Justices approve new rule on pro se litigants

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Following several hours of debate, the Wisconsin Supreme Court voted Tuesday to add to its rules to clarify the role judges can take when dealing with pro se litigants.

A new rule will now permit judges to “make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”

It also will 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.

During the court’s rules conference Tuesday, the justices approved the new rule 6-1, with Justice Pat Roggensack as the only “no” vote. The rule will go into effect July 1.

During the conference, Roggensack said she thought the rule, as proposed, was too broad and would apply to far too many cases. She also said she was concerned judges would, as a result of the rule’s provisions, become advocates for self-represented litigants, instead of remaining a neutral party.

In an attempt to alleviate her concerns, the justices agreed to put a sentence in the rule that states “a judge may, but is not required, to exercise his or her discretion as the rule permits.”

Justice Annette Ziegler said the sentence fit in with the rule as a whole.

“I see this as a shield, not a sword,” Ziegler said, “and I think that makes it clear.”

The change was put forth by the Access to Justice Commission, which the court created in 2009 to help deal with the rising number of people who appear in court without an attorney. The commission’s petition for the new rule received nearly three dozen letters of support from judges, attorneys and domestic violence groups; all who said the change would give judges more leeway to help those who may not know the ins and outs of a proceeding.

During Tuesday’s discussion, the justices also agreed to devise a way to study how judges are using the new rule and if it helps. That idea came from concerns raised by Justice David Prosser about ways to ensure that the rule is working as intended. Follow @eheisigWLJ