The Rule 54(b) Balance With Knapp: Why Complexity In “Our Rules” And Colorado’s Code of Judicial Conduct Require Our Courts To Be A Surrogate For Pro Se Litigants

Patricia M. Martin[1]

In 1953, the Colorado Supreme Court rendered its decision in Knapp v. Fleming[2] thereby creating staris decisis on the issue of how our Colorado court judges should treat pro se litigants: “[A] litigant is permitted to present his own case, but, in so doing, should be restricted to the same rules of evidence and procedure as is required.”  Plaintiff Knapp’s pro se action to recover a $250 judgment, plus interest, against Defendant, was reversed and dismissed over Defendant’s motion.  Knapp subsequently filed a Writ of Error,[3] also pro se, in Colorado Supreme Court.  The court dismissed his case on finding that Knapp had failed to “comply with our rules.”[4]  In essence, because Knapp did not understand “our rules,” his case was dismissed.  Shortly after Knapp was decided, Viles v. Scofield,[5] citing Knapp, stated “[I]t appears from the record, that plaintiff is acting here, and acted in the court below, as his own attorney,” and further stated, “[o]therwise, ignorance is unjustly rewarded.”

Three years after Knapp, on June 26, 1956, the U.S. Supreme Court decided two cases, Sears, Roebuck & Co. v. Mackey et al.[6] and Cold Metal Process Co. v. United Engineering & Foundry Co..[7] Both were cases of first impression to interpret the newly amended 28 U.S.C. § 1291 and Rule 54(b) of the Federal Rules of Civil Procedure.[8]  The amended Rule created in 1946 resulted because “parties did not know their rights” under the original rule.[9]  

54(b), as amended, reads as follows:

Judgment upon Multiple Claims or Involving Multiple Parties.  When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.[10]

In Sears, Roebuck & Co, the Court’s analysis demonstrates with legal precision, the high degree of difficulty, even for highly trained legal minds, to interpret through analysis what is exactly the meaning for judicial application of the newly amended Rule 54(b), particularly when juxtaposed with how the same facts in Sears, Roebuck & Co. would have resulted differently under the requirements of the “original Rule 54(b), of the Federal rules of Civil Procedure, as adopted in 1939.”  The Court states the requirements, “are not met, because the District Court, under the Rule as amended in 1946 . . .  cannot, in the exercise of its discretion, treat as ‘final’ a decision which is not ‘final.’”[11]  For the first time, the complexities for our courts to interpret and apply the new 54(b) Rule, as amended, under two different sets of facts was put to the test.

Because in Sears, Roebuck & Co, the Court brings focus and clarity for our judiciary so that they may better understand how to comply with this Rule’s express limits on their exercise of discretion, to require they make certain final judgments that express as “final” and express “no just reason for delay,” nothing less will suffice to satisfy the intent stated, “[B]ecause of the importance of the issue in determining appellant jurisdiction”[12], and that “[A] party adversely affected by a final decision thus knows that his time for appeal will not run against him until this certification has been made.”[13] By this language, the Court in Sears, Roebuck & Co., recognized that the parties should know with certainty their ultimate rights, in reliance that our courts understand and comply with the rules themselves, as our courts are always in a far better position than the parties, to ensure that the rules are satisfied.  As such, the Court has implicitly created a surrogate relationship between the judiciary and the parties, to ensure compliance with “our rules,” like Federal Rule of Civil Procedure 54(b), and Colorado Rule of Civil Procedure 54(b),[14] because rules change to better accommodate the needs of the parties and to reflect how those changing needs and rights must be protected under the law, for both represented and pro se litigants.  As such, all parties are better able to rely on the legal skill and training of our judiciary, who are charged to understand the rules themselves, if they must prevent a result where “the parties did not know their ultimate rights.”[15]

Since Sears Roebuck & Co., and its progeny, the federal and state courts have adopted different applications of Federal Rule of Civil Procedure 54(b), in the degree to which they will allow parties some forgiveness to determine when appellate jurisdiction ripens. For example, while the Court in Oak Construction Co. v. Huron Cement Co., ruled no Rule 54(b) certification was entered before appellate court’s decision, “[t]his lack of jurisdiction cannot be cured now by a belated Rule 54(b) certification.”[16], in Lewis v. B.F. Goodrich Co.,[17] our Tenth Circuit court overruled its decision in A.O. Smith Corp. v. Sims Consolidated, Ltd.[18] to follow “circuits that take a more forgiving attitude toward premature notices of appeal.”[19]   

