Utah Bar Journal

Professor Richard Zorza recently presented a CLE entitled “Self-Represented Litigation.” Professor Zorza called for judges to in essence remove the need for legal representation for poor litigants by operating in a mode of “engaged neutrality.” “Engaged neutrality,” as defined by Professor Zorza, means judges should be responsible to ensure all relevant facts are brought out in a case. The court would “engage the parties, as needed, to bring out these facts and their foundation.” The court would thus advise and remind pro se litigants regarding how to fill in the holes left by their presentation of their case, and even go so far as to engage in extensive examination of witnesses, laying foundations, and authenticating documents.

To me and most people I talked to after the presentation, it appeared “engaged neutrality” was simply another name for advocacy by the court. I did not think most Utah attorneys and other citizens would appreciate having to try their case not only against an unrepresented party but against the judge as well. While I can see directing pro se parties to the jury instruction web site, to the Tuesday Night Bar or to a court calendar where they might watch a trial, I can hardly see reminding them to offer testimony on a cause of action’s missing element they forgot to present during their case in chief. I suppose the odds might be evened by doing the same for the party represented by counsel, but doing so seems to move the court from a neutral fact finder role to an advocate and interferes with counsel’s tactics in presenting her or his case.

Rather than solving the unrepresented party problem by turning the court into a European inquisitor, I suggest another possible solution that assures these people have counsel using resources presently available. I am not proposing we provide representation to parties who do not trust attorneys and would not hire one regardless of their income, although they would benefit from “engaged neutrality.” Nor would my suggestion cover pro bono help for the ballet or symphony. I’m also not suggesting we go back to some of the mandatory pro bono models discussed in the last 25 or so years which carried a stigma of violating the 13th Amendment. Instead, I believe we have a resource not only here in our state but throughout the United States available to be tapped to provide low- and no-income deprived parties with top-notch representation.

The president of the American Bar Association pointed out last year that something on the order of 200,000 attorneys will reach retirement age in the next five years. I’m sure that figure includes several hundred Utah attorneys and this is just the front of the baby-boomer retirement phenomenon. Many of these attorneys will retire and, of course, many will continue working full or part time but not necessarily for economic reasons. Rather, like some senior private practitioners, public servants and law professors, they either simply want to keep busy and love the practice or some of their clients beg them to stay around for the security they provide.

These men and women because of their experience are some of the best attorneys in the State. They are public-minded and many would be willing to devote a morning or two per week to service. Most would probably be willing to step up, go to their office or some local equipped office space staffed by a secretary, and take pro bono cases. I understand there are IOLTA funds that could provide regional office space at a few locations around the state, staff help, and possibly professional liability premiums for pro bono work. Some protective professional liability legislation may also be enacted as a reward for their good deeds. Senior counsel may know retired legal assistants and secretaries willing to help on occasion. It may not be necessary for the Bar to hire a pro bono coordinator for them because they would enjoy forming a committee to handle administration themselves.

These attorneys know how to resolve disputes and could negotiate a number of resolutions short of trial. A substantial number may also be willing to appear in court with or file appeals for pro bono clients. My impression is most court cases encountered would not be lengthy affairs or involve deposition fees, transcripts and other high costs. Courts will grant in forma pauperis petitions and participating counsel could refer out fee-generating cases or keep them for their private practice. Implementation, publicity, and invitations to help with such a program would rest with our bar organizations as do current pro bono efforts.

Our senior attorneys are developing in numbers that provide an opportunity, finally, to solve the issue of people who cannot afford counsel. I hope to engage in such representation when I retire.