In a recent article in the University of Richmond Law Review, Prof. Andrew Budzinski argues for change in evidentiary rules in pro se courts. The Advocate caught up with Prof. Budzinski to talk more about the background and intended impact of “Overhauling Rules of Evidence in Pro Se Courts.”


The Advocate: How do your findings move the needle in the practice of law?

Prof. Budzinski: Imagine playing a sport for the first time and not knowing the rules. Maybe you’ve seen it played on TV before or you know a term or two but not much else. As you play, the referee blows the whistle and calls you out for violations you didn’t even know you were committing. Whether you win or lose the game, at the end you’d probably be frustrated by an experience that felt chaotic and unfair. That’s the experience of many litigants in state courts who are asked to follow rules of evidence about which they know little if anything. The rules are complicated even for lawyers, and yet we expect pro se litigants to follow those same rules. The article is an effort to get courts, lawyers and legislators to evaluate how rules of evidence impact real people and to change them so that they’re simpler, fairer and require judges to do more work to explain how they work and apply to the case at hand. I map out a guideline for reforming evidentiary rules so that when people go to the courthouse to resolve some of the most important disputes in their lives – defending against eviction, resolving custody of children, obtaining protection against intimate partner violence and so on – they can understand the rules of the game and have faith that those rules are being fairly applied. This will increase both litigants’ access to meaningful justice and their belief that justice has been done for them.  

The Advocate: What inspired you to write this piece? How did it come about? 

Prof. Budzinski: I found myself in court, waiting for my case to be called, seeing unrepresented litigants trying – and struggling – to get relevant, helpful evidence in front of judges who were half-heartedly applying rules of evidence. Some judges would insist they needed to meet stringent rules of evidence to consider evidence, give litigants a really hard time and then admit the evidence anyway. Some would refuse to consider it. Some would let evidence in without explaining why. And the litigants themselves would become frustrated – rightly so – because their evidence was being admitted or denied based on rules they did not know.  

The Advocate: Talk about any intersections between what you discuss in the article and current events/issues in the legal/sociopolitical landscape. 

Prof. Budzinski: State courts hearing landlord/tenant, domestic violence, family law, consumer debt and small claims cases are primarily accessed by unrepresented litigants. Often, litigants in those case types do not have a lawyer because they cannot afford to hire one, and there are not enough pro bono lawyers to meet the demand. My article responds to that reality by asking the legal community to stop and recognize that the civil legal system was designed with the assumption that everyone will have a lawyer – and that assumption demonstrably does not bear true in today’s state courts. 

The Advocate: Is there anything else you’d like to say about this work?  

Prof. Budzinski: I hope the legal actors responsible for making rules will think before they rewrite the rules – that they will get community feedback, run studies on what their communities value and need and find ways to reform court rules to reflect those things. 

Article Abstract

Evidentiary rules need to change in pro se courts. The vast majority of trial-level determinations occur in state courts applying what is often a replica of the Federal Rules of Evidence with slight variations. These overly-complex rules of evidence – what Justice Jackson called a “grotesque structure” – assume the presence of counsel in trials and are designed for use by attorneys. That assumption does not bear out in pro se courts hearing family law, domestic violence, landlord-tenant, and small claims cases, where the vast majority of litigants are unrepresented. Existing codes of evidence in pro se courts have a negative impact on pro se litigants appearing in those courts, who typically struggle to understand and apply the rules of evidence. This has a concrete impact on case outcomes, on consistency among coordinated courts, on substantive rights and on litigants’ belief in a fair civil legal system. 
I view this problem through the dual lenses of procedural justice and access to justice. Specifically, I argue that rules of evidence – and, indeed, all rules of procedure governing proceedings in pro se courts – should work not only to promote efficiency and accuracy but also to enhance litigants’ subjective experience of justice. An overview of the goals animating the rules of evidence shows that those goals are not met by the rules in their current form. I argue that well-intentioned legal principles, meant to ensure procedural fairness and veracity of the factual record, must be applied in the particular context of primarily pro se dockets. 
In this article, I call for an overhaul of evidentiary rules in pro se courts. Rulemakers must evaluate how to simplify evidentiary standards, expand the role of judges in explaining and administering evidentiary policy, and keep at the forefront the goal of achieving fair and just outcomes. In sum, I argue that relaxing evidentiary rules will encourage the consideration of more reliable evidence, increase litigant satisfaction in the fairness of the legal process, and, thereby, increase access to justice for pro se folks. 

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