A new public-interest appellate model: public counsel's court-based self-help clinic and pro bono 'triage' for indigent pro se civil litigants on appeal.

• Author: Rasch, Meehan

INTRODUCTION

Many varieties of new "pro se" or "pro bono" appellate programs have been sprouting up around the country in recent years. (1) Courts, bar associations, and legal services and advocacy organizations are implementing these projects to grapple with the challenges raised by increasing numbers of pro se (self-represented) and indigent civil litigants in appellate courts. (2) The expansion of pro se litigation strains appellate court resources and staff, but because of the complex, technical nature of the appellate process, the pitfalls for pro se litigants in this area are numerous and substantial. (3) Improper designation of the record, noncompliance with the rules of court, and a failure to provide coherent briefing of the relevant legal and factual issues on appeal are all issues that often impede low-income pro se litigants from obtaining equal access to justice in the appellate process.

Access to justice depends on access to the courts, (4) and pro se civil litigants need adequate information and resources to better navigate state and federal appellate systems and perfect their cases. In many--if not most--cases, they also would benefit from representation by counsel. For their part, appellate courts struggle to remain neutral and not give legal advice while providing enough guidance to ensure meaningful access for unrepresented litigants. (5) Much of the focus of pro se/pro bono appellate programs has accordingly been on providing print or online resources to which appellate court staff may direct pro se litigants without having to do too much "hand-holding" throughout the process or on methods of screening pro se litigant cases for appointment of pro bono counsel. These are each necessary, but frequently insufficient, measures. Many pro se litigants require technical assistance at each stage of the appellate process, beyond an initial referral to written directions. (6) This need for assistance places a serious burden on court clerks and staff attorneys, who must either spend inordinate amounts of time helping litigants unfamiliar with the court system or deal with noncompliant submissions and faulty briefing as a result of such litigants' lack of guidance. (7) Funding to establish and maintain more formalized assistance structures is not widely available within most courts of appeal. And mechanisms for placement of pro se appellate matters with pro bono counsel may depend on proactive litigant request or may be limited in scope to certain kinds of matters. (8) These gaps in the availability of pro bono representation may allow meritorious appeals by pro se litigants to fall through the cracks.

In Los Angeles, a new model seeks to better meet the needs of both indigent pro se appellate litigants and the courts, by providing a staffed self-help clinic on site at a court of appeal. This successful program, now four years old, is a unique collaboration between pro bono public interest law firm Public Counsel, (9) the California Court of Appeal (Second Appellate District), (10) and the Appellate Courts Committee of the Los Angeles County Bar Association. (11) It is the first formal drop-in clinic for pro se appellate litigants housed in any state or federal court, and to our knowledge, no other public interest or legal aid organization in the country currently provides general in-person, self-help technical assistance to indigent pro se individuals involved in civil appeals. In tandem with managing the self-help clinic, which is staffed three days a week by an experienced appellate attorney, (12) the Public Counsel Appellate Law Program also identifies and evaluates cases for pro bono representation and works with the Appellate Courts Committee to refer appropriate cases to pro bono counsel.

Everyone involved has benefitted from the presence of a knowledgeable, trusted intermediary to both provide technical procedural assistance and facilitate pro bono placement for indigent pro se litigants on appeal. Having these functions handled by the same independent, neutral specialist, accessible at the courthouse yet not paid or supervised by the Court of Appeal, has been of immense value in managing, prioritizing, and streamlining both tasks. Public Counsel hence appropriately describes the program's role as one of "triage." (13) The cost to the court system has been minimal, and the Public Counsel Appellate Law Program offers a model that, with the right local leadership and funding, has the potential to be transferable to courts of appeal nationwide.

Part I provides an overview of the needs addressed by the Public Counsel Appellate Law Program and the history of its formation. Part II gives a detailed description of the Appellate Law Program's model and operation and describes how the Program is meeting its twin goals of improving equal access to justice and increasing efficiencies of the appellate judicial system. Part III compares the Public Counsel model to other pro bono/pro se appellate projects. Part IV discusses the advantages and challenges of the Public Counsel model and its potential for replication by other courts of appeal, and the Article concludes with suggestions for courts, bar associations, and public interest organizations interested in creating similar programs.

