chevron-down Created with Sketch Beta.
February 17, 2023

Appellate Court Pro Bono Programs

By: Rebecca G. Powell

Appellate courts don’t just make decisions in individual cases; they shape the law and create precedent for countless others. Even more than in the trial court, getting to the right answer is crucial to protecting the rights of the parties as well as the broader development of the law. But many litigants cannot afford quality representation, and are left to navigate their appeal on their own. Appellate court systems across the country are developing and improving a variety of pro bono programs to attempt to match appellate practitioners with clients who need their services on appeal. We heard from an excellent panel familiar with these programs at this year’s AJEI Summit. Judge Jacqueline H. Nguyen of the Ninth Circuit Court of Appeals sat on the panel, accompanied by Charles W. Wirken and David Timchak, who are Arizona appellate attorneys with extensive experience in court-led pro bono programs. Justice Rhonda K. Wood of the Arkansas Supreme Court served as moderator.

Judge Nguyen discussed the Ninth Circuit’s robust and well-established pro bono program. Court staff evaluate all cases that have survived dispositive motions where at least one party is proceeding without representation. They determine whether the cases are potentially meritorious, or are complex enough that the court would significantly benefit from briefing and argument by counsel. This assessment can happen before or after the case has been briefed by the pro se litigant. Judge Nguyen described this screening process as “rigorous,” designed to focus on the cases that would most benefit from attorney participation. 

Once a case is selected for inclusion in the pro bono program, counsel is appointed by the court from a list of volunteers. Judge Nguyen said that a key component of the program that is integral to its success is the infrastructure at the court that has been set up to facilitate the process. A full-time pro bono coordinator helps match clients and counsel, assists them with filing substitution motions, coordinates setting a realistic briefing schedule, and presents sample representation letters. Because of this well-tuned system, the process is clear and streamlined. Attorneys are matched with cases in their geographical area to avoid the burden of travel. Lawyers can recover costs if they succeed, but many choose not to seek them. The availability of recovering costs can be important for smaller firms or solo practitioners who aren’t able to absorb those additional expenses.

The Ninth Circuit’s program is very popular: there are over a thousand lawyers ready to step up across the circuit, and there are always more attorney volunteers than cases selected through the screening process. It’s in-demand because pro bono attorneys appointed through this program are guaranteed oral argument; the case will not be decided on the briefs. This creates a rare opportunity—particularly for more junior attorneys who need standup experience—to get a federal appellate oral argument under one’s belt.

The screened cases are also fed to 18 active law school appellate clinics, where third-year students under the supervision of attorneys have the unique experience of being able to brief and argue a federal appeal before they’ve even graduated from law school. Some clinics are specialized and focus on particular areas, such as immigration; others are broad in scope.

The Ninth Circuit’s program has been humming along for more than 25 years. Judge Nguyen explained that the court is considering expanding the scope of the program to allow even more litigants to access quality appellate representation, perhaps by seeking volunteers who are willing to work on cases that are not as clearly meritorious or complicated and would not meet the current rigorous screening criteria, but likely without guaranteed oral argument.

Charles Wirken discussed some of the valuable experiences he’s had as pro bono appellate counsel operating outside of a court-run program. He regularly monitors the agenda and minutes of the Arizona Supreme Court when deciding petitions for review, to identify emerging cases that raise issues he is substantively familiar with and interested in. He then reaches out to the pro se litigant to offer his representation. Through this process, he represented a woman before the Arizona Supreme Court in a case concerning the division of military retirement benefits when a marriage is dissolved. He won that case before the Arizona Supreme Court, and the U.S. Supreme Court granted certiorari. Although the high court ultimately reversed the state-court opinion in his client’s favor (certainly a disappointment for his client), Mr. Wirken’s initiative and commitment to pro bono service meant that he had an opportunity to brief and argue a case before the U.S. Supreme Court.

David Timchak has likewise served as pro bono counsel in a number of appeals. He’s encountered some tricky situations—for example, in one case where he was matched with a pro se litigant, he was unable to reach the prospective client to create and formalize the representation. He worked with the pro bono coordinator at the court to try to reach her, and when that was unsuccessful he ended up agreeing to file an amicus brief in support of the client instead. This gave the court the benefit of briefing even though he could not directly represent the party. Mr. Timchak was still able to get the benefit of oral argument representing an amicus party. Like Mr. Wirken, Mr. Timchak also proactively monitors the development of cases in areas of the law he is interested in to foster a better development of the law. Even when he doesn’t win, he appreciates that he’s part of the process to clarify the law for litigants going forward.

Mr. Timchak was also heavily involved in updating the Council of Appellate Lawyers' (CAL) Pro Bono Manual, which was circulated at the AJEI conference. It details how appellate court pro bono programs in different jurisdictions work, how they are funded, how attorneys can participate, and the like. Some courts allow pro bono service to count as CLE hours. Some have dedicated staff to coordinate the program; others rely on volunteers. Some are well-funded, whereas others are fairly limited. Courts that are looking to start, expand, or improve a pro bono program can use the manual as something akin to a “menu” of options to consider. It also offers ways to connect with people in other jurisdictions who have successfully created or run similar programs. The manual gives attorneys a great jumping off point to figure out how to plug into various programs across the country where they may practice. This valuable (and now fully up-to-date) resource is available on the ABA website.

The panelists finished the program with a series of great tips for getting started with pro bono representation. The first stop should be the CAL pro bono manual described above. If your jurisdiction has a formal court program, reach out to the coordinator. If it doesn’t, connect with your local legal aid organization; most have volunteer lawyer projects to connect attorneys with cases that match their interests and expertise. If you have criminal experience, reach out to the local federal public defender’s office—they have a robust program of connecting volunteer attorneys to indigent defendants. Finally, like Mr. Wirken and Mr. Timchak, you can monitor emerging issues that are being litigated and identify any that involve a pro se litigant who may be interested in free legal services.

Pro bono appellate service is crucial to promoting access to justice for individual litigants and contributing to the development of important legal principles for all. It was inspiring and educational to hear about so many ways that we can be of service to the courts, the profession, and litigants who need representation.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Rebecca G. Powell

Horvitz & Levy LLP

Rebecca G. Powell is a civil appellate attorney at Horvitz & Levy LLP in Los Angeles, the largest law firm in the nation specializing exclusively in appellate litigation. She maintains an active pro bono practice, including as the co-director of the Ninth Circuit Appellate Advocacy Clinic at Pepperdine Caruso Law School.