In Colorado, Harding Glass Inc.,[20] wherein the court citing Sears, Roebuck & Co.,[21] and its progeny, acknowledges its use of case law interpreting the federal rule as persuasive to interpret Colorado Rule of Civil Procedure 54(b),[22] to the extent that other federal case laws, like Lewis, is persuasive for our judiciary to have “forgiveness” and to give some degree of deference to parties in determining their compliance with all “our rules.” It stands to reason that some degree of forgiveness is also necessary whenever our courts are faced with pro se litigants given their inherent lack legal expertise to not always know how to be in absolute compliance with the rules.  Such deference, or forgiveness, operates as a surrogate substitute to the extent that forgiveness extended to a pro se litigant cannot be left up to the discretion of any single judiciary.[23]  Instead, in cases that involve pro se litigants, in order for our court’s to interpret Colorado Rule of Civil Procedure 54(b), or any other rule, consistently with Knapp, a balance must be struck somewhere between the harsh result in Knapp and the rule in Sears Roebuck & Co., because Sears Roebuck & Co.  requires and instructs our courts to apply “our rules” to ensure that the parties know, with certainty, their ultimate rights, including, but not limited to, when a judgment is ripe for appeal.[24]   

In Harding Glass Inc.,[25] the court cites Colorado case law that have cited federal circuit cases and U.S. Supreme Court cases for interpreting the Rule, as persuasive, to state, [T]he definition claim for relief for purposes of Rule 54(b) has proved elusive . . . .”  As in many federal cases, such as Lewis v. B.F. Goodrich Co.[26] and Day v. NLO Inc.; NL Industries Inc.,[27] our courts should also be persuaded and likewise guided when applying this Rule, or any other procedural rule, according to Wright Miller & Kane[28] that reads, in pertinent part, “to strike a balance . . .  at a time that best serves the needs of the litigants.”[29]  In Day, the court further states, “[W]hen the issues are complex . . . we need the full picture before us . . . .” [30]

In 1993, Loomis v Seely,[31] the court further states, “[A] judge may not become a surrogate attorney for a pro se litigant.” To give proper consideration of the Loomis disposition, it should also be recognized where some federal courts, such as in Repass v. Vreeland,[32] the court has described determining the application of Rule 54(b) as a process of “problems” that “has plagued the Federal courts since the adoption of the Federal Rules.”[33]  Accordingly, if it is this hard for our courts to understand, then so long as the application of any procedural rule in Colorado is to be strictly applied under Knapp and its progeny, regardless of the needs of the parties, then this accompanying harsh and unforgiving outcome applied by our courts, is consequently irrespective of circumstances or complexities inherent in the application of “our rules”, to both the parties and the judiciary.  Therefore, whenever imbalance results, it cannot be deemed proper “at a time that best serves the litigants.”[34]

On a closer look at the  factors balance under Colorado Rule of Civil Procedure 54(b), it could reasonably be argued that a plaintiff pro se, like Knapp, cannot and should not be faulted by the judiciary for doing that which many judges with legal training and attorneys, also fail to do, comply with “our rules.”   Indeed, this result underscores the legal basis for considering jurisdiction for appellate review, to determine who did or did not comply with our rules and to explain why.   Today, perhaps the larger issue for our courts to consider and determine when faced with increasing numbers of pro se litigants is whether a balance has been struck “at a time that best serves the litigants”,[35] in order to ensure that pro se litigants ultimately understand their rights, particularly where rules like Rule 54(b), are likely misunderstood by pro se litigants, and it’s unreasonable to require they have fully complied with the rules, absent assistance from the judiciary.   

