Indiana Rule Amendment Could Cause Conflict with Traditional Case Law

On May 16, 2019, the Indiana Supreme Court amended its Judicial Conduct Rule 2.2, pertaining to impartiality and fairness, to allow Judges to make “reasonable efforts to facilitate self-represented litigants to be fairly heard.”

It is unclear whether the practical effect of this change will either cause direct conflict with traditional case law, which dictates that pro se litigants be held to the same standard as licensed attorneys and forbids a court to indulge in any presumptions on a pro se litigant’s behalf, or create rule waivers for pro se litigants.  Comments to the rule change indicate that the courts expect to defer to pro se litigants, while the rule itself requires that any benefits to pro se litigants be consistent with law and court rules. It is difficult to see how the two concepts can live harmoniously when the comments also outline a non-exhaustive list of possible actions for judges including directly deviating from rules of evidence to allow pro se litigants to engage in narrative testimony and changing the traditional order of taking evidence, among other things.

Although courts of equity, such as those overseeing foreclosure cases, are almost certainly the intended target of this rule change, we nonetheless don’t expect to see severe deviations in our judges’ procedures as a result of this rule change given the liberal procedures already employed by many of our judges in equitable cases.  Essentially, the rule may simply be validating what some judges are already doing when they see fit to do so.  Additionally, it is important to note that the rule change does not require judges to make any change to their processes, so those courts that were not already employing such measures may be unpersuaded to do so merely because of this rule change.