[00:00:00] Speaker 01:
Thank you.

[00:00:10] Speaker 00:
Good morning, and may it please the court.

[00:00:12] Speaker 00:
My name is Taylor Yamahata, and I'm here with my colleague, Nikki Marzadeh, on behalf of our client, Joseph Wallen.

[00:00:19] Speaker 00:
With the court's indulgence, Ms.

[00:00:20] Speaker 00:
Marzadeh and I will be splitting our time and dividing the issues.

[00:00:23] Speaker 00:
I will speak for the first six minutes regarding the district court's abusive discretion, and Ms.

[00:00:28] Speaker 00:
Marzadeh will speak for the next six regarding the correct application of Wilborn and the proper interpretation of Section 1915.

[00:00:36] Speaker 00:
And we would like to save three minutes for rebuttal.

[00:00:39] Speaker 00:
Here the district court abused its discretion by failing to properly apply the well-born factors, which require the district courts to first assess the likelihood of success on the merits, and second, the capacity of the litigant to articulate their claims given their complexity.

[00:00:53] Speaker 00:
And here the record reflects that the district court outright failed to consider the first factor.

[00:00:58] Speaker 00:
Instead, as reflected on page eight of the record, it held that the court cannot determine Mr. O'Walland's likelihood of success on the merits.

[00:01:05] Speaker 00:
That was an error as the court held in well born both neither factor is dispositive and both must be viewed together before the court.

[00:01:13] Speaker 05:
District court made the first appointment first appointed Johnson.

[00:01:20] Speaker 05:
Did the court make an assessment of likelihood of success on the merits.

[00:01:24] Speaker 00:
Your Honor, in the underlying order appointing counsel, the court found that Mr. Wallin's likelihood of success on the merits stemmed from the fact that his claims had survived summary judgment.

[00:01:32] Speaker 00:
And it's important to note here that nothing had changed between that underlying appointment of finding that he had succeeded on the merits of summary judgment and then the district courts later opinion on that matter.

[00:01:43] Speaker 05:
So what do you think the district court meant in this second order when it declined to appoint second counsel?

[00:01:50] Speaker 00:
Your honor, I can't claim to know what the district court intended in their decision, but from our understanding here, it's our position that the district court just failed to apply that factor, which is an abuse of discretion.

[00:02:02] Speaker 00:
And as the panel noted in its memorandum of disposition, right versus director of corrections, the district court's failure to consider that plaintiff's likelihood of success on the merits in their opinion itself constitutes an abuse of discretion.

[00:02:14] Speaker 00:
If the district court had changed its opinion, which it is entitled to do so, it needed to be reflected within the record itself and supported by the evidence.

[00:02:22] Speaker 04:
Why can't we just assume that he incorporated the prior likelihood of success analysis from the first appointment?

[00:02:28] Speaker 00:
So your honor, we can't assume that because of the fact that the district court explicitly stated the court cannot determine Mr. O'Wallen's likelihood of success on the merits.

[00:02:38] Speaker 05:
And so we can only assume.

[00:02:39] Speaker 05:
We should take him for what he said.

[00:02:41] Speaker 05:
We should take his.

[00:02:43] Speaker 00:
Yes, your honor.

[00:02:44] Speaker 00:
That's our position that his explicit refusal to consider that factor was an abuse of discretion.

[00:02:49] Speaker 04:
Well, then isn't that isn't that a consideration of the factor in itself?

[00:02:55] Speaker 00:
Your Honor, it's our position that refusing to consider the factor is a misapplication of the law.

[00:03:02] Speaker 00:
And so that itself would be an abuse of discretion.

[00:03:04] Speaker 04:
Well, I mean, couldn't he just say, like, I can't determine it here, but the other factor just are so overwhelming that I'm going to deny the appointment.

[00:03:14] Speaker 00:
Well, as Wilbur articulated, both factors have to be considered.

[00:03:17] Speaker 00:
Neither is just positive.

[00:03:19] Speaker 00:
But to the court's point that here, had the district court properly considered that figure, it would have found it in his favor.

[00:03:25] Speaker 00:
But ultimately, also, it's our position that the district court failed to actually make a finding in terms of his ability to articulate his claims as well, given their complexity.

