Michael S. Truesdale 2016-04-23 14:56:48
Why I support appellate pro bono services (and why you should too). Low-income Texans face litigation and nonlitigation matters of tremendous personal significance. Without the assistance of lawyers, all too many Texans are denied meaningful access to their day in court. And when a case involves litigation, the need for assistance often does not end with the entry of a trial court judgment. Not surprisingly, appellate lawyers see these needs manifest as cases move to the courts of appeals. That is where appellate pro bono services come into play. THE COURTS OF APPEALS Over the years, the Appellate Section of the State Bar of Texas has worked with various courts of appeals and local bar groups, creating programs to identify cases that may be suitable for pro bono and to match volunteer lawyers with those who qualify for assistance. Pro bono programs are designed to identify cases involving pro se parties by the information on their docketing statements. If a party elects to participate in the program, the clerk of the court notifies the pro bono volunteer coordinator, who then screens the applicant and the case. When a party is eligible, the coordinator provides basic public information about the case to a pool of volunteers. Interested volunteers notify the coordinator and the pro se applicant is then matched with counsel. If no volunteer is found, the party proceeds on a pro se basis. Since its inception, the appellate court pro bono programs have matched hundreds of Texans with volunteer lawyers who have donated tens of thousands of hours of services at no charge. To date, pro bono appellate programs have been established in the most populous appellate districts in the state. In fact, 70 percent of all civil appeals perfected in 2011 were filed in appellate courts with pro bono programs or with programs in the works. But 70 percent coverage means that 30 percent of appeals arose in courts that do not have pro bono programs. This reality for low-income Texans means that a parent contesting a child-custody ruling in one part of Texas may not have access to help from an appellate lawyer that would be readily available to a similarly situated parent in another part of the state. The Appellate Section employs an ad hoc pro bono program to help fill this gap. It attempts to match pro se litigants who have appeals in nonparticipating appellate courts with attorneys from a statewide pool of volunteers. THE TEXAS SUPREME COURT The need for pro bono counsel does not necessarily end once an appellate court issues its decision in a case. Cases are often dismissed in the courts of appeals because parties cannot afford the costs associated with preparing a record and fail to qualify as indigent litigants entitled to a record at no cost. Or pro se appeals may be dismissed on other procedural grounds involving briefing or the presentation of clearly articulated errors to the courts. Pro se parties intent on obtaining review frequently try to challenge such dismissals by filing petitions in the Texas Supreme Court. But the reality is that not every case can be accepted for review by that court, leaving many without recourse for additional review. Several years ago, the Texas Supreme Court, in conjunction with the Appellate Section, established a pilot program to help match qualified pro se litigants with volunteer appellate counsel. Under the program, when the court requests briefing on the merits in a case involving a pro se litigant, the court informs the parties of its pilot program. If the pro se party is interested in participating and qualifies, the program liaison will then work to find a volunteer appellate lawyer to serve as counsel. The program benefits not only the pro se parties, by providing them access to volunteer lawyers, but also provides a service to the court, by providing professional briefing on what may be issues of great significance to Texas law and to the citizens of the state. Recent examples include matching counsel with a party whose appeal was dismissed based upon a failure to file a record that the party could not afford as an indigent. Not every pro se case qualifies for inclusion in the program, and there is no guarantee that a volunteer will be found in every qualifying case. Even so, the program has helped frame important issues for the court’s review. But gaps still exist affecting the ability of those who cannot afford a lawyer to obtain access to full review on appeal. The first hurdle a party faces before becoming eligible to participate in the Supreme Court Pro Bono Program is the preparation of a petition for review that will garner enough interest by the court to generate a request briefing on the merits. To help pro se litigants pass this hurdle, the Texas Supreme Court, in coordination with the Appellate Section, has prepared an instruction booklet for pro se litigants explaining what must be included in a petition, what a petition looks like, and how it is organized. The instructions accompany a set of online templates for use in preparing a petition for review and assisting the pro se litigant in organizing and presenting issues to the court. It is hoped that these tools will allow pro se litigants to focus on framing issues that the court will deem significant enough to warrant briefing on the merits, rather than becoming overwhelmed by the mechanics for preparing a compliant brief. WHY APPELLATE PRO BONO IS IMPORTANT TO ME My appellate pro bono experiences have led me to the following three observations: First, providing pro bono legal services is personally rewarding. The clients I have represented are truly grateful to have someone stand beside them, listening and advocating for their causes. Second, appellate pro bono not only serves the legal needs of individual litigants but also confirms the legitimacy of the appellate process. When parties lack access to meaningful appellate review for want of counsel, it may appear to them as though the system is stacked against them. The dignity of the process is diminished when parties feel they lose simply because they could not present their case and be heard. But even losing clients can walk away with more faith in the system when they feel they have had their day in court represented by volunteer counsel. Third, I have come to realize the great need that exists for appellate pro bono services. As liaison for the Supreme Court’s Pro Bono Program, I receive numerous inquiries from parties whose efforts to retain appellate counsel have gone unsatisfied and who are desperately seeking pro bono assistance at the petition stage. I routinely reply that the pilot program is designed to provide assistance at the merits briefing stage but not at the petition stage. The reality is that in the absence of a coherent petition that clearly identifies important issues, most pro se petitioners will never make it to the point where they can receive assistance under that program. The template initiative has helped parties position their cases so that they can obtain assistance through the court’s pilot program. But a need will always exist for assistance, even at the petition stage and even though no formal system exists to match counsel with potential petitioners. WHY IT SHOULD BE IMPORTANT TO YOU Any pro bono services provided by Texas attorneys should be applauded. As a young lawyer interested in developing an appellate practice, I recall wanting to volunteer my time but struggling to find opportunities that would allow me to develop professionally as well. Those options exist for the aspiring appellate lawyer as well as the appellate veteran through the Appellate Section’s pro bono programs. Through the cooperation of the participating courts, pro bono cases may provide opportunities to receive oral arguments that otherwise may be hard to come by. The stakes for the individuals are high and the needs are great. Our programs can continue to succeed and expand with your help. I invite you to visit the pro bono page of the Appellate Section’s website at tex-app.org and add your name to the ranks of volunteers willing to assist with appellate matters so we can reach the goal of ensuring that no pro se litigant must go it alone on appeal. This article is a variation and update of a piece that was previously published in the Appellate Advocate. MICHAEL S. TRUESDALE is an attorney with the Law Office of Michael S. Truesdale in Austin.
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