BYU Law Review


This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, twoparty case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among judges, who find it difficult to both maintain stony silence and reach merits-based decisions in the twelve million cases involving unrepresented parties.

This Article contends that the adversary ideal is untenable in the lower civil courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that judges are left to improvise a solution. Indeed, it is now routine for judges to flout tradition and doctrine by concocting ad hoc and unregulated procedures that assist the unrepresented with fact development and issue creation. This Article argues that such efforts should be formalized and regularized through an affirmative duty on judges to develop the factual record in cases that arise in lower civil courts. In complex federal litigation, adversary norms have evolved, and the judicial role has been greatly enhanced to manage the unique pre- and post-trial needs of cases with numerous parties and high public impact. This Article argues for a parallel framework to enlarge the role of the judge in small, two-party civil cases. An affirmative duty may chafe against orthodox notions of the judge as a “passive arbiter,” but it would harmonize the disparate procedural practices already in use in the lower courts, and go a long way toward resurrecting the procedural values of accuracy, impartiality, party voice, and transparency in civil adjudication.


© 2016 Brigham Young University Law Review