[00:03:36] Speaker 00:
It's our position that the district court misapplied the standard

[00:03:40] Speaker 00:
and held that Mr. O'Wallen's disagreements with his counsel indicated that he had demonstrated, quote, an ample confidence in his ability to litigate this case.

[00:03:49] Speaker 00:
But there's no case law that supports the proposition that a pro se plaintiff's confidence alone supports of their ability to articulate complex legal claims.

[00:04:00] Speaker 05:
So what are you asking for in terms of relief?

[00:04:02] Speaker 00:
Your Honor, we're asking that the court vacate the judgment and reappoint

[00:04:08] Speaker 00:
with instructions to the district court to reappoint pro bono counsel.

[00:04:13] Speaker 05:
Let's see, what if we tell the district, what if we conclude that the district court made an erroneous determination by not considering likelihood of success and integrate them together and think through and point out his prior order.

[00:04:28] Speaker 05:
Don't you think the district court should be given a chance to do it again?

[00:04:33] Speaker 00:
Your honor, it's our position that as this court held in Agamond that this court can look at the record itself and determine that Mr. Wallen should have been appointed counsel given the fact that he had met that threshold of being able to establish the likelihood of success on the merits.

[00:04:48] Speaker 00:
He survived summary judgment and then here the district court had had its underlying finding

[00:04:53] Speaker 00:
that Mr. O'Walland's brain injury, along with the complex legal questions to be resolved at trial, constitutes exceptional circumstances.

[00:05:02] Speaker 05:
Just because one survives summary judgment doesn't necessarily mean that you have a strong case.

[00:05:07] Speaker 05:
It means that there's a tribal issue of fact that the district court can't resolve.

[00:05:11] Speaker 00:
Yes, Your Honor.

[00:05:12] Speaker 00:
And it's not our position that surviving summary judgment alone indicates that a litigant should be appointed counsel.

[00:05:19] Speaker 00:
But here, the district court found

[00:05:21] Speaker 00:
that he had survived Sudbury judgment and that Mr. O'Wallin had then at least had material facts that supported his claim that was factually and legally sound.

[00:05:30] Speaker 00:
And then that taken together with the fact that he had a traumatic brain injury.

[00:05:34] Speaker 00:
that these were complex legal counsel questions, and then that he was proceeding to a jury trial, that he should have been appointed counsel here.

[00:05:42] Speaker 00:
And it's important to note that that was what was the court found in its underlying order appointing counsel.

[00:05:48] Speaker 00:
It said, quote, the effects of his brain injury, along with legal questions to be resolved at trial, constituted exceptional circumstances, end quote.

[00:05:56] Speaker 05:
So let me ask you this.

[00:05:57] Speaker 05:
If we were to agree with you and to say the just court abuse discretion, does he automatically get a new trial?

[00:06:04] Speaker 00:
If you agree with us and find that the district court did in fact abuse its discretion, it is our position that the district court should vacate the judgment because he should have been appointed counsel before.

[00:06:14] Speaker 04:
He gets a new trial.

[00:06:15] Speaker 00:
He gets a new trial.

[00:06:16] Speaker 04:
There's no harmless error analysis?

[00:06:18] Speaker 04:
Yeah.

[00:06:19] Speaker 00:
So it's our position that this error was clearly not harmless in the fact that Mr. Wallin suffered significant prejudice at trial.

[00:06:26] Speaker 00:
He misapplied the law.

[00:06:27] Speaker 00:
He didn't understand the burden of proof.

[00:06:29] Speaker 00:
He became so overcome with his emotions at trial because of his

[00:06:33] Speaker 00:
traumatic brain injury and PTSD that he had to take a break.

[00:06:37] Speaker 00:
He wasn't able to get in crucial evidence otherwise, or to have to be able to establish causation between his traumatic brain injury and the damage that he suffered.

[00:06:46] Speaker 00:
And so this clearly wasn't a harmless error.

[00:06:50] Speaker 04:
Do you want to save one minute for rebuttal?

[00:06:52] Speaker 00:
We were planning on saving that time for rebuttal together at the end.

[00:06:56] Speaker 04:
Oh, I see.

[00:06:57] Speaker 04:
Okay, go ahead.

[00:06:58] Speaker 02:
I have a question, please, counsel.

[00:06:59] Speaker 02:
Your opening brief discusses what happened at trial, both in the background section on pages 8 through 21, and then also in the argument section on page 37.

