2016 Mass. App. Div. 6

September 19, 2014 - February 19, 2016

Appellate Division Western District

Court Below: District Court, Milford Division

Present: Hadley, P.J., Despotopulos & McGill, JJ.

Mario Martone for the plaintiff.

Richard Grudinskas, pro se, for the defendants.

PER CURIAM. The self-represented defendants in a jury-waived trial raise a number of issues on appeal. [Note 2] Because we find that one issue supersedes the rest, we address that issue and return this case for a new trial before another judge. The issue that controls this appeal is whether a judge in a jury-waived trial may preclude self-represented defendants from cross-examining a plaintiff while also rewording questions posed. In this case, on these facts, the defendants were not afforded the right to present their case and were precluded from presenting their defense.

At the trial, which involved claims arising from the sale of an allegedly defective used automobile, the self-represented defendants were precluded from cross-examination of the witness. The trial judge required that the questions be posed to the judge, who then would rephrase or ask a different question. We examined the transcript and record provided. There was no indication that the defendants were disruptive, unruly, or disrespectful. The judge did not explain, for instance, why he precluded the defendants from directly cross-examining the plaintiff. [Note 3] Indeed, there were times when the trial judge posed a completely different question. [Note 4]

A trial judge has broad discretion in how a trial proceeds and what questions may be asked, and he or she may pose questions to witnesses. See generally Dempsey v. Goldstein Bros. Amusement Co., 231 Mass. 461, 464-465 (1919); Olson v. Ela, 8 Mass. App. Ct. 165, 168 (1979). A self-represented party is to be treated no differently than an attorney. “Judges shall apply the law without regard to the litigant’s status as a self-represented party and shall neither favor nor penalize the litigant because that litigant is self-represented.” Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants § 1.4 (2006). “Except when examining or cross-examining

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witnesses, litigants should address their remarks and questions to the judge.” Id. at § 2.1 commentary. “Judges should ensure that proceedings are conducted in a manner that is respectful to all participants, including self-represented litigants . . . . Judges may ask questions to elicit general information and to obtain clarification. Judges should explain why the questions are being asked and that they should not be taken as any indication of the judge’s opinion of the case.” Id. at §§ 3.1-3.2.

We recognize that presiding over cases involving self-represented litigants can be difficult and challenging for judges, particularly where one party is represented by counsel and the other is not. See Lupoli v. Jackson, No. 08-P-681 (Mass. App. Ct. June 10, 2009) (unpublished Rule 1:28 decision). Upon review, however, we find that this case had an appearance of bias and that there were no findings that would explain the need to preclude the self-represented cross-examination of the plaintiff. We find that on several occasions, questions posed were not asked of the witness, thus precluding a fair opportunity for cross-examination. There was no explanation to the defendants as to why the procedure in this case was imposed. There was, therefore, an appearance of unfairness that permeated the trial.

The judgment is vacated, and the case shall be returned for a new trial.


[Note 1] Richard Grudinskas, Wendy Grudinskas, and Matthew Grudinskas and Richard Grudinskas, doing business as The Car Gallery 3.

[Note 2] The appellants’ issues regarding a unilateral pretrial memorandum, the Homestead Act, and a G.L. c. 93A final judgment are not likely to be repeated in a new trial.

[Note 3] The only apparent reason given by the judge was: “Sir, because you’re not a lawyer you’re going to ask me to ask the question. . . . The question would you like to ask, Sir - her to answer.”

[Note 4] For instance, the question asked by Wendy Grudinskas -- “Why did you continue to rent?” -- was changed by the judge to “why didn’t you buy another vehicle right away?” which precluded the plaintiff from giving an answer about claimed rental fees.