How much assistance may a judge provide a pro se plaintiff? Judge Jack Weinstein and Judge Richard Posner seem to favor the interventionist approach.
Judge Weinstein was “required” to intervene on behalf of the pro se plaintiff in Floyd v. Cosi, Inc., No. 14-CV-3772, 2015 WL 148458 (E.D. N.Y. Jan. 12, 2015). His intervention took the form of a series of leading questions put to the plaintiff at a hearing on defendant’s motion for summary judgment. The plaintiff’s answers established that his Title VII employment discrimination claims were not time-barred. After denying the summary judgment motion, Judge Weinstein recused himself, not because he appeared partial at the hearing, but because remaining on the case “could create” an appearance of partiality. He explained that if plaintiff continued pro se, “the court would probably be forced to intervene, and, in effect, advocate on his behalf, possibly prejudicing the defendant’s case.”
In Rowe v. Gibson, Judge Posner used information from a drug manufacture’s website and the Mayo Clinic’s website to discredit a prison doctor’s affidavit upon which the district court relied in granted the doctor’s summary judgment motion. Unlike Judge Weinstein, Judge Posner did not admit that he intervened on behalf of the pro se plaintiff, but that is exactly what he did. Judge Posner emphasized that the playing field was not level because the plaintiff had no access to “offsetting evidence” and the adversary process works best when there is parity in adversaries. Judger Posner simply helped achieve that parity. Judge Posner also bolstered plaintiff’s case by characterizing the evidence of the “deliberate indifference” to the plaintiff’s medical condition as “substantial” and branding the prison officials’ acts as “heartless” and “senseless.”
Contrary to the interventionist approach of Judges Posner and Weinstein, Rule 2.2 of the ABA Model Code of Judicial Conduct only permits “reasonable accommodations” to ensure fair hearings for pro se litigants. States adopting the ABA approach generally limit judicial assistance to explaining procedures and asking “neutral questions” of parties and witnesses. See, e.g., Wis. SCR 60.04(1)(hm) cmt. The non-intervention approach of the ABA also prohibits judges from independently investigating facts including gathering information from “electronic” sources. ABA Model Code of Judicial Conduct Rule 2.9(C) cmt 6.
So, should judges take the interventionist approach or the ABA approach when attempting to maintain an appearance of impartiality while doing justice in pro se cases? The answer is simple — whichever approach builds public confidence in the judiciary. The hard part is determining which approach best serves that goal.