[00:07:12] Speaker 02:
My question relates to the proper record for us to consider the district court's decision.

[00:07:18] Speaker 02:
Shouldn't we restrict our review to the record up to the point in time at which the district court denied the motion for substitution of counsel?

[00:07:29] Speaker 00:
Yes, Your Honor.

[00:07:29] Speaker 00:
That is actually, that is how your analysis should go down in terms of the assessment of the Wilburn factors.

[00:07:34] Speaker 00:
We included the sections regarding prejudice only to demonstrate that this was not a harmless error and that Mr. Wallin did in fact suffer significant prejudice.

[00:07:42] Speaker 02:
Thank you.

[00:07:43] Speaker 02:
I have another question, please.

[00:07:45] Speaker 02:
On page 30 of your brief, you seem to be saying that the Wilburn panel noted, quote, serious doubts, end quote, over the United States versus Madden's extension of Weller.

[00:07:59] Speaker 02:
Now, Weller was the informapoparous case describing the standard under 1915 subsection B. And in Madden's application of

[00:08:11] Speaker 02:
the Weller standard to the pro bono provision of the same statute.

[00:08:15] Speaker 02:
So that's the 1915 E1.

[00:08:18] Speaker 02:
The Wilborn decision, I don't see describing as that extension as, quote, having serious doubts over it.

[00:08:27] Speaker 02:
But I want to make sure that I understand your reference in your brief.

[00:08:31] Speaker 02:
Where does the serious doubts, quote, come from?

[00:08:33] Speaker 00:
So respectfully, Your Honor, I believe that my colleague will be able to touch on that more.

[00:08:37] Speaker 00:
However, I believe it's located within a footnote.

[00:08:40] Speaker 00:
up to that opinion, and it states that there's the incoherence of the test in terms of if a litigant does survive summary judgment, then how can, or if they have demonstrated success on the merits, that makes it inherently difficult, and it's actually a catch 22 to be able to prove that they don't have the capacity to litigate their claims.

[00:08:57] Speaker 00:
Thank you.

[00:08:58] Speaker 00:
Thank you.

[00:08:58] Speaker 04:
Thank you, counsel.

[00:09:05] Speaker 03:
Just to pick up where you left off Judge Baggio, that is Willborn footnote three that states, we question how a court reasonably can expect a strong showing by 1983 claimant on the likelihood of success prong when it is manifestly unlikely that a pro se petitioner involved in a complex case which he cannot litigate will be capable of making such a showing.

[00:09:30] Speaker 03:
And we agree with the Wilborn court that there is this friction in the Wilborn test.

[00:09:36] Speaker 03:
And Your Honor is correct in pointing out that this was, Wilborn derives from Weller v. Dickinson, which lays out an exceptional circumstances test for pleading in a form of paupers.

[00:09:48] Speaker 03:
But other circuits in their tests for granting counsel under section 1915 do not require an exceptional circumstances showing.

[00:09:57] Speaker 03:
And I can certainly answer any questions that the panel has about

[00:09:59] Speaker 03:
those tests.

[00:10:01] Speaker 03:
And while it is our position that the Wilborn test warrants reworking on Bonk, we believe that Mr. O'Walland should prevail under the existing framework.

[00:10:13] Speaker 03:
As my colleague already mentioned, the fact that Mr. O'Walland's claims had survived summary judgment and advanced toward trial show a sufficient likelihood of success in the merits.

[00:10:21] Speaker 03:
And it is our position that Mr. Awalin did not have the ability to articulate his claims in light of the complex legal issues.

[00:10:29] Speaker 03:
There was an undisputed traumatic brain injury.

[00:10:31] Speaker 03:
He was litigating a 1983 deliberate indifference claim, which this circuit has recognized as being complex.

[00:10:39] Speaker 03:
The case was advancing toward trial.

[00:10:41] Speaker 04:
So let me ask you a question.

[00:10:43] Speaker 04:
If he wins under our current test, then if it's not broke, why should we fix it?

[00:10:47] Speaker 03:
You shouldn't.

[00:10:47] Speaker 03:
If he wins under this current test, we would welcome that remedy and that relief.

[00:10:54] Speaker 03:
Our position is that if Mr. O'Wallen's case, which is so exceptional, does not satisfy this test, then the test does need reworking.

