Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:39] Speaker B: My name is mia Robertson. I'm a 1L at Harvard Law School and I'm so excited to be here today with Liliana Yearns to speak a little bit more about her recent blog, why Active Judging Isn't Working Yet. Excited to be here with you, Liliana. Can you please start by telling us a little bit about active judging and what that is?
[00:00:57] Speaker C: Yeah, absolutely. Thank you, Mia. Like she said, I'm Liliana. Super excited to be talking about this topic today. So just diving straight in, I want to give you guys a little bit more context on what sort of brought about this movement of active judging in civil courts. There is no universal access to attorneys. So what that means is that roughly 76% of state civil trials involve one or more pro se party.
And so what this means is that courts need to adapt to pro se litigation rather than the other way around.
And there is where active judging comes in. What this means is that state civil judges modify the way they conduct hearings when one or both of the litigants are unrepresented. They do this in three primary ways, the first being adjusting procedures.
So that would mean dismissing formalistic requirements and discovery and presentation of evidence, allowing narrative testimony, identifying relevant documents or witnesses, and clarifying evidence in plain language.
The second way judges can do this is by explaining governing law and processes.
So this means addressing what legal issues matter, what kind of evidence is relevant, utilizing scripts to explain rights and procedures.
And then last, judges can elicit relevant information during testimony.
This one is pretty straightforward, basically just that judges know what facts are most important and they can ask litigants directly to get the information that they need. So that's the main overview of what active judging is.
[00:02:28] Speaker B: That's really fascinating and I really like that you note that there is a problem here and it has to be solved by someone. So is this a new concept? Is active judging a new thing?
[00:02:39] Speaker C: It's relatively new. It first emerged around 1999.
Russell Engler was one of the earliest scholars to begin writing on the topic. And in his paper he highlighted the then increasing rates of unrepresented people in state courts specifically. And he argued that judges can offer assistance.
What is probably most important, I think, at least about Engler's work, is that he really developed the vocabulary of what active judging means. Specifically, he argued that impartiality is not the same as passivity.
Then, around 2004, a lot more significant scholarship emerged. Deborah Rhode published her books Access to Justice, highlighting the growing pro se and the legal profession's imperative in addressing that crisis. Richard Zorza is another really big voice in the field. He published a series of papers emphasizing the importance of transparency and judicial engagement. And he said that passivity importantly threatens judicial legitimacy.
And then jumping ahead a little bit, Jessica Steinberg is another scholar who I find particularly interesting.
She further develops the approach to active judging, but she also advocates for an even broader change.
So Steinberg calls for removing the norm of party driven litigation in civil courts. This would basically require that courts take a more affirmative role in case development.
So rather than just letting the parties develop the cases themselves, judges would be serving process, developing the factual record, raising possible legal claims, et cetera. So all that's to say, there's a pretty robust mass of scholars at this point who support this judicial reform.
[00:04:20] Speaker A: Wow.
[00:04:20] Speaker B: It sounds like it. And it's also really interesting that the court system is being responsive to those scholars or maybe to these ideas.
How widespread is this? How many judges are doing this?
[00:04:31] Speaker C: Yeah, absolutely. I definitely agree with. So the ABA actually modified the Model Code of Judicial Conduct to state that providing, quote, reasonable accommodations to pro se litigants does not violate ethical obligations.
So that, of course, is a really big step towards popularizing the practice. And then states have also followed suit. So they 11 states have actually, through their judicial Ethic Codes, encouraged active judging. And then 29 states have explicitly permitted the model. The remaining states are silent on the issue. So they don't prohibit active judging, but they also don't really explicitly address it.
[00:05:14] Speaker B: And what are some of the pros and cons of this model from your perspective? And maybe that just are being discussed in academia?
[00:05:21] Speaker C: Yeah, absolutely. So I think that probably the most obvious pro is that there's just better fact finding. Right. Because there's someone in the courtroom who has a law degree and knows which facts are most important in deciding a case. They're also less adversarial, which is perhaps more suitable for these lower level civil cases to begin with.
And then another really important pro is that this just allows for more balanced presentation of evidence.
So this is something that we'll get into a little bit later. But plaintiffs often have more developed cases because they're receiving assistance from legal nonprofits in the front end. So judges can then put their finger on the scale and get a more balanced understanding of the facts from both sides. And then two of the main cons, the first being that this just causes this. It takes longer to hear cases.
So part of that is that it takes longer to explain things. It takes longer to ask questions and to answer questions.
And also because litigants are often appearing pro se, that means that they are not following procedural rules. This can result in procedural defaults, which of course, resolve more quickly than going to an actual hearing and hearing it on the merits.
And then probably the most important con, in my opinion, is just that this is a very underdeveloped jurisprudence.
So scholars and think tanks have created informal guidelines giving judges best practices, but no formal incentive currently exists to streamline and standardize the practice.
What that means is that judges are ultimately unsure of where the line is drawn between being active and being unfair.
