Local Experimentation and the Evolving Role of the Civil Judge

Jessica K. Steinberg, Associate Professor of Criminal Law and Director, Prisoner and Reentry Clinic, George Washington University Law School

Courts are being challenged by rising numbers of self-represented litigants, who are often not ready to present their cases. The District of Columbia’s Housing Conditions Court presents one possible model of what role judges can play to improve access to justice for such litigants.

The rise in self-represented parties creates a challenge for the 21st-century judge in the civil justice system. Recently, new guidance has begun to sanction judicial interventions in pro se cases as a necessary access-to-justice measure. Yet, even with the advent of rudimentary standards, full-fledged models of active judging are in short supply, and significant confusion exists regarding the scope of judicial authority to intervene when one or more parties struggles with case presentation. In a rare example of comprehensive judicial reform on a local civil docket, the District of Columbia’s experimental Housing Conditions Court has created a forum accessible to self-represented parties by radically changing the role of the judge. The District’s model offers an illustration of the power of local experimentation to test and broaden our maturing beliefs about the role the civil judge can and should play in the era of the pro se majority.

The adversarial contest, once managed by attorneys, has been displaced by a self-represented majority often unable to navigate the procedural or legal thicket of a courtroom. To address this sea change in the operation of the civil justice system, the traditional norms of judicial conduct have undergone significant reexamination in recent years. Of note, comment 4 was added to the impartiality canon of the Model Code of Judicial Conduct in 2007 to clarify that judges may “accommodate pro se parties to ensure their matters are fairly heard.” Additionally, the Supreme Court weighed in on modifications to the judicial role in Turner v. Rogers, 131 S. Ct. 2507 (2011), charging the court—and presumably the judge—with the responsibility to elicit information from pro se civil contemnors, and then to ask questions about the facts and evidence brought forward.  

These judicial conduct modifications reflect a growing consensus that judges may have an important role to play in advancing access to justice. The new Model Code provision has been adopted, and expanded upon, by nearly two-dozen states. In many jurisdictions, judges are now expressly authorized to explain foundational and evidentiary requirements, modify procedures, eliminate jargon, make referrals to legal-services providers, and ask “neutral questions” of the parties. And Turner, taking aim at the adversary maxim that an impartial judge must be passive, adds constitutional heft to the evolving ethical notion that a more active judicial role may be required to satisfy due process when lawyers are not available.

It is important to emphasize, however, that while Turner and the Model Code represent a shift in refashioning the judge as a pivotal access-to-justice actor, the guidance remains quite skeletal in nature. Unlike the Social Security benefits arena, where a robust, active judging standard has been honed through common law, virtually no appellate case law has built upon Turner or the Model Code to further explicate the proper bounds of judicial intervention in the trial courts. Judges face many unanswered questions about how “active” they are permitted to be in various settings. As one illustration, a judge in the Second Circuit recently recused himself from an employment-discrimination case, citing discomfort over questions he had asked the pro se plaintiff to determine whether his claim arose within the applicable statute of limitations.[1] Although this case arose in federal court, unreported analogues arise in the state courts regularly, with judges unsure which actions are constitutionally or ethically authorized and which constitute impermissible advocacy.   

Rather than rely on the appellate courts to add detail and nuance to our new judicial standards, the time is ripe for local courts to experiment with actionable judging models that can be refined, evaluated, and exported. Done properly, and coupled with evaluation, local experimentation can pilot new models of judging, consistent with the principles set forth in Turner and the Model Code, while simultaneously developing replicable models that can be adapted to other jurisdictions. Experimentation can address, at the granular level, the full range of issues that arise for pro se parties in developing the legal and factual content of their cases. As a further advantage, experimentation offers a “bottom-up” approach to judicial reform that can respond to the needs of local courts and local customs.

The District of Columbia has engaged in just this sort of local experimentation. In 2011 the District launched a specialized Housing Conditions Court (HCC) to adjudicate affirmative habitability claims. The judges who spearheaded the HCC refer to it as a “fix it” court that “gets repairs done” and built it to respond to the needs of self-represented parties. The central innovation of the court relates to its enhanced judicial role. Specifically, judges in the court take on three nontraditional functions: They question the parties on all issues, they investigate alleged housing conditions through a court-appointed inspector, and they hold sequential hearings until all substantiated housing-code violations are repaired. Moreover, judges apply these procedures to every action filed in the HCC, with very few matters disposed of through privately negotiated agreements.

Judicial fact gathering in the court concentrates on the range of issues raised by housing-conditions cases, including the nature of the violations alleged by the tenant, any reasons the landlord might have for not making repairs, and any conflicts that have arisen between the parties over the quality or timing of repairs. Judges are assisted in the fact-gathering endeavor by an excellent self-help pleading, of the type that Turner espouses, which elicits relevant information from tenants before they arrive in court. The form is written in lay language and performs the dual function of both advising parties of the legal elements, while also offering examples of several discrete factual assertions that might satisfy those elements. For example, the form directs tenants to be specific as to how they notified their landlord of the defective conditions: Was it by voicemail or in person? The form also lists all possible housing-code violations and invites tenants to check the boxes that correspond to substandard conditions in their unit.