[00:11:01] Speaker 04:
My problem is, you know, 1915 is the statute that governs all this and it just says may appoint counsel.

[00:11:07] Speaker 04:
It doesn't give any restriction.

[00:11:09] Speaker 04:
So it seems to give courts complete discretion.

[00:11:11] Speaker 04:
And so what's wrong with making it, you know, a higher threshold?

[00:11:16] Speaker 03:
Sure.

[00:11:16] Speaker 03:
Yes, Your Honor.

[00:11:16] Speaker 03:
And while it does not,

[00:11:20] Speaker 03:
It does not permit courts to require appointment of counsel, you're correct.

[00:11:24] Speaker 03:
It only says may.

[00:11:25] Speaker 03:
The language in Mallard says, construing 1915E to allow courts to ask but not compel lawyers to represent indigenous litigants does not render 1915 a nullity.

[00:11:36] Speaker 03:
So you're absolutely correct that it only

[00:11:40] Speaker 03:
allows for a discretionary appointment of counsel.

[00:11:44] Speaker 03:
But we agree with the Third Circuit in Tabron v. Grace that says that exceptional circumstances are not supported by the statute.

[00:11:55] Speaker 03:
There is no requirement.

[00:11:56] Speaker 04:
Because if it's just a May, it's completely discretionary.

[00:11:59] Speaker 04:
How is it not supported?

[00:12:00] Speaker 03:
Sure.

[00:12:01] Speaker 03:
Because the statute authorizes courts with saying may, it does not require a showing of exceptional circumstances, let alone a showing of success on the merits plus a heightened inability to support their claims.

[00:12:13] Speaker 03:
If you look at the second, third, fourth, fifth, seventh, eighth, eleventh, and D.C.

[00:12:17] Speaker 03:
circuits, they all allow for a more nuanced approach and give the district judges more discretion and more factors to consider in determining whether counsel should be appointed.

[00:12:29] Speaker 03:
For example, the DC Circuit, while it does consider whether a claim is frivolous, and that kind of gets at the merits analysis that we believe the Wilborn Court is laying out, it also allows for judges to consider whether appointment of counsel would be beneficial to the court, which is something that the Ninth Circuit does.

[00:12:46] Speaker 03:
Does our test preclude that?

[00:12:48] Speaker 03:
It does.

[00:12:49] Speaker 04:
It just says that there's two factors you have to consider.

[00:12:51] Speaker 04:
It doesn't mean that you can't consider other factors.

[00:12:54] Speaker 03:
That's true, Your Honor.

[00:12:57] Speaker 03:
Our review of the case law in the circuit does not really allow for more flexible determinations.

[00:13:02] Speaker 03:
The analysis has tended to focus solely on likelihood of success and the merits and the litigants' ability to articulate their claims.

[00:13:11] Speaker 05:
Let me ask you this.

[00:13:12] Speaker 05:
How is a district judge supposed to decide or determine that there's a likelihood of success?

[00:13:18] Speaker 03:
So our position is that taking that factor in a vacuum, so to speak, something like a litigant surviving summary judgment definitely tends to show that the claims are not frivolous, that there is, as Your Honor pointed out, a material issue of fact that should be resolved at trial.

[00:13:36] Speaker 03:
But this court and its district courts have used even lower standards.

[00:13:41] Speaker 03:
For example, in some cases, I believe it's

[00:13:46] Speaker 03:
I don't have it in front of me, but they're surviving a motion to dismiss established a likelihood of success in the merits.

[00:13:51] Speaker 03:
I think that was a past scene v Korea, which is from the district of Hawaii.

[00:13:55] Speaker 04:
You would have like a bright line rule anytime you survive a motion to dismiss council should be appointed.

[00:13:59] Speaker 03:
No, absolutely not, Your Honor.

[00:14:00] Speaker 03:
There should not be a bright line test.

[00:14:02] Speaker 03:
However, you know, the surviving summary judgment or surrounding motion to dismiss may serve as a guidepost just for establishing that first factor.

[00:14:08] Speaker 03:
The court will always still have to look at the second factor of whether the litigant has the ability to articulate their claims in light of the complex issues.

[00:14:16] Speaker 03:
And that gets at the tension, again, that the Wilbur Court pointed out in footnote three.

