A husband and wife stand impatiently in the crowded waiting room of the Maricopa County (Ariz.) Superior Courthouse when a court officer introduces himself and escorts them into the almost-empty courtroom. They look up and see a name placard that reads: The Honorable Rebecca Albrecht. The judge enters, the bailiff announces the case, and Judge Albrecht has barely gotten started when the husband and wife begin hurling accusations and insults, talking over each other in an effort to explain their version of the marital discord that brought them to this point. Gavel in hand, the judge looks down from the bench, her patient smile beginning to fade. There are no lawyers in sight.
Welcome to a trial court anywhere in America, where judges must endure the raw emotion of lawyerless litigants lacking the resources to hire competent counsel to represent them. Judge Albrecht has served as a trial judge since 1985 and ruled on countless divorce cases in which both parties were pro se. Each time, it’s a new struggle. Faced with unrealistic expectations and often belligerent demands, Albrecht must deliver a just outcome to dueling parties who don’t understand proper procedure, rules of evidence, legal reasoning, or even proper courtroom decorum. It’s a task that taxes the judge’s limited patience and time.
Self-represented litigants often come to court with legitimate problems and no clue how to proceed to seek relief. Court rulings have generally freed judges from any ethical responsibility to provide guidance to
self-represented litigants: “The trial court is under no obligation to become an ‘advocate’ for or to assist and guide the pro se layman through the trial thicket.” U.S. v. Pinkey (1977) Moreover, the judicial code of ethics expressly prohibits judges from providing advice that would undermine their impartiality. As a consequence, many judges steer clear of offering even the most basic assistance for fear of violating judicial oaths.Jona Goldschmidt, a criminal justice professor at Loyola University in Chicago, says too many judges equate impartiality with passivity. “We ought to make it clear that the two interests of being impartial and assisting pro se litigants are not mutually exclusive obligations,” says Goldschmidt, who wrote a 1998 guidebook for judges on how to help self-represented litigants without crossing the line. “At the end of the day, what we’re talking about is minimal assistance, but assistance that is ultimately very necessary.”
When presiding over the Maricopa County Superior Court, Judge Albrecht says she “will get you on the playing field and tell you what the rules of the game are, but when it comes to how you play the game, that’s up to you.”
After asking the bickering ex-lovers to stop interrupting each other, Albrecht decides she has heard enough. Gathering the facts from such heated, non-lawyerly exchanges is among the most difficult tasks any judge will face. Albrecht grants the couple the divorce, citing obvious irreconcilable differences. The two depart no less quietly than they entered. Albrecht takes a deep breath. The bailiff announces the next case.