Because it’s Leap Year, we are each faced with deciding what to do with the extra time available in February. Some will opt to spend that time with their friends and families. Others will inevitably bill more hours, thus adding to the coffers of their partners or employer. Others may ask: What else can I do?
This article offers an answer to that question: You can volunteer to represent an appellant on a pro bono basis in an appeal before the Ninth Circuit or Division One of the Washington Court of Appeals. Both courts have pro bono programs and both offer lawyers the opportunity to make a real difference — one appellant at a time.
My first pro bono appeal was in the Ninth Circuit, which established its pro bono program 15 years ago. It was May 1995, I had just finished a three-month jury trial, I had already billed enough hours to take the rest of the year off, and I wanted to focus on developing my appellate practice — something I had intended to do since completing my Ninth Circuit clerkship. As a junior associate in a large law firm, I had written plenty of appellate briefs. But this time, I wanted my own appeal, one that I did not have to share with a more senior attorney who would in all likelihood insist on handling oral argument.
That’s when I learned about the Ninth Circuit Pro Bono Program. Most lawyers are surprised to learn that one of three appeals in the Ninth Circuit involves a pro se litigant. Many (although certainly not all) of these litigants produce incomplete, inarticulate and sometimes unintelligible briefs. Without legal representation, dispositive issues may be ignored and the arguments may be one-sided at best.
The problem is exacerbated by the Ninth Circuit’s heavy caseload. For example, in 1992 (the year before the pro bono program was created), almost 8,000 appeals were filed in the Ninth Circuit alone. Almost 3,000 of those appeals had at least one pro se party. In a given year, therefore, a Ninth Circuit judge (as part of a two- or three-judge panel) could resolve well over 100 appeals involving pro se litigants. And, of course, the Court’s case law has expanded greatly since 1992, especially with regard to immigration appeals.
The Court addressed this problem in 1993 by creating the Ninth Circuit Pro Bono Program. Today, all pro se appeals are reviewed at the outset by court staff for jurisdictional defects. Appeals are dismissed if such defects exist or if a pro se litigant fails to prosecute the appeal. Most of the remaining appeals are processed by staff attorneys. If a pro se appeal is considered complex, it is reviewed to determine whether pro bono counsel should be appointed. This typically occurs in appeals that involve multi-faceted legal issues or important questions of first impression.
The Ninth Circuit’s commitment to these appeals is substantial. In addition to devoting resources to the screening process, the Court reimburses various expenses of pro bono counsel, enters an order scheduling briefing and oral argument at counsel’s convenience (within reason of course), and provides a complete copy of the record. And best of all, the Court has agreed to hear oral argument in all appeals handled by pro bono counsel. This is especially important for junior attorneys who — like me in 1995 — don’t want to sit on the sidelines while someone else argues before the Court.
The Court also appreciates the work of lawyers who volunteer for these cases. In many cases, the panel will thank counsel for their service at oral argument. This happened in my first pro bono appeal, except that the judge added (after a very difficult argument): “You certainly gave it a good try.” Although it was hard to appreciate that final retort at the time, I later received a decision accepting nearly all of my arguments. I felt so good, I volunteered to be a district coordinator for the program — something I have done since 1996.
Every few weeks or so, I receive the record in an appeal in which pro bono counsel is needed. I write up a short summary of the appeal and send it to lawyers who have signed up to receive these summaries. If a case strikes their fancy, they call my assistant to volunteer. And whoever volunteers first, it’s their case to brief, argue and hopefully win.
I also perform a similar function for Division One of the Washington Court of Appeals, which is also starting to refer important appeals to pro bono counsel. Like the Ninth Circuit, Division One has agreed to hear oral argument in all appeals in which pro bono counsel are appointed. The process for appointing counsel is similar: I receive the file from the Court, I prepare and circulate a summary, and someone then volunteers.
