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Bar News - April 19, 2002 Panel Formed to Take Appeals Cases Pro Bono By: Lisa Sandford Volunteers Sought IT MAY SURPRISE many to learn that between 30 and 40 percent of the appeals filed in our state’s highest court involve at least one pro se litigant. According to Eileen Fox, clerk of the New Hampshire Supreme Court, statistics from 1997 (the last year pro se statistics were compiled) show that 32 percent of the cases filed in the Supreme Court that year involved one or more pro se litigants, and that number has since steadily increased. Supreme Court Associate Justice Linda S. Dalianis estimated that in a recent screening, of the approximately 45 notices of appeal the court received, about 20 involved pro se litigants. "That’s a big percentage," Dalianis pointed out. The problem with this high percentage of pro se filings is that pro se appeals are often filed in an "incomprehensive fashion," according to Dalianis; the original court order is not included, the issue is not clearly defined, or there are other problems with the brief. Sometimes, though, the issue is clear and the court recognizes that the appeal ought to be heard, but also recognizes that a pro se litigant will be at a serious disadvantage against an experienced appellate attorney. "Sometimes we’ll see that there’s an issue there that should be taken up, but we know the pro se [litigant] will be at a disadvantage without counsel," said Dalianis. Attorneys referred through the Bar’s Pro Bono Referral Panel aren’t available for appellate purposes, though, so low-income clients who may have valid grounds for appeal are forced to represent themselves. Attorneys R. Matthew Cairns and Molly McPartlin of the Concord law firm of Ransmeier & Spellman saw the pro se problem from the viewpoint of attorneys doing appellate work against these pro se litigants. "We were saying that our lives would be much easier if we could respond to briefs filed by an attorney rather than a pro se. The brief would be easier to understand, analyze and reply to if it were written by an attorney," said Cairns. Cairns and McPartlin have both served on the NH Bar’s Pro Bono Referral Panel, taking mainly family law cases, and asked themselves why a similar panel couldn’t be established for appellate cases. "We thought it would make the court’s job easier, as well as that of the appellate attorneys," Cairns said. The two approached Justice Dalianis with the idea at an Inns of Court meeting and, based on her positive response, later pitched the idea to the Supreme Court. The court moved forward with the proposal by forming an ad hoc working group consisting of Justices Dalianis and James E. Duggan, Supreme Court Chief Staff Attorney Marcia McCormack, Cairns and McPartlin to develop the pro bono appellate panel and process. The panel is based on a similar pro bono appellate system utilized by the 9th Circuit Court of Appeals. The ad hoc group tailored that court’s guidelines and mechanics slightly to develop the NH model. The NH pro bono appellate process will begin when a case involving a pro se litigant comes into the Supreme Court. If through its screening process the court recognizes a pro se appeal or issue that warrants acceptance, it will determine if the pro se litigant is interested in and qualifies for indigent counsel, based on a financial affidavit and guidelines very similar to those of the NHBA’s Pro Bono program. Those qualifying litigants will be referred to an attorney on a rotating panel of lawyers interested in and willing to take on a pro bono appellate case. Cairns and McPartlin are serving as the coordinating attorneys for the panel, and Ransmeier & Spellman is the coordinating firm. Cairns is in the midst of soliciting attorneys to serve on the pro bono appellate panel, and is soliciting donations of $100 each from the state’s larger firms to go into a trust fund that will cover the unwaivable expenses associated with a pro bono appellate case, such as transcript costs. The court can waive fees, but not such expenses as transcript costs, according to Dalianis. Cairns said that the panel is ready to start referring out attorneys as soon as the court starts sending it pro bono appellate cases. He said he expects that the panel will be in full swing around July 1. In addition to attorneys from Ransmeier & Spellman, two other firms so far have expressed interest in some of their attorneys joining the panel, he said. Dalianis said that the court is already conducting its case screenings with this panel in mind. "We’re looking at pro se cases with an eye toward those that would be appropriate for this panel," she said. Proponents believe the pro bono appellate panel will benefit all involved: The pro se litigant gets an attorney to represent her, to help frame her argument. The court benefits from appeals that are easier to understand because they are filed by attorneys rather than lay people. And the volunteer attorneys get the opportunity to fulfill their pro bono obligation through appellate, rather than trial, work. Also, attorneys who don’t normally get a chance to practice appellate work can do so by participating on the panel. This includes younger attorneys who could take a pro bono appellate case under the supervision of a more senior lawyer. "People who otherwise can’t normally argue at the appellate level will get an opportunity to do so," said Cairns. Anyone interested in participating on the pro bono appellate panel is urged to call Matt Cairns or Molly McPartlin at 228-0477 or e-mail them at matt@ranspell.com or mmcpartlin@ranspell.com.
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