: representation by counsel . In the decision, the court refers at great length to the possibilities inherent in the modern right to counsel initiatives to “fill the void .”22 In stark
14 Id. at 561.
15 Id. at 562–63.
16 Id. at 562.
17 The court database indicates that the case was later settled/discontinued by stipulation. The terms of the stipulation were not available on that database.
18 Floyd, 78 F.Supp.3d at 561.
19 See, e.g., Rebecca A. Albrecht et al, Judicial Techniques for Cases Involving Self-Represented Litigants, 42 Judges’ J. 16 (2003); Richard Zorza, 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, 17 geo. J. legal eThics 423 (2004).
20 Floyd, 78 F.Supp.3d at 561.
21 fed. r. eVid. 611(c).
22 Floyd, 78 F.Supp.3d at 562–63.
Impact: Collected Essays on Expanding Access to Justice