J-Law 28 — Equal Participation in All Conferences and Communications

Every litigant, represented or not, has the right to participate in all court communications and conferences, including those typically reserved for attorneys — sidebars, chambers conferences, and scheduled attorney calls.

Cases are shaped in rooms the self-represented never enter. The chambers conference where scheduling is really decided, the sidebar where an evidentiary question is really resolved, the "attorneys only" call where the judge and counsel really confer — the pro se party learns of these conversations afterward, if at all, when the results arrive as accomplished facts. A litigant excluded from the conversations that decide her case has been excluded from her case.

Due process means, before anything else, the opportunity to be heard — and the opportunity evaporates when the hearing happens somewhere the party is not allowed. No principled distinction supports a system in which decisions binding a self-represented person are transacted in her absence among the professionals on the other side. A proceeding either includes all its parties or it forfeits the name.

The expected counterargument: attorney-only conferences promote candor and efficiency, letting counsel speak frankly and resolve logistics without posturing. Candor achieved by excluding a party deserves a more honest name. Whatever is said in that room either matters to the case — in which case the absent party had a right to hear it — or does not, in which case exclusion protected nothing worth protecting. Efficiency fares the same: a five-minute call that binds someone who was never on it has not saved time, it has spent the absent party's rights, and the "inefficiency" of including her is simply the sound of due process functioning. Courts would never accept a conference between the judge and one represented party while excluding the other side's lawyer; the arrangement is unthinkable between professionals and routine only when the excluded party lacks a license. Naming that double standard is answering it.