The Californian courts have for some time been working on ways to assist a court system that must cope with large numbers of litigants in person. Bonnie Hough presented research by Greacen at the International Legal Aid Group’s 2011 conference which provides some interesting pointers to what the Ministry of Justice, the Judicial Studies Board and the Judiciary themselves should be considering. There are strong echoes of my own work with Mark Sefton, and Hough and Greacen have years of experience of working on litigant in person issues.
The first point is to recognise what litigants want– the opportunity to be heard, equal treatment with others in the courtroom, respectful treatment, and a sense that the judge care about his or her case. Even losing litigants can – and often do- leave courtrooms satisfied that their case has been fairly dealt with if these concerns are attended to.
Similarly, where judges communicate effectively, self-represented litigants can “understand what is happening in family law hearings at a deep and nuanced level.”
What kinds of factor foster such good communication:
- Judges have to care about the litigants’ understanding of the proceedings.
- They take the time required to explore and resolve each issue presented.
- The give both parties an opportunity to be heard on each issue – without allowing the hearings to consume a lot of court time.
- They speak in plain English and avoid the use of legal jargon.
- Where it is necessary to use legal terms they take the time to make sure that the parties understand the meaning of the legal concept.
They also use a number of effective practices to structure the hearing so that it is understandable. These include:
- framing the issues to be decided;
- asking questions to elicit information needed to make decisions;
- making rulings in open court as the hearings proceed;
- summarizing the terms of the order at the close of the hearing;
- paying close attention to details of compliance with the court order, and
- setting the parties’ expectations for future developments in the case, including future hearings.
- Use of nonverbal skills (good body language and techniques to convey active listening, for example) were also seen as important precursors to successful communication and litigant satisfaction.
There were a number of basic practices which good judges used. They included:
- Framing the subject matter of the hearing
- Explaining the process that will be followed or guiding the process
- Eliciting needed information from the litigants by
- Allowing litigants to make initial presentations to the court
- Breaking the hearing into topics
- Obviously moving back and forth between the parties
- Maintaining control of the courtroom
- Giving litigants an opportunity to be heard while constraining the scope and length of their presentations, and
- Giving litigants a last opportunity to add information before announcing a decision
- Engaging the litigants in the decision making
- Anticipating and resolving issues with compliance
Interestingly, the judges they dealt with (all of whom were seen to be better judicial communicators) indicated that the self-represented litigants, when managed in this way, did not take more time than cases involving represented parties. It should be noted, however, that the sample was very small.
The research involved videoing hearings and interviewing the participants. Those videos were analysed by the researchers but some also formed the basis of training videos for judges. Judges reported that seeing the interviews of litigants explaining the impact of good and bad communication or being able to see other judges employ good communication cases was extremely helpful to them evolving their own practice. They recognised that they had things to learn about judging and they could learn from each other but also from the unrepresented litigants.