So without this kind of oversight and without this formalization, judges are left with just pretty much unfettered discretion. And this can result in more biased and uneven application of rules.
And this is particularly troublesome in state civil courts because there is little oversight through the appeals process.
Decisions are rarely written down. And in fact, most pro se litigants are disproportionately female and individuals of color.
So those are some of the pros and the cons. There's definitely room for development.
[00:07:38] Speaker B: That is really fascinating. I especially find fascinating the point about uneven application. And it would be interesting to see what it would look like to have even application and how that could maybe be a little bit more centralized. You've laid out those pros and cons. So in practice, is active judging actually working?
[00:07:57] Speaker C: Yeah, and I'm glad you asked this, because this is the main thing that I wanted to discuss in my blog is this paper that was written by Anna Carpenter in 2022 titled Judges in Lawyerless Courts. And what Carpenter argues is that active judges are not actually all that active. And she makes this finding by looking across three state civil courts to see how active judging varies under different systems.
So I'm just going to kind of dive into the nitty gritty of this case because I think it's super interesting.
So, like I said, Carpenter looked at three state civil courts. We don't actually get to know where they are, so she just labeled them Centerville, Plainville, and Townville. But these jurisdictions vary greatly on several relevant dimensions, like race, politics, and wealth. But most importantly, they vary in the way that their court systems are set up.
So two of the jurisdictions have appointed judges, one has elected.
Centerville's ethics rules actually encouraged active judging, like we discussed earlier, while the other two just had a permissive approach.
And also, all three jurisdictions varied in their justice index score, which is basically an aggregated score that ranks US States based on the strength of their access to justice reforms.
So those are the jurisdictions that Carpenter looked at. And what she essentially did was she sat in on many protective order hearings. She specifically looked at protective order hearings because there is more consistent substantive law across these three courts. And she basically got 357 transcripts from those hearings. She observed around 200 hours of live court hearings, and she also had interviews with the judges to better understand their thought processes and how they think about active judging.
So now that we've covered the methodology, I want to tell you about Carpenter's results, because they're really quite interesting, and I foreshadowed this before, but Carpenter really found no meaningful variation across judges or jurisdictions. When discussing these results, Carpenter specifically noticed two primary trends across the judges.
The first was maintaining legal and procedural complexity. The second is what she calls tight control over presentation of evidence.
So maintaining legal and procedural complexity basically just meant that judges would not really be willing to explain the jargon that they were using, and they were not willing to slow things down and break it down for the litigants.
One thing that they would do is judges would deliver opening speeches explaining the process.
But again, they didn't really repeat these as the docket proceeded, and they didn't attempt to clarify them. If there was any confusion.
One quote that I thought was particularly interesting, and mind my pronunciation, I think it actually just illuminates my point. But this. One of the judges said, quote, the court will do voir dire to determine if the child knows the difference between truth and a lie and is competent.
Another quote, you have the burden of proof. Provide me with the factual predicate for the relief you seek in this case.
So I think that these just really illuminate that even people who are familiar with the law might come into these courts and not really know what they need to say or what the relevant procedures are.
And then when litigants were confused, judges refused to clarify some other quotes. I'm not your lawyer. I can't try the case for you.
The second bucket that I mentioned is the tight control of presentation of evidence.
So we mentioned that defendants only have the opportunity to present facts during live hearings, whereas plaintiffs have more of an opportunity pre trial to file petitions and submit more written documents.
What this meant oftentimes is that judges really relied on the petitions.
They were reluctant to accept any other evidence. And Carpenter kind of describes this rather astutely in my opinion. She says that the petitions defined the universe of evidence that judges were willing to accept.
What this also meant is that judges would ask open end questions like what do you want to tell me?
Another quote that I thought was relevant was, this provision is for your protection. Can you tell me what happened? The petitioner answers, the paper says, and then the judge immediately cuts her off and says, I don't care what the paper says. And I think this really just illustrates that judges ask these open ended questions litigants don't really know how to answer. And then when they start to go into a narrative, the judge does not accept that as proper.
[00:12:26] Speaker B: It's so disappointing to hear that those were her findings because it sounds like we're getting all of the costs and none of the benefits.
[00:12:34] Speaker C: Right?
[00:12:34] Speaker B: We're still slowing the proceeding down because the judge is still giving these opening speeches and they're still having to interrupt and stop the litigant, but we're not getting any of the benefit. Like does pro se litigant meaningfully participate in the hearings?
Why were the judges so consistently unwilling to accommodate the pro se?
[00:12:54] Speaker C: Yeah, I totally agree.
So I do want to start off by saying that I think that these judges are well intentioned, right? They see themselves as being active judges and facilitating these processes. And this is something that Carpenter discusses in her paper as well, is when she spoke with these judges, they saw themselves as pushing the movement forward.
I think part of the issue here is just that the ethical and legal boundaries of this new judicial reform are rather ill defined.
So judges don't know what's appropriate for them to say or do. And because of that, they fall back on what's most familiar to them, the kind of model that you learn about in law school.