In Colorado, in order to adequately address this issue, we must return to the rule in Knapp, and ultimately reckon with its harsh result by some other means available, our judiciary cannons, and Congress.[36]  In Knapp, although the court’s decision was final, as single claim, not multiple parties, to not require Rule 54(b) certification, and under common law Writ of Error, nevertheless, the court’s expressed findings with regard to Plaintiff being pro se, appear to be irrespective of Knapp’s apparent needs as a party pro se litigant, where the court stated, “[p]laintiff is acting here, and acted in the court below, as his own attorney.”[37]   By the court’s characterization of Knapp, as a litigant “acting as an attorney” rather than as a pro se litigant, who is acting for one’s self,[38] the court seems to reason that because Knapp was trying to represent himself, pro se, he is either acting, as in a dramatic role, as an attorney, rather poorly, or he is really acting as an attorney.[39]   Clearly, from the court’s description of Knapp’s brief,[40] cited below, it was apparent that Knapp did not possess sufficient legal ability to “act as his own attorney.”   Also, apparently cutting against Knapp’s interests, the Knapp decision states that because Knapp’s brief “question[ed] the [the trial judge’s] ability and integrity,” it did not comply with the rule for a concise statement.[41]  Although Knapp’s brief is an attempt to communicate a judicial complaint, instead his brief is adversely interpreted by other judges as “invectives,” “vituperations,” and “derogatory remarks.”[42]  Unfortunately, since all those portions of Knapp’s brief regarding the trial court judge’s conduct were stricken by the court, all that remained of Knapp’s complaint is the court’s own impressions, that at best, are not objective.[43] Instead of referring Knapp’s complaints to an objective judicial committee for review, the court was highly insulted.[44] 

In October 1999, forty-six years after Knapp, in response to Colorado Executive Order B-011-99, a statewide taskforce was created to help reform Colorado’s civil legal justice system.[45] The Order states, “[T]his rise in pro se litigation imposes additional costs on Colorado’s court systems as parties who have not been formally trained in the law seek to resolve their disputes in a forum that historically has been the nearly exclusive province of lawyers.”   One mission of the Order is to “determine how the increase in unrepresented parties in lawsuits affects the operation of Colorado civil courts and their ability to render justice.”[46]  In calendar year 2010, of the total 541,591 cases filed in Colorado county courts, 13,000 were for domestic abuse/protection order and protection order.  Of this total, 89% of the cases had at least one party representing themselves, pro se.[47]   Of those 13,000 case, 11,593 cases were filed wherein both parties were pro se litigants, unrepresented by attorneys.[48]  In district court, of the total 722 cases appealed from county court, 174 cases, or 37%, were filed by pro se litigants.[49]  In the Colorado Court of Appeals, in fiscal year 2010, 787 cases were dismissed on procedural grounds, including Rule 54(b) dismissals.  Of the 320 cases in the Civil, Domestic Relations, Agency and Other category, 54(b) dismissals resulted in cases filed by both pro se litigants and litigants represented by attorneys.  In those cases ultimately dismissed under Rule 54(b), the court had first issued Orders To Show Cause that gave pro se and represented litigants fourteen days to cure violations resulting from lack of jurisdiction due to no final orders issued by the trial court.  In all those cases, the parties were not able to cure in time to preserve their appeals, and their cases were ultimately dismissed.[50]

For Colorado’s judiciary, the increasing numbers of pro se litigants who appear before them expecting a just remedy has apparently created tension between the need to apply the rule in Knapp and its progeny,[51] when juxtaposed against the paradigm “Equal Justice Under The Law” and Colorado Code of Judicial Conduct, specifically Rule 2.6, Ensuring The Right to Be Heard.  In a Memorandum, dated August 8, 2009, from Judge Dan Taubman, to Appellate Practice Subcommittee, regarding “Proposed Comment to Rule 2.6 of Code of Judicial Conduct,”[52] Judge Taubman and Members of the Colorado Access to Justice Commission appear to be grappling with how the rule in Knapp and its progeny so that the law squares with Rule 2.6 of the Judicial Canon, Ensuring the Right to Be Heard and Comment 2,[53] wherein the Cannon states, but not limited to, permissible steps of the judiciary intended for self-represented litigants, modifying traditional order for evidence, explaining rules, and making legal concepts understandable [to the pro se litigant parties].[54]  The Proposed comment 2 to Rule 2.6, reads as follows:

Notwithstanding Colorado case law to the contrary, the steps that are permissible in ensuring a self-represented litigant’s right to be heard according to law include but are not limited to liberally construing pleadings; providing brief information about the proceeding and evidentiary and foundational requirements; modifying the traditional order of taking evidence; using plain English rather than legal jargon; explaining the basis for ruling; and making referrals to any resources available to assist the litigant in preparation of the case. (Emphasis added).[55]

