The article that Judge Leben referenced in his recent post both underscores the points I made in my post from last month (about the need for courts to show their work to promote procedural fairness) and sets this post up nicely. The vanishing oral argument phenomenon at our appellate courts means that few pro se litigants probably have the occasion to present oral argument anymore, but I’d like to challenge that notion.
When I clerked on the U.S. Court of Appeals for the Sixth Circuit twenty years ago, the practice was (and I believe remains) not to permit pro se litigants the opportunity to participate in oral argument. I thought that practice made sense—after all, it’s unreasonable to expect non-lawyers to effectively answer challenging legal questions at argument. But after I became a state appellate judge, I discovered that my court routinely permits pro se arguments. After sitting through several such arguments, I’ve changed my views. Let me offer two examples that help explain why.
In one case, the criminal defendant had served his time for a misdemeanor conviction and sought to challenge his sentence after the fact. That raises mootness concerns, but the young man came to court and freely acknowledged that a successful ruling wouldn’t help him but he hoped that it might help others. He was articulate, poised, and thoughtful (and probably better than some lawyers I’ve seen!), and I was genuinely impressed by him. After the argument ended, I said “Mr. Jones, thank you for your arguments. You did a really nice job today.” The young man was grinning from ear-to-ear as he walked out of the courtroom.
In the second, a “sovereign citizen” came before us in an ill-fated quest to declare all property taxes unconstitutional. However, all members of the panel actively listened to him and allowed him to make his argument. He seemed somewhat amazed by this, and at the end said, “Thank you for listening to me. No court has let me talk before.” Think about that for a minute – some people just need to feel like they’ve been heard. And when no one gives them the time of day, that can reflect poorly on the judiciary.
As these two examples probably indicate, the reason I’ve modified my view on pro se oral arguments is a recognition that it’s not always for the court’s benefit – sometimes it’s more for the litigants’ benefit. They want the opportunity to come in and feel like they’ve been heard and treated seriously. Sometimes, the press of an appellate court’s docket may not allow for all pro se arguments, but my (now) view is that we should give them that opportunity whenever we reasonably can. And this certainly dovetails with the points made in Professor McAlister’s excellent article.
I think these examples carry some lessons for the trial courts as well. Have trial judges had their share of difficult or uncooperative pro se litigants? I don’t doubt it. But maybe consider approaching the next case with a pro se litigant from the vantage point of understanding that this person really wants to be heard and probably is overwhelmed by the judicial process. What can we do—as either a trial or appellate judge—to make the often challenging experience of coming to court and representing yourself a little easier on the pro se litigant (obviously without disadvantaging the other side)? Something as minimal as active listening and showing the party that you understand their position might go a long ways to ensuring that they walk away from this experience with a more positive view of the judiciary. – Pierre Bergeron
Procedural Fairness For Courts and Judges 