Another part of this is that judges face pretty significant time pressure in these large, high volume dockets. So they have less time to explain these things and ask questions. They get impatient and they just want to move things forward, not only for their own sake, but also for the litigants who are waiting in line for their term to appear before the judge.
Another part of this is just a norm of what we instinctively view as fair.
There's this idea that court needs to be an adversarial and highly procedural contest. Again, this is the model that we think gets us the best results. Judges are less willing to depart from that when it's the conventional view.
Then lastly, this is something that I've mentioned, is that petitioners, more so than defendants, have the ability to develop their cases before entering court.
So there's really no free legal services for defendants. Anna Carpenter, in the three state civil courts that she looked at noted that none of the defendants had access to free legal services.
So defendants were just left to this inherently more disorganized mode of pleading. Their cases live in person through testimony. So those are the main reasons that we didn't really see the results. We maybe were hoping to.
[00:14:52] Speaker B: So you mentioned that Carpenter spoke with state court judges. Can you just tell us a little bit more about those interviews?
[00:15:00] Speaker C: Yeah, absolutely. I think something that was perhaps surprising to me is that judges are more than willing to accommodate pro se litigants, at least in theory.
Specifically, a lot of judges mentioned that they prefer pro se litigation because it can be more efficient. So this is another quote that was in Carpenter's paper. It says, and this is from a Plainville judge. He said, if there are two lawyers, then it's going to be a formal hearing. And it takes for frickin ever, which is fine, but I can get to the truth, I can get to the facts. And I think that this quote touches on a lot of things. First, it's that again, judges are very oriented towards being efficient, even at the cost of maybe judicial accuracy. Even if having an attorney in the courtroom might make decisions more fact focused or accurate, they would rather have things done.
I think it also gets to what I was saying about how judges do believe that they are able to accurately assess who's being honest, what facts are most important.
When he said I can get to the truth, I can get to the facts.
I think that although this might be true to some extent, this is really what is driving this behavior of judges, of cutting off narrative testimony is they think that they already understand and know the most relevant facts. And because of that, it's their job to get to them the most quickly.
So again, although well intentioned, I think that ultimately it goes to show that judges are coming into hearings knowing how they want to rule just based off of the pleadings that are filed by petitioners.
[00:16:41] Speaker B: Liliana, you make a really good point that these judges are clearly well intentioned and wouldn't be trying to provide any guidance if they weren't. So what do you think we can do moving forward to make sure that they actually can in practice? Accommodate pro se litigants.
[00:16:56] Speaker C: So I think that one of the most important takeaways from this is that guidance from scholars and changes in judicial ethics codes might not be enough because we've had this happen and we still are not seeing active judging perform in the way that it was intended to.
So I think part of this is that rather than relying on individual judges to implement reform, it might be preferable to pursue different legislative solutions. And this is something that Andrew Hammond alludes to in his paper against civil Gideon and for pro se court reform.
So Hammond talks about how states can implement a formalized process of simplifying procedures and pleadings, standardizing pretrial forms, and guiding court filings.
Again, what this means is that rather than judges having to decide for themselves when to loosen procedures and when to tighten them, states can take the reins and take some of that discretion that we were concerned about out of the judge's hands.
This could also include empowering court staff to more actively assist in pretrial development and hearings. I think judges really face a lot of the burden here, but if we are able to spread out these efforts more, then there's less individual discretion that can get in the way.
Another thing that Carpenter mentions is that this is a really good opportunity to expand the model of engagement into less extemporaneous and time pressured stages of the judicial process.
So rather than relying on live testimony, courts can instead put more of their efforts into pre hearing filings, settlement discussions, and preparation of evidence.
These are less time pressured and they're more thoughtful in the way that they can actually tell the stories of the litigants who will then appear before court.
And then lastly, I think that the large volume of cases that hinders effective judging indicates that states should consider more thoroughly which problems belong in courtrooms versus which are best addressed through upstream solutions.
Extrajudicial programs such as mediation and community processes are a good way to get rid of this court backlog and allow judges to focus their best efforts on each case before them.
[00:19:13] Speaker B: Well Liana, I think that was topic.
[00:19:15] Speaker C: Yeah, absolutely. I think that really going My main takeaway from all of this is that it's best for us to look to solutions outside of the court. So thank you so much for being here, letting me talk about this. And yeah, it was wonderful to get to share a little bit of what I learned. Thank you.
[00:19:34] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[00:20:00] Speaker D: Last year, they changed the way that they interpreted these statutes, and so now it basically took away the right to a bond hearing for everybody. Well, whether or not that interpretation is legal or is the correct, because no law changed, it was just the interpretation of the law that changed is something that's been hotly litigated. And it's been really interesting how that has played out and really devastating to our clients because of the first CASA decision, the way that that's interacted here. Because now you're having to file a habeas corpus petition in federal district court to get a federal district judge to order the the immigration judge in immigration court to give your client a bond hearing.
