By Liliana Yearns, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
Are state judges successfully stepping into new roles as active participants in pro se litigation? If not, how can courts support judges in adopting this role?
First, some background about why a new, more active (not activist, but active) role is so necessary. Roughly 76% of cases in state civil courts involve at least one self-represented party, enough said. As such, over the past two decades, legal scholars have advanced a revised judicial role known as active judging, which encourages judges to offer accommodations and assistance to pro se litigants. Asking courts rather than litigants to adapt to the “pro se crisis” appears promising, but several obstacles may limit the model’s ability to increase access to justice.
What is active judging?
Active judges facilitate pro se litigation along three principal dimensions: (1) adjusting procedures, (2) explaining governing laws and court processes, and (3) eliciting relevant information.
First, adjusting procedures involves relaxing formalistic requirements in discovery and evidentiary presentation. For example, Anna Carpenter, in Active Judging and Access to Justice, interviewed twelve unemployment judges and found that eleven abandoned a rule requiring litigants to submit documents and witness lists three days before their hearings. Instead, these judges adopted a principle-based approach that admitted untimely evidence so long as it did not prejudice the opposing party.
Second, explaining law and process means judges may begin hearings by explaining what the hearing addresses, what legal issues matter, and what kinds of evidence are relevant. Courts may also develop standardized checklists to ensure judges address key legal elements and common defenses.
The third dimension of active judging—eliciting information—allows judges to ask litigants factual questions necessary to decide the case. This practice is common in civil law jurisdictions and is one aspect of a system that (mostly in the criminal context) goes by the moniker inquisitorial judging.
In the United States, active judging has grown in popularity over the past two decades. In 2010, the ABA modified the Model Code of Judicial Conduct to permit the practice, and most states have likewise clarified that providing “reasonable accommodations” to pro se litigants does not violate judicial impartiality. Eleven states encourage, and 29 states permit, active judging. Scholars such as Richard Zorza have also developed guidance on active judging best practices.
Despite these developments, judicial discretion still shapes active judging more than formal doctrine. This limited jurisprudential development leaves judges with substantial discretion, a salient concern in state courts, where written decisions and appeals are relatively rare. Jurists such as Hon. Robert Bacharach have acknowledged these shortcomings, arguing that active judging may force a tradeoff between strict procedural enforcement, which can defeat otherwise meritorious claims, and leniency, which risks bias and uneven application of rules.
How does active judging work in practice?
Due to the decentralized nature of reforms in pro se litigation, scholars know relatively little about how judges implement active judging in practice. Anna Carpenter addressed this gap in her 2022 paper Judges in Lawyerless Courts.
To understand how judges behave, Carpenter observed hearings for protective order petitions, where the substantive law governing proceedings is relatively consistent across jurisdictions. Protective order proceedings are also representative of many state civil court matters. They typically involve pro se litigants, produce few appeals, and generate large dockets.
Carpenter analyzed more than 200 hours of courtroom observations and 357 transcripts from protective order hearings across three state civil courts. She also interviewed presiding judges to evaluate when and how they extended “reasonable accommodations” to unrepresented parties. Carpenter expected judicial behavior to vary because the jurisdictions differed along several structural and demographic dimensions. The jurisdictions had different racial, class, and political compositions. Two jurisdictions elected judges, while the third appointed them. Judicial ethics rules also varied across the courts, with one encouraging active judging and the others adopting a permissive approach.
Carpenter selected the courts because they ranked differently on the Justice Index, which measures the extent to which state courts adopt access to justice reforms. The Index considers factors such as attorney access, self-help resources, and language and disability accommodations. One of the jurisdictions, which Carpenter named “Centerville” to retain anonymity, is thought to be a national leader in access to justice reform and ranked in the top ten percent of jurisdictions on the Justice Index. “Townville” ranked above the median, and “Plainville” fell near the median.
Despite these structural differences, Carpenter found little variation in judicial behavior. Across all three jurisdictions, judges (1) maintained legal and procedural complexity and (2) tightly controlled evidence presentation.
Regarding procedural complexity, judges frequently used legal jargon without explanation. Some delivered opening speeches to large dockets to summarize the day’s proceedings, but these explanations often relied heavily on technical language. Judges also rarely repeated their explanations when additional litigants arrived later in the docket. When litigants asked about procedures or legal issues, judges often continued using complex terminology or declined to explain. As a result, many pro se litigants struggled to object to evidence or present affirmative defenses. The second goal of active judging—explaining governing law and process—therefore appeared largely unmet.
Carpenter also found that judges constrained evidence presentation. In protective order proceedings, petitioners typically presented claims through pleadings, while defendants lacked standardized forms and instead relied on live testimony. Judges asked defendants a few open-ended questions, sometimes referencing facts from the petition, and allowed brief responses before curtailing testimony. This structure diverged from the active judging movement’s goal of eliciting relevant information through targeted questioning.
Why did the practice fall short?
Why did judges across diverse jurisdictions maintain complexity and constrain evidence presentation instead of pursuing active judging?
Carpenter pointed to the civil justice system’s longstanding preference for adversarial and highly procedural contests. In this environment, unclear ethical and legal boundaries may encourage judges to revert to familiar passive roles. Heavy dockets and pressure to resolve cases quickly likely reinforce this tendency.
Carpenter also argued that asymmetrical case development contributed to the observed reluctance to accept narrative testimony. Although usually unrepresented, petitioners often received significant pre-hearing assistance from nonprofits and courts. At the time of Carpenter’s study, none of the observed jurisdictions provided standardized forms or court-based assistance for defendants. As a result, judges relied on petitioners’ pleadings to shape how they managed evidence presentation. Rather than allowing narrative testimony or asking leading, legally relevant questions to defendants, judges instead prioritized efficiency using the facts they already had. This reluctance to permit more robust testimony limited defendants’ ability to present facts during the only stage of the proceeding in which they had full opportunity to do so.
Where do we go from here?
Carpenter’s findings suggest several potential reforms.
In the courtroom: Active judging may function more effectively when supported by formal doctrine and consistent implementation. Courts could also expand this model of engagement into earlier and less time-pressured stages of litigation, including pre-hearing filings, settlement discussions, and preparation of evidence. Scholars like Andrew Hammond have advocated for similar procedural adjustments in the federal context.
More broadly, states may need to rethink the role of state civil courts. Benjamin Barton’s proposal in Against Civil Gideon (and for Pro Se Court Reform) suggests that court systems, not just individual judges, must adapt to the changing landscape of civil litigation. Reforms could include simplifying procedures and pleadings, standardizing pretrial forms, guiding court filings, expanding staff assistance, and deploying technological tools to reduce the burden on judges.
Outside the courtroom: Judicial reform is also possible outside of the courtroom. The large volume of cases that hinders effective judging indicates that states should consider which problems belong in courtrooms versus which should resolve through upstream solutions. Civil courts adjudicate some of society’s largest problems (child welfare matters, housing disputes), but maybe they shouldn’t. Rather than expending resources on representing pro se litigants, states should invest in extrajudicial programs such as mediation and community processes.
Although the movement toward active judging poses new challenges for state courts, it also supports broader structural reforms aimed at improving access to justice. Encouraging factfinders to pursue accurate legal outcomes rather than passively evaluate litigants’ presentations may play an important role in addressing the pro se crisis.
If you’re interested in more on this topic, listen to our podcast episode.