In addition to acting as a liaison to pro bono counsel, I also have accepted more than 15 pro bono appeals from the Ninth Circuit and one from Division One. I also teach a course on appellate practice at the University of Washington School of Law in which students write briefs and then argue an actual appeal as part of the Ninth Circuit Pro Bono Program. These cases have ranged from prisoner rights litigation and habeas corpus appeals to immigration cases and family law matters. Every case is interesting and rewarding in its own way.
A couple cases are especially significant and provide a sense of why this work is so important. In one case, I was appointed by the Ninth Circuit to represent a Muslim inmate who alleged that various prison officials had violated his First Amendment rights by desecrating copies of the Qur’an and by preventing him from properly observing the tenets of his religion. The District Court granted summary judgment in favor of the defendants.
After studying both federal law and Muslim religious principles, we were able to show that the defendants were largely ignorant of the requirements of the Muslim faith and had therefore failed to properly accommodate those requirements. The Ninth Circuit agreed, reversed the District Court and remanded the case for additional proceedings, including the appointment of counsel on remand (since my appointment was limited to the Ninth Circuit proceedings).
Although not required to do so, we decided to continue to represent the litigant on remand and attempt to negotiate a settlement agreement. We were successful in doing so and, as a result of our efforts, Oregon prison officials agreed to a number of terms regarding prayer, diet and religious attire. What’s more, these accommodations were not limited to our client; they apply to all Muslim inmates at the same institution — something that we can be, and are, proud to have accomplished.
In another pro bono appeal, I was appointed by the Ninth Circuit to represent a client who, for many years, had been challenging a state court conviction in which the trial court judge told the jury that reasonable doubt can be defined as a seven on a scale of one to 10. After the defendant objected, the judge corrected himself by explaining that reasonable doubt was not any single number but rather was “somewhere between a six and nine.” The end result was a numerical definition of reasonable doubt that barely exceeded a preponderance of the evidence.
The defendant was pro se during trial and continued to represent himself in state court on direct appeal and habeas review and in federal court on habeas review. His conviction was affirmed by the state courts and by a federal District Court in California. Rather than follow suit, the Ninth Circuit recognized the need to appoint pro bono counsel and eventually reversed, holding that the erroneous definitions of reasonable doubt were “structural errors” that required automatic reversal under the Sixth Amendment.
Like many other pro bono clients, the clients in both of the above appeals wrote very nice letters expressing their gratitude. In the first appeal, our client concluded his letter by stating: “There are people out there that really do care.” In the second appeal, our client concluded his letter as follows:
In my opinion, it takes a great deal of integrity to set aside valuable time, merely to help the little guy; the less fortunate. I pray that, if I am especially fortunate enough to make a difference in someone’s life, given the opportunity, I will not waiver in my actions. Because if I can ever cause someone to feel the way I felt, upon receiving the 9th Circuit Court’s October 24, 1996 Opinion, there will be no doubt in my mind, that I have truly done a good deed.
Letters like this are a large part of why I continue to devote a substantial portion of my time (more than 200 hours per year) to pro bono appeals.
But this isn’t the only reason I accept these cases. Nor does it have to be the only reason you volunteer. As a result of my pro bono efforts, I have been fortunate to get to know members of our appellate courts and their staffs. All told, I have prevailed in more than 90% of the pro bono appeals I have litigated. Clients appreciate that statistic, and it is yet another reason why I continue to accept pro bono appeals and actively encourage others to do so — both in the Ninth Circuit and in Division One.
This, of course, leads to the inevitable request: Take a pro bono appeal, please! The procedure for getting involved is easy and does not require a firm commitment. If you are interested, send an email to that effect to my assistant Catherine (Catherine.Bryan@hellerehrman.com).
When a pro bono appeal becomes available, you will receive a short email memorandum describing the appeal and asking for volunteers. You can delete the email or read it and volunteer — there is no commitment whatsoever. But if you do volunteer, I suspect you will eventually agree that the personal and professional benefits can be overwhelming.
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Leonard Feldman is shareholder in the Seattle office of Heller Ehrman LLP and heads up its Appeals and Strategy Group in the firm’s Northwest offices. His practice focuses on appellate practice, commercial litigation and pro bono service.