Following an initial hearing, in which the tenant and landlord both answer questions from the judge, an independent housing inspector is dispatched to the tenant’s unit. The inspector is employed by the District of Columbia but assigned to the court for its exclusive use. In cases involving factual disagreements over the needed repairs, the inspector visits the premises, determines whether housing-code violations exist, and reports back to the judge in open court on the outcome of the investigation. Judges in the HCC grant substantial weight to the inspector’s findings, and may send the inspector back to the unit multiple times to resolve ongoing disputes about conditions. Indeed, the inspector serves as the judge’s primary fact-finding arm, relieving pro se parties of the burden to investigate and produce their own evidence.

In a final expression of the court’s nontraditional orientation, judges take an active role in enforcing the completion of repairs. In the HCC, cases are not closed at the moment that liability is determined. Instead, judges schedule hearings on a rolling basis, often at monthly intervals, to monitor the landlord’s repairs and to resolve any collateral issues that may be disrupting progress. Landlords who demonstrate good faith in making repairs are offered substantial leeway in the amount of time it takes to complete work, while those who repeatedly return to court without making a demonstrated effort at repairs may be sanctioned in the form of rent abatements or even daily fines. Judges in the HCC typically do not close a case until most repairs have been completed or until both parties stop appearing in court at their scheduled hearings—whichever comes first.

The District’s experiment pushes the principles developed by Turner and the Model Code into an actionable judging model. As is now authorized by the District of Columbia’s Code of Judicial Conduct, judges in the HCC modify procedures, ask questions, and speak in lay language. The HCC’s model also transcends the boundaries set forth by Turner and the Model Code by adding a neutral inspector to aid the judge in creating an accurate factual record and ensuring the enforcement of remedies. In these ways, the HCC both integrates current guidance and picks up where current guidance trails off to develop a judicial role more fully responsive to the legal and procedural needs presented by self-represented parties.

On evaluation, the HCC’s model has proven effective on several measures.[2] First, approximately two-thirds of tenant allegations are ultimately substantiated as valid by the inspector, dispelling the myth that a forum accessible to pro se parties may invite a rush of frivolous litigation. Second, of the housing-code violations substantiated by the inspector—the ones we might hope a court could help remedy—80 percent end up repaired. Finally, the HCC’s model appears to equalize access to an accurate outcome, with represented tenants achieving no better outcomes than those who lack counsel. While the average length of time to adjudicate a case in the HCC is not short—it takes nearly five months to achieve repairs—the figure does not seem out of line with other civil actions, particularly given the court’s management of both the liability and enforcement phases of litigation.

It is certainly possible to critique the District’s model. Although it was launched in 2011, and operates according to a regularized procedural framework, written rules for the court have yet to be adopted. In addition, parties are discouraged from generating or presenting their own evidence, which may negatively impact procedural justice in the court. Moreover, the court’s model places a significant time burden on parties, who must return to court again and again to either access or avoid the requested remedy. Finally, the HCC’s availability as a forum is restricted to tenants who seek repairs but not damages, and is then further restricted to those tenants who are not already being sued for eviction. Despite these shortcomings, however, the court has piloted a viable judicial model that responds to the vexing challenge of pro se litigation.

How can other courts replicate the HCC’s experiment and develop other alternative judging models to address the unique needs of self-represented parties? After all, judges may be justifiably concerned that the HCC’s model is not expressly authorized by either Turner or the Model Code provisions, or by any other formal set of guidance on judicial interactions with pro se parties. Although some forms of active judging have been endorsed both ethically and constitutionally, the line between allowable and prohibited judicial action is still quite blurry.

One option for courts seeking to design and implement experimental dockets is to leverage the “problem-solving” carve-out in the Model Code of Judicial Conduct. In its application section, the Model Code asserts that judges presiding over “problem-solving” courts are exempted from the strictures of the Model Code when “local rules specifically authorize [judicial] conduct not otherwise permitted.” While the Model Code specifically names drug courts as forums likely to regulate nontraditional judicial conduct by local rule, there is no language limiting local experimentation to the criminal arena. In fact, the problem-solving carve-out offers both an opportunity and a challenge to civil courts to reimagine judicial engagement with self-represented litigants and to experiment with models that might be effective. If evaluation were to be made a consistent feature of such courts, there could be tremendous opportunities to replicate and scale best practices.

[1] Floyd v. Cosi, Inc., 78 F.Supp.3d 558 (E.D.N.Y. 2015)

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.