[00:14:21] Speaker 03:
How likely is it that someone will be able to establish likelihood of success on the merits and also have a very difficult time litigating their own case?

[00:14:28] Speaker 03:
We believe that Mr. O'Wallen did demonstrate that here in light of his.

[00:14:33] Speaker 05:
So let me ask, is the problem here that the district court judge said, I can't determine likelihood of success?

[00:14:40] Speaker 05:
I can't, you know, I just.

[00:14:42] Speaker 03:
Yes, that is the principal problem, Your Honor.

[00:14:45] Speaker 03:
It is our position that that on its face is a dispositive, that the district court failed to make an analysis, it abused its discretion, and that the

[00:14:53] Speaker 03:
case should be reversed and remanded.

[00:14:55] Speaker 03:
We also believe that based off the record, it's clear that Mr. O'Wallen did show a sufficient likelihood of success and didn't have the ability to articulate, so this court should instruct for the district court to appoint counsel.

[00:15:05] Speaker 05:
Suppose, you know, despite the fact that the district court judge had made a determination that he should survive summary judgment on his one claim or two claims, the district court judge had said

[00:15:19] Speaker 05:
When we're leaving Johnson and denying then the second appointment, he had said,

[00:15:27] Speaker 05:
Well, you know, the first time I determined that there was likelihood of success, you know, but now I've thought more about this case.

[00:15:36] Speaker 05:
I've looked at the record.

[00:15:37] Speaker 05:
You know, I remember, I recall from my handling the summary judgment and, you know, now I don't see, I don't think he's likely, you know, he's got a difficult case and he might not applaud.

[00:15:49] Speaker 05:
He might not, I don't think he's going to, there's a real likelihood of success on the merits.

[00:15:54] Speaker 05:
And, you know, he's brought these motions before, and so now I just, I don't think it's necessary.

[00:16:02] Speaker 05:
He had counsel and didn't work out.

[00:16:04] Speaker 05:
We're just going to go forward as a process.

[00:16:07] Speaker 05:
You wouldn't argue that that was an abusive discretion, would you?

[00:16:09] Speaker 05:
That's probably what he should have done, right?

[00:16:11] Speaker 03:
Exactly, Your Honor.

[00:16:12] Speaker 03:
That is what he should have done.

[00:16:13] Speaker 03:
As this court

[00:16:15] Speaker 03:
a prior panel of this court found in Hodges.

[00:16:19] Speaker 03:
That was a case denying the appointment of a third pro bono counsel.

[00:16:23] Speaker 03:
The district judge didn't make detailed findings explaining, just as your honor explained in this hypothetical, very similar findings laying out why the circumstances had changed, why counsel was not necessary.

[00:16:33] Speaker 03:
So in that case, you're absolutely right.

[00:16:36] Speaker 03:
We would not argue that's an abuse of discretion.

[00:16:38] Speaker 03:
I see that my time has expired.

[00:16:39] Speaker 03:
I would like to keep some time for rebuttal.

[00:16:41] Speaker 04:
I'll give you time for rebuttal.

[00:16:42] Speaker 03:
Thank you so much.

[00:16:58] Speaker 01:
Good morning, Your Honors.

[00:16:59] Speaker 01:
May it please the court?

[00:17:00] Speaker 01:
I'm Assistant Attorney General Julie Turley for the State Defendants.

[00:17:04] Speaker 01:
Prose civil litigants do not have a right to counsel, except in exceptional circumstances.

[00:17:10] Speaker 01:
More importantly, they do not have a right to counsel of their choosing.

[00:17:13] Speaker 01:
Four months after the district court appointed you all in counsel, he asked that that counsel be withdrawn from the case because he wouldn't file the motions that you all and wanted him to.

[00:17:24] Speaker 01:
Ewellen glosses over this fact in his argument, but it was central to the district court's decision.

[00:17:29] Speaker 01:
And based on the circumstances before it, at the time it made that decision, the district court did not abuse its discretion in declining to reappoint Ewellen counsel.

[00:17:39] Speaker 01:
This court should affirm the jury verdict.

[00:17:42] Speaker 01:
The district court stated the correct rule and analyzed each rule and the evidence before it that it applied to each factor.

[00:17:51] Speaker 01:
That is not an error.

[00:17:53] Speaker 01:
Exceptional circumstances is a factor test.

