Domestic violence groups are showing an interest in a potential state Supreme Court rule that would give judges leeway on how to deal with those representing themselves in court.
The rule, if the court adopts it, would permit judges to “make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”
It also would offer a few examples of how a judge could better aid a self-represented litigant if the change is approved, such as explaining the proceedings and legal situations in plain terms, permitting narrative testimony and telling the parties what is expected of them.
The petition was put forth in September by the Access to Justice Commission and the court will hold a public hearing for it at 9:45 a.m. Monday.
So far, the proposal has elicited 35 letters of support, more than any other rule petition in recent months. Nine of those support letters are from domestic or sexual violence groups that say the measure is another step in ensuring that victims’ arguments are treated fairly by judges.
“It would be unrealistic to expect a person appearing pro-se to function with confidence and understanding without some assistance from a legal expert,” states a letter attributed to Braden Bayne-Allison, Vilas County Outreach Coordinator for Tri-County Council on Domestic Violence & Sexual Assault. “It would be beneficial if judges were to ensure that individuals understood the process during a hearing as it happens.”
Tony Gibart, policy coordinator for End Domestic Abuse Wisconsin said the petition was something the group has monitored for some time. Many people who leave abusive relationships, he said, end up without a lawyer when they go in front of a judge for a restraining order or divorce.
“Not only the [court] process, but the substantive law can be confusing to lay people,” Gibart said. “It’s difficult for some attorneys to understand those, you can imagine … a victim.”
He said the group kept other shelters and advocates aware of the rules petition and its potential effects.
Wendy Gehl, legal advocate and staff supervisor for Harbor House Domestic Abuse Programs in Appleton, said that the high costs of attorneys, combined with an economic downturn, has made it a “privilege” to have representation in court.
“At the end of the day, we want justice and we want fairness,” Gehl said. “Just because they can’t afford counsel doesn’t mean they shouldn’t have their position heard.”
The proposed rule change was modeled, at least in part, on an American Bar Association model code that sought to clarify how judges can help self-represented litigants while remaining impartial.
“It is not a violation of this rule,” the ABA’s model code states, “for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”
Wisconsin’s proposed rule change further notes “a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality.”
Commission member and retired Court of Appeals Judge Margaret Vergeront said she will testify in support at Monday’s public hearing, and expects judges and attorneys from across the state to weigh in, as well.
In addition to domestic violence groups, the petition drew letters from attorneys and judges from across the state. The Wisconsin Counties Association also is supporting it.
Vergeront said that the commission spent a lot of time while drafting the petition talking to attorneys, judges and groups to make sure that the proposal addressed all their needs.
She pointed out that the proposal is fairly “modest” when compared to other proposals to help indigent clients. This one merely clarifies a judge’s ethical boundaries, Vergeront said, and does not implement rules or projects that would cost money.
“When all is said and done,” she said, “there are still a lot of people who come to court without a lawyer.”
John Ebbott, executive director of Legal Action of Wisconsin Inc., called the proposal a “no brainer.”
“I’m not sure how anybody would oppose this,” he said.
Vergeront and supporters say this is just a small piece of what needs to be done, however.
“I think this is one way to improve,” Gehl said. “There are probably a lot of things that need to be done.”
From: Wisconsin Law Journal