Dear Justice Corner:
How much assistance, if any, can a judge give a self-represented litigant at trial with evidentiary issues? For example:
|| I have pictures to show the court.
||I don’t understand. These are just pictures.
||The objection to admission of your photographs into evidence was sustained for lack of a proper foundation.
|| I don’t understand what you’re talking about . . . what’s a foundation? What am I supposed to do? I just want to use these pictures to prove my defense.
Say nothing? Stare down the litigant? Move heavy-handedly onto the next question? The best practice is none of the above. Rule 63(A)(4) allows a judge to “make reasonable efforts, consistent with the law and court rules, to facilitate the ability of self-represented litigants to be fairly heard.” The aim in doing so is to give the self-represented litigant a meaningful opportunity to present their case, without compromising the court’s neutrality. To bring about fairness, the court must take responsibility for the trial process. After all, the court needs facts to be adequately presented to decide the case as justly as possible. Yet, the rules of evidence are often the most confusing part of a trial to a self-represented litigant.
In small claims, a judge is guided by relevance. Small claim cases are governed by Rule 286(b) which provides an option for informal hearings, where all relevant evidence is admissible and the court may relax the rules of procedure and evidence. The court may also call any person present at the hearing to testify and may even conduct or participate in direct and cross-examination of any witness or party. So, if the above scenario was a small claims trial, the photograph should be admissible so long as it’s relevant. The judge may ask foundation questions and, of course, determine the weight to be given that evidence.
In other types of cases, a judge could explain – in plain language – the reason for an evidentiary ruling, such as by referring to the authentication requirements under the Illinois Rules of Evidence. Passing on legal information to a self-represented litigant will not compromise the neutrality of the court; rather, it conveys parity and respect. If the litigant is still stumped, the judge may ask unbiased, open-ended questions for clarification and to elicit general, relevant information. This approach is more efficient than slogging through extraneous testimony and persistent objections. Imagine the evenhandedness if in the above scenario the judge said, “Before your photograph can be admitted into evidence, the Rules of Evidence require you to establish that it is what you claim it be. For example, what does the photo depict and how do you know it’s accurate?” The judge should then explain why the questions are being asked and that they should not be taken as any indication of the judge’s opinion of the case.
So too, being proactive beforehand will assist the self-represented litigant’s preparation for trial. A judge may explain the process to the self-represented litigant just as it would explain it to a jury, including elements of the claims and defenses, the burden of proof, and the judge’s duty to apply to the facts to the law. It’s been said, expectations are premeditated resentments. And so, a judge should bring about realistic expectations by forewarning the litigant of the applicability of court rules and that the court will neither favor nor penalize a litigant because they are self-represented. By the same token, when the other party is represented by counsel, the judge should inform counsel of the potential need to modify courtroom procedure to learn the facts of the case and that an objection should be raised if counsel believes the court is overreaching. Sometimes, a judge may even egg on a stipulation to a particular exhibit.
There’s no doubt balancing self-represented litigants’ perception of procedural fairness while maintaining neutrality in the courtroom is a tense and difficult task for a judge. Every judge does it differently. In the end, judges, as role models in the courtroom, should provide a positive environment for those who represent themselves.
- Justice Corner, Illinois Supreme Court Commission on Access to Justice Court Guidance and Training Committee
- Chief Judge Michael J. Sullivan, McHenry County
- Presiding Judge Clarence M. Darrow, Rock Island County
- Presiding Judge Sharon M. Sullivan, Cook County
- Chief Judge Kevin P. Fitzgerald, McLean County
- Judge William G. Schwartz, Jackson County
- David Holtermann, Lawyers' Trust Fund, Chicago
- Joseph Dailing, Legal Aid Consultant, Rockford
Please email your questions, comments, concerns, suggestions, or stories about self-represented litigants to firstname.lastname@example.org.