Power, Process, and Protection: The Role of Judicial Discretion and Litigant Knowledge in PFA courtrooms

• Morgan Bossi, , University of Delaware

• Angela Hattery, Women and Gender Studies, University of Delaware

Protection from Abuse (PFA) orders have been available in almost all states since 1998; providing a legal mechanism for the state to intervene in family situations and reduce the threat or occurrence of violence. Through our court watching observations of several cases involving self-represented litigants or “pro se” litigants, we have noted that conflict often arises during trial regarding litigants’ knowledge of the process and the role of judicial discretion. Existing research suggests that pro-se litigants often do experience differences in outcomes compared to those with legal representation, and our observations only confirmed this discrepancy. Commissioners who actively guided pro se litigants through the trial process, by clarifying procedures, explaining expectations for trial, and rephrasing legal terms, were generally able to maintain consistent discretion without compromising impartiality, whereas commissioners who refrained from offering such guidance often struggled to keep litigants focused and on track, which disrupted to flow of proceedings.