1. HISTORY, NEEDS, AND GOALS

   1. Background

      The Public Counsel Appellate Law Program emerged from a concerted, collaborative effort by judicial, bar, and public interest leaders in Los Angeles to respond to the needs of indigent pro se (14) litigants involved in appellate matters in the state's Second Appellate District. The Second Appellate District of the California Court of Appeal is the largest and busiest of the state's six appellate districts. The Second Appellate District is made up of four counties--Los Angeles, Ventura, Santa Barbara, and San Luis Obispo--and has eight Divisions of four justices each. Seven of the eight Divisions of the Second Appellate District are located in Los Angeles; they handle all general jurisdiction matters arising from the Los Angeles County Superior Court. (15) The Second Appellate District files over 5,000 appellate opinions and disposes of over 3,700 writ petitions per year.

      Given this large volume of appeals, it is not surprising that the Second Appellate District receives a sizeable number of appeals involving indigent pro se litigants. About thirty percent of all civil cases involve one or more parties who are self-represented. (Statewide, over 4.3 million of all California court users are self-represented. (16)) Approximately fifty percent of the pro se appeals filed in the Second Appellate District are filed with fee waivers for indigency, and it is believed that a significant number of the remaining individuals who file pro se appeals are nevertheless indigent under existing Interest on Lawyers' Trust Accounts ("IOLTA") income eligibility standards. (17)

      Luckily, important leaders were motivated to respond to the challenges posed for, and by, this population of litigants. The current Appellate Law Program is a direct result of the initiative taken by a handful of influential members of the Los Angeles legal community six years ago.

   2. Collaborative Planning by the California Court of Appeal, Public Counsel, and the Los Angeles County Bar Association Appellate Courts Committee

      In 2005, Second Appellate District Associate Justice Laurie Zelon convened a small group of key stakeholders--from the judiciary, court administration, and the local appellate bar--"to brainstorm how to deliver pro bono legal services to unrepresented appellate litigants." (18) In addition to Justice Zelon, the initial group included Joseph Lane, the Clerk of the Court of the Second Appellate District, the current and immediate past chairs of the Appellate Courts Committee of the Los Angeles County Bar Association, the President of Public Counsel, and a prominent Los Angeles appellate attorney who had served as Chair of the Board of Directors of Public Counsel, President of the Los Angeles County Bar Association, and President of the California Academy of Appellate Lawyers. (19) The driving force behind this joint effort was the recognition that low-income pro se litigants face significant hurdles and could greatly benefit from technical assistance and pro bono representation. At the same time, the Court of Appeal believed that providing assistance to indigent pro se appellate litigants would improve efficiencies in the court system and benefit all parties by reducing record preparation time, decreasing other administrative delays, and improving the quality of briefing.

      The leaders agreed that the need to better serve and manage indigent pro se litigants was certainly there, but the structure of a suitable program was open to the imagination. As the group studied ways to provide assistance to pro se appellate litigants, certain limitations had to be recognized, including the fact that the Second Appellate District was uncomfortable with the court taking on any significant level of supervision and in any event lacked the funding and staffing to do so. (20) Various questions were raised: whether to limit cases only to certain matters; how or whether to screen litigants for indigency or cases for merit; whether the program would have paid staff or be run entirely by volunteers; how best to connect qualifying litigants with pro bono lawyers. (21)

      At first, the group decided to restrict cases to those involving family law, housing, benefits, and consumer issues-programmatic mainstays of Public Counsel's work--and to those matters involving only one pro se party, in order not to contribute to the dynamic of pitting pro se parties against parties with the benefit of counsel. The initial approach was also centered primarily on placement of cases with pro bono counsel, rather than on self-help assistance, and it required time-intensive, proactive outreach measures to individual litigants: "The Clerk of the...