Thursday, February 11, 2021
Appellate lawyers often face a challenge in securing sufficient oral argument experience because many appellate courts have curtailed oral argument. When a client asks "how many arguments have you done," if your answer is two or three, the client may look elsewhere for counsel.
Appellate courts, on the other hand, face a challenge of an enormous volume of pro se filings. Some of these briefs are very good and thorough, but others can be incomprehensible. Interesting or difficult legal issues can sometimes be obscured by virtue of a lack of adequate briefing.
Is there a way to marry these two problems in order to find a solution? I think the answer is yes. Finding ways to partner junior lawyers who need appellate experience and are interested in pro bono options with clients who need legal help can offer a win-win-win opportunity. The lawyer gets the experience they want, the client receives capable counsel, and the court receives good briefing and argument.
The challenge in designing a program like this is determining who can provide the screening function. Not every pro se case warrants a lawyer because some are frivolous. But who evaluates the cases and steers the ones with potential merit to counsel? Some courts are apprehensive about playing that role out of a fear of perception that the court is prejudging the merits.
Many courts are starting to explore creative solutions along these lines. California's Second District Court of Appeals, which already has a Self Help Center for pro se litigants, launched a pilot program to offer representation to indigent litigants in civil cases who are without counsel. The parties in selected cases will be contacted by Public Counsel for further screening. All eligible parties will be able to attend a clinic on the appellate process and will be screened to determine if their case is eligible for assistance from volunteer counsel.
The New York State Bar has a pro bono appellate program, which is limited to civil cases and is not administered by a court. But it focuses on cases in the Appellate Division, Third and Fourth Departments.
Arizona's Court of Appeals has a pro bono program that allows pro se litigants to submit an application for counsel. The program focuses on providing representation in cases that would help the court's consideration, such as matters of first impression or other complex issues.
My court is currently working on implementing a pro bono appellate program as well, and I'll report back later in the year on how that is going. In the meantime, I welcome input from folks with experience in getting programs like these up and running, and if the appellate court in your jurisdiction doesn't have something like this, please suggest it!