[00:17:56] Speaker 01:
And those factors are weighed together.

[00:17:58] Speaker 01:
They're not dispositive.

[00:18:00] Speaker 01:
Discretion is inherently nuanced, going to Yvonne's argument this morning.

[00:18:06] Speaker 01:
And a factor test is just that, Your Honor.

[00:18:09] Speaker 01:
It's not exclusive of other factors that the court wants to consider.

[00:18:15] Speaker 01:
But the Wilborn test puts forward two factors that it must consider at a minimum.

[00:18:22] Speaker 01:
Neither factor is dispositive.

[00:18:24] Speaker 01:
Those are weighed together at the time of the decision The district court did acknowledge its prior finding that you all in had a brain injury that warranted counsel and Acknowledged that its prior exceptional circumstances finding.

[00:18:39] Speaker 01:
However, it also found that quote subsequent developments have altered its analysis That's it one er eight

[00:18:47] Speaker 01:
You all and disagreed with his appointed council strategy and tactics, which the district court found that demonstrated his ability to articulate those claims.

[00:18:59] Speaker 01:
This test is not an ability to litigate the claims that the pro se individual is bringing forward, but an ability to articulate them.

[00:19:09] Speaker 01:
It is true that the court stated that it could not determine Mr. Uallen's likelihood of success on the merits, but that is not the same as failing to consider that factor.

[00:19:21] Speaker 04:
How should we consider that factor?

[00:19:24] Speaker 04:
I agree that the fact that he mentioned it showed that he considered it, but how did he weigh it?

[00:19:29] Speaker 01:
The court weighed that essentially that it wouldn't comment on it.

[00:19:35] Speaker 01:
It's very common in the case law that the district court states that it won't comment on the likelihood of success on the merits, or it's not going to weigh, put its own thumb on the scale of what those merits are.

[00:19:49] Speaker 01:
And that's essentially what the district court did here as well.

[00:19:51] Speaker 05:
Do you think he made a determination when he first appointed counsel that there was a likelihood of success on the merits?

[00:19:56] Speaker 01:
I believe the trial court stated in that order that it wouldn't comment something along those same lines.

[00:20:01] Speaker 01:
Same thing?

[00:20:02] Speaker 01:
Yes.

[00:20:03] Speaker 01:
It did the same sort of analysis, Your Honor.

[00:20:05] Speaker 05:
Although at least he had the summary judgment determination that he had made earlier.

[00:20:11] Speaker 01:
Correct.

[00:20:12] Speaker 01:
The court acknowledged that in its order appointing counsel four months before the order on appeal.

[00:20:18] Speaker 01:
And again, the court also acknowledges the summary judgment success in its order as well.

[00:20:24] Speaker 04:
So would one way to be interpreted that is that the district court thought that this factor was just a wash and that it's all on the other factor?

[00:20:34] Speaker 01:
I don't know that the state defense would agree that it was a wash, your honor.

[00:20:38] Speaker 01:
But the district court did heavily rely on Mr. Uallen's ability to litigate his claims in this case based on his... In one way you could say it is even if there's a likelihood of success, the other factor is just so strong in denying.

[00:20:55] Speaker 04:
Is that one way to articulate it?

[00:20:57] Speaker 01:
Yeah, the state defendants would agree with that, your honor.

[00:21:01] Speaker 05:
And... That we should assume that that's what he meant?

[00:21:04] Speaker 01:
I don't think the court needs to assume that's what the trial court stated in its order that you know it acknowledged its previous order appointing counsel, but the fact that Mister you all and was so strongly stating his own desires and his own strategy demonstrated that he had the ability to articulate his claims combined with his previous activity over the 3 years duration of this case.

[00:21:30] Speaker 01:
And the trial court was very familiar with Mr. Uwalin and his articulation at this point in the case, after it had been going on for three years.

[00:21:41] Speaker 05:
The factor said- I guess, suppose the district court had said, you know, looks like they've got a pretty strong case.

[00:21:52] Speaker 05:
But nonetheless, you know, he really doesn't need a counsel.

[00:21:55] Speaker 05:
If you read his motions and whatnot, he can articulate his claims at trial.

[00:22:01] Speaker 01:
that could potentially survive abusive discretion, your honor.