To date, while the proposed revisions of comment 2 to Rule 2.6 of Code of Judicial Canon, Ensuring the Right to Be Heard, has not been adopted by the Colorado Supreme Court, the paradigm, “Equal Justice Under The Law” is an essential part of a free slide show presentation of the award winning “Our Courts” program, a joint activity of the Colorado Judicial Institute and the Colorado Bar Association.[56]  According to the Colorado Access to Justice Commission Accomplishments 2003-2009,[57] as a result of ten hearings conducted by the Access to Justice Commission, the Commission concluded that “Colorado faces a serious crisis in legal representation of the indigent.  The Commission reported one CLS attorney for every 16,890 eligible individuals, and Colorado’s civil legal services appropriated $500,000 for victims of family violence,[58] that calculates to about $1 for every person eligible for CLS attorney services. While former Supreme Court Justice, Sandra Day O’Connor’s letter to The Honorable Marsha S. Kreiger, dated August 8, 2008, extends commendations to Our Courts for its “remarkable success” in Colorado,[59] what remains clear from these numbers is this:  the needs of our state’s ever increasing pro se litigants, like Knapp, who turn to our courts and the judiciary seeking justice, must be adequately heard in their own voice, with assistance from our judiciary, if “Equal Justice Under the Law” is to be achieved. 

 


[1] The author, Patricia M. Martin, is a share-holder in the private law firm, Patricia M. Martin, Attorney At Law, P.C., and is currently licensed to practice law in Colorado, New Mexico, the District of Columbia, the U.S. District Court, Colorado, the U.S. District Court, New Mexico, and the U.S. Court of Appeals for the 10th Circuit. Ms. Martin is a 2005 graduate of the University of Denver Sturm College of Law, former Law Clerk for the New Mexico Supreme Court, and a member of the Colorado Bar Association, State Bar of New Mexico, and the District of Columbia Bar.  At a January 2011, Rhone-Brackett Inn of Court Meeting, Ms. Martin listened to Colorado Court of Appeals Judge Steven Bernard present Our Courts.  This program’s statistics showing the numbers of cases filed in Colorado courts, as also cited in this article, and the complexity of applying Colorado Rule of Civil Procedure 54(b) final certification for appeal, inspired Ms. Martin to research and write this article for University of Denver Law Review Online. The author wishes to thank Matthew Broderick, University of Denver Law Review, for his diligent research assistance for this article.  Any errors or mistakes of judgment are the author’s alone.

[2]Knapp v. Fleming, 258 P.2d 489 (Colo. 1953).

[3] See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431 (1956) (stating the common law Writ of Error procedures “[b]efore the adoption of the Federal Rules of Procedure in 1939, where ‘such situations generally regarded as leaving the appellate courts without jurisdiction of an attempted appeal.’”).

[4] Knapp, 258 P.2d at 490.

[5] 261 P.2d 148, 149 (1953).

[6] 351 U.S. 427 (1956).

[7] 351 U.S. 445 (1956).

[8] See 28 U.S.C. § 2072. Pursuant to the Rules Enabling Act of 1934, the United States federal court system adopted standardized Federal Rules of Civil Procedure on September 16, 1938, which unified law and equity and replaced common law and code pleading with a uniform system of modern notice pleading in all federal courts; “[T]he historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute. Fed. R. Civ. P. 54. ‘Unfortunately, this was not always understood, and some confusion ensued.  In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question. . . . [y]et there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant. It hardly seems a case where multiplicity of precedents will tend to remove the problem from debate.’” Id.  

[9] See Fed. R. Civ. P. 54 advisory committee’s notes on 1946 Amendment.

[10] Fed. R. Civ. P. 54(b).

[11]351 U.S. at 427, 434, 435–436.

[12] Id. at 428 (emphasis added).

[13] Id. at 435–436.

[14] See Harding Glass Inc. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982).

[15] Sears, Roebuck & Co., 351 U.S. at 431, 897, 1304 (stating “[A] common law, a writ of error did not lie to review a judgment that failed to adjudicate every cause of action in the controversy,”  applying F.R.C.P. 54(b)); see also Sears, Roebuck & Co., 351 U.S. at 446, 905, 1315 (The Court applied its first decision in Sears, Roebuck & Co., to determine a different set of facts in Sears, Robuck & Co., where the decision involved adjudicated and unadjudicated counter claims arising from the same transaction or occurrence to arrive at the same result.); see also Fed. R. Civ. P. 54 advisory committee’s notes.

[16] 475 F.2d 1220, 1221 (6th Cir. 1973) (per curiam).

[17] 850 F.2d 641, (10th 1988).

[18] 647 F.2d 118, 120–21 (10th Cir. 1981). Lewis v. B.F. Goodrich Co., 850 F.2d 641, 644 (1988) (citing Fed. R. App. P. 34(a); 10th Cir. R. 34.1.8(c) and 27.1.2.  stating, “[t]he Parties were afforded an opportunity for additional brief before the en banc court.”).

[19] Id. (stating disagreement with the rationale in A.O. Smith, that “[a]llowing appeals where appellant had not secured a 54(b) would lead to a large number of cases being filed in a pending category and to confusion and delay”).  

[20] Harding Glass Inc., 640 P.2d at 1125 (“[B]ecause  [Colorado Rule of Civil Procedure] 54(b), is identical to [Federal Rule of Civil Procedure] 54(b), except for two insignificant differenced in punctuation , case law interpreting the federal rule is persuasive in analysis of the Colorado rule.”).

[21] Id.

[22]See e.g., id. (citing Moore & Co. v. Triangle Constr. & Dev. Co., 619 P.2d 80 (Colo. App.1980); Backus Playwood  Corp. v. Commercial Decal, Inc., 317 F.2d Cir. (1963), cert. denied, 375 U.S. 879 (1963); Flynn & Emrich Co. v. Greenwood, 242 F.2d 737 (4th Cir. 1957); Ball Corp. v. Loran,  596 P.2d 412, 413 (Colo. App. 1979); Int’l Controls Corp. v. Vesco, 535 F.2d 742 (2nd Cir. 1976); W. Geophysical Co. of Am., Inc. v. Bolt Assoc., Inc., 463 F.2d 101 (2nd Cir. 1972); Trans Cent. Airlines, Inc. v. Peter J. McBreen & Assoc., Inc., 497 P.2d 1033 (Colo. App. 1972)).

[23] B.F. Goodrich Co., 850 F.2d at 644; cf. Knapp, 258 P.2d at 490.

[24] Harding Glass Inc., 640 P.2d at 1125; see also B.F. Goodrich Co., 850 F.2d at 642.

[25] Harding Glass Inc., 640 P.2d at 1125.   

[26] 850 F.2d.641 (1988).

[27] 3 F.3d 153, 155 (1993).

[28] Wright Miller & Kane, Federal Practice and Procedure, Civil 2d § 2654 (1983).

[29] Day v. NLO Inc., 3 F.3d 153, 155 (6th Cir. 1993).

[30] Id. at 155.

[31] 677 P.2d 400 (1983) (citing Viles v. Scofield, 261 P.2d 148 (1953)).

[32] 57 F.2d 801 (3rd Cir. 1966).

[33] Repass v. Vreeland, 357 F.2d 801, 805 (3rd Cir. 1966).

[34] Day, 3F.3d at 155 (stating “Rule 54(b) is intended to strike a balance.”) (citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2654 (2d ed. 1983)).

[35] Id.

[36]See Colo. Code of Judicial Conduct R. 2.6 (2010)  (“Ensuring the Right to Be Heard”); see H.R. Res. 4115, 111th Cong. (2009) (enacted) (“A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.”); S. Res. 1504, 111th Cong. (2009) (“Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).”) (Emphasis added).

[37] Knapp, 258 P.2d at 489.

[38] Id.; see Black’s Law Dictionary (4th ed. 2009) (The definition of Pro Se is “to proceed for himself; in his own behalf; in person.”).

[39] Cf. BLACK’S Law Dictionary (4th ed. 2009) (defining an Attorney as “a legal agent”).

[40] Id., stating “Plaintiff's brief is scurrilous, containing frequent invectives and vituperations, together with derogatory remarks concerning the trial judge and questioning the latter's ability and integrity.”

[41] Knapp, 258 P.2d at 489.

[42] Id.

[43] Id.

[44] Id.

[45] Colorado Executive Order B-011-99 § 1 (Oct. 6, 1999) (the “Order”), available at http://www.state.co.us/cjrtf/exe/EOB01199.htm (stating, “[J]ustice delayed is justice denied. . . . .  Consequently, a growing number of Colorado’s citizens are seeking to resolve their private disputes in less costly and time-consuming ways. This trend has led to several unexpected effects.  First, a growing number of citizens are choosing to represent themselves in court instead of retaining attorneys to do so. This rise in pro se litigation imposes additional costs on Colorado’s court systems as parties who have not been formally trained in the law seek to resolve their disputes in a forum that historically has been the nearly exclusive province of lawyers).

[46] Id. at § 2.d.

[47] State Court Administrator’s Office, Cases Filed Statewide; Calendar Year 2010, Report Preparer, Jessica Tender (on file with the author).

[48] Id.

[49] Id.

[50] E-mail from Christopher Ryan, Clerk, Court of Appeals, to Patricia Martin (Mar. 29, 2011) (showing 787 dismissals in FY 2010; upon the author’s review of the Court of Appeals data case management systems, showing the cases dismissed under Colo. R. Civ. Pro. 54(b), from the Court Clerk’s case list provided by the Clerk to the author, showing all cases dismissed in the Civil, Domestic Relations, Agency and Other categories) (on file with the author).

[51]See generally Knapp,  258 P.2d 489 (requiring a pro se to comply with the rules of evidence and procedure has been applied in Cornelius v. River Ridge Ranch Landowners Assn., 202 P.3d 564, 572 (Colo. 2009); Manka v. Martin, 614 P.2d 875, 879 (Colo. 1980); Negron v. Golder, 111 P.3d 538, 541 (Colo. App. 2005); Prefer v. Pharmnetrx, LLC, 18 P.3d 844, 850 (Colo. App. 2000); In re Marriage of Snyder, 701 P.2d 153, 155 (Colo. App. 1985)).

[52] Memorandum from J. Dan Taubman to Appellate Practice Subcomm. Re. Proposed Comment to Rule 2.6 of Code of Judicial Conduct (Aug. 18, 2009) (on file with the author)..

[53] Colo. Code of Judicial Conduct R. 2.6 cmt. 2 (2010) (“The steps that are permissible in ensuring a self-represented litigant’s right to be heard according to the law include but are not limited to liberally construing pleadings; providing brief information about the proceeding and evidentiary and foundational requirements; modifying the traditional order of taking evidence; attempting to make legal concepts understandable; explaining the basis for ruling; and making referrals to any resources available to assist the litigant in preparation of the case.  Self-representation litigants are still required to comply with the same substantive law and procedural requires as represented litigants”) (Emphasis added).

[54] Statement In Support Of Proposed Comment 2 To Rule 2.6 Of Changes To Colorado Code of Judicial Conduct, Angela Arkin, District Judge, 18th Judicial District, Gale Miller, Court of Appeals,  Simon Mole, Magistrate, 17th Judicial District,  Betty Strobel, District Judge, 19th Judicial District, In Statement in Support the J. Taubman Memo, stating “[I}n the long run, the issue of unrepresented litigants requires a comprehensive approach, which would include revision of procedural rules, development of forms and manuals, and training of trial judges and magistrates.”  [S]elf-represented parties simply do not think to testify about having lived in Colorado for over 90 days before filing, and they may think it self-evident that the marriage is irretrievably broken., (citing Rebecca Albrecht, et al., Judicial Techniques for Cases Involving Self‐Represented Litigants, 42 ABA Judges Journal 16 (Winter 2003), “ In one Florida case, a woman left the courtroom in tears after the judge declined to grant a divorce even though her husband had defaulted, because she had failed to testify as to the court’s jurisdiction and the judge did not elicit the necessary testimony.)” also citing, Colorado Access to Justice Commission, The Justice Crisis in Colorado: A Report on the Civil Legal Needs of the Indigent in Colorado at C‐6 (January 2008). 

[55] Memorandum from J. Dan Taubman to Appellate Practice Subcomm. (Aug. 18, 2009) (on file with the author)..

[56] Our Courts Colorado (Jun. 26, 2011, 3:50 PM), available at http://www.ourcourtscolorado.org/ (Our Courts won the national award for public education, the American Bar Association’s 2010 Burnham “Hod” Greeley Award for extraordinary outreach efforts that show the public need for a fair and impartial judiciary.).

[57] Constance C Talmage, Colorado Access to Justice Commission Accomplishments 2003-2009, available at http://www.law.stanford.edu/display/images/dynamic/events_media/COATJaccomplishments309.pdf.

[58] Id.

[59] Letter from The Honorable Sandra Day O’Connor, Supreme Court of the U.S., to J. Marsha S. Keigler (Aug. 8, 2008) (on file with the author).