[00:22:04] Speaker 01:
Abusive discretion is a lenient standard of review and it is intentional that way so that the district court who is in the best position to evaluate the litigant before it can make that decision.

[00:22:18] Speaker 01:
It just, it depends on the person and the individual in front of it and not an abstract situation.

[00:22:27] Speaker 05:
You know, I recognize that he filed a number of motions and he made requests and whatnot.

[00:22:34] Speaker 05:
But, you know, I read it, and I shouldn't chuckle, but I read his, I'm not going to say I read it all, but he filed like an eight-page handwritten letter, like a motion to the court.

[00:22:50] Speaker 05:
And, you know, I'll be honest with you, I got through about three pages.

[00:22:55] Speaker 05:
And I couldn't get through the rest of it.

[00:23:01] Speaker 05:
So what do I make of that?

[00:23:03] Speaker 05:
I mean, it's very difficult.

[00:23:05] Speaker 01:
First, two responses to that, Your Honor.

[00:23:07] Speaker 01:
First of all, it isn't for this reviewing court to substitute its own judgment for how the district court evaluated Mr. Uallen's activity in the case.

[00:23:18] Speaker 01:
But second of all,

[00:23:20] Speaker 01:
What is important to consider in those motions is that he repeatedly stated his claims.

[00:23:27] Speaker 01:
He cited evidence to support those claims and the law that went with them.

[00:23:33] Speaker 01:
Those are the basic levels of articulating his position and how he believed that he could succeed in this case.

[00:23:44] Speaker 01:
Yes, I would say that mystery on filings are fairly characteristic frankly of incarcerated individuals and their activities in these cases.

[00:23:55] Speaker 01:
That doesn't make this case an exceptional circumstance where so much so that the district court abused its discretion.

[00:24:04] Speaker 01:
in evaluating Mr. Uallen's ability to articulate.

[00:24:08] Speaker 05:
Let me ask you this, would it, if the district court had determined that he, you know, has a good case, but that he needed an expert to present his case?

[00:24:18] Speaker 01:
I believe the court had the opportunity to do that under the rule is escaping me right now, your honor.

[00:24:25] Speaker 01:
But the court could have appointed him an expert.

[00:24:28] Speaker 01:
That isn't the issue on appeal.

[00:24:31] Speaker 05:
And I just, you know, hypothetically, you know, I'm just trying to understand how you size this up.

[00:24:38] Speaker 01:
The district court could have done that.

[00:24:40] Speaker 01:
But it that I don't believe Mr. Yuen asked for that.

[00:24:44] Speaker 01:
I don't recall the record on that particular issue.

[00:24:48] Speaker 01:
But your honor brings up a good point.

[00:24:52] Speaker 01:
There are a multitude of factors that Mr. Hualen wishes to bring to the forefront that happened at trial, which should be in a harmless error analysis, but not the abusive discretion side of the equation.

[00:25:08] Speaker 01:
In full transparency, there is no case directly on point about how this court is to

[00:25:16] Speaker 01:
evaluate if the court believes that the trial court abused its discretion, what happens after that.

[00:25:22] Speaker 01:
However, there are two cases in Yuallan's brief that he relies on, Agamon and Wright.

[00:25:28] Speaker 01:
In Agamon, the Ninth Circuit reversed a verdict.

[00:25:33] Speaker 01:
However, it also held that the petitioner's complaint was incorrect.

[00:25:37] Speaker 01:
It was essentially doomed from the beginning.

[00:25:40] Speaker 01:
And in Wright, the court reversed on the merits argument.

[00:25:45] Speaker 01:
So the jury verdict was going to be reversed regardless of the abuse of discretion question.

[00:25:51] Speaker 01:
And there was, in that case in Wright, there was no explicit consideration of the level of harm required

[00:25:58] Speaker 01:
before reversing the jury verdict.

[00:26:01] Speaker 01:
The state defendants assert that this court should not substitute its own judgment for the trial court.

[00:26:09] Speaker 01:
So that if this court believes that the trial court erred by either stating the rule incorrectly or not analyzing the factors correctly, that the trial court should be given that opportunity to do so.

[00:26:22] Speaker 01:
Um, and then if at that point, the district court believes that Mr. You all should have had counsel, perhaps that is when the jury verdict could be vacated and he would be awarded a new trial.

[00:26:35] Speaker 02:
Excuse me, counsel, but isn't the record fixed in time in terms of the time at which the district court denied the motion for substitution of counsel such that the record is what the record is and that this court, upon review of that record, is in a position to adequately assess whether there was a sufficient record

[00:27:00] Speaker 02:
for the district court to deny substitution of counsel under the Wilburn factors because this would go along with what Judge Paz was mentioning regarding the court on the ability prong of Wilburn and the district courts finding that the plaintiff had confidence in his ability

[00:27:21] Speaker 02:
versus what a lot of the cases talk about, and that is the court's assessment of the plaintiff's ability, not his confidence in his ability, but his actual ability.

[00:27:32] Speaker 02:
And let me add one other layer to that, and I appreciate this is becoming a multi-layer question, but that in this particular case in which the plaintiff's ability may have been impacted by a traumatic brain injury

[00:27:47] Speaker 02:
that was the basis of his original claim.

[00:27:51] Speaker 02:
So how do we tie all these things together and make that decision on this record, please?

[00:27:58] Speaker 01:
Let's see if I can wrap all of that together, Your Honor, and please let me know if I missed anything.

[00:28:03] Speaker 01:
First of all, there are no magic words that a trial court is to say in order for this court to find that a trial court abused its discretion.

[00:28:13] Speaker 01:
It stated the correct rule and it chose the evidence that it applied to each factor.

[00:28:19] Speaker 01:
And that is adequate under the abuse of discretion standard.

[00:28:25] Speaker 01:
As to, I'm sorry, Your Honor, can you remind me which direction you would like me to go?

[00:28:32] Speaker 02:
So I appreciate that.

[00:28:34] Speaker 02:
And I think that what I was trying to figure out was, in terms of assessing the record and whether this court is in a position to decide whether there's a basis for the court to order appointment of counsel or whether it should be remanded, if we are just looking at the record up to the decision on denying substitution of counsel,

[00:28:57] Speaker 02:
Why does it need to go back to the district court for further consideration of that when we already have the record before us?

[00:29:02] Speaker 01:
I see.

[00:29:03] Speaker 01:
Yes, I agree, Your Honor.

[00:29:04] Speaker 01:
The issue before the court is whether there was evidence to support the trial court's ruling at the time it made its decision and whether the evidence that it stated in its order is adequately supported by the record.

[00:29:18] Speaker 01:
And so, again, the word confidence might not be the most artful word the trial court could have used, but that doesn't mean that it misapprehended the record and Mr. Yuallin before it such that a jury verdict should be reversed because of that single word.

[00:29:40] Speaker 05:
Unless... In other words, you'd say under these circumstances, there still has to be some consideration

[00:29:46] Speaker 05:
whether there was prejudice or whether it was harmless.

[00:29:50] Speaker 01:
If the court is inclined to find that the trial court abused its discretion, then the question is, what level of harm must you all in show in order to justify reversing the jury verdict?

[00:30:02] Speaker 01:
And what happened at trial and after the trial court's decision not to reappoint counsel goes to harmless error, not the abuse of discretion standard.

[00:30:13] Speaker 01:
To do otherwise would be engaging in hindsight analysis.

[00:30:17] Speaker 01:
And so that's not the role of this court.

[00:30:23] Speaker 01:
I did want to mention quickly that the case law about medical conditions make it clear that the condition itself must be connected to the ability to articulate his claims.

[00:30:36] Speaker 01:
And that here the district court did acknowledge the brain injury in the order declining to reappoint counsel.

[00:30:44] Speaker 01:
But I analyzed Mr. Ewellen at that point in time as having the ability to articulate, given his strong stance about where he wanted the case to go, which motions he wanted filed, et cetera, et cetera.

[00:30:59] Speaker 01:
Unless the court has any further questions, the speak defendants ask that the court affirm the jury verdict.

[00:31:04] Speaker 01:
Thank you.

[00:31:05] Speaker 04:
Thank you, counsel.

[00:31:06] Speaker 04:
We'll give you three minutes.

[00:31:13] Speaker 03:
Thank you very much, Your Honors.

[00:31:14] Speaker 03:
I just want to address a couple of points.

[00:31:16] Speaker 03:
First, about this discussion of Mr. O'Wallen's abilities and his strategy.

[00:31:22] Speaker 03:
Here, the district court judge's finding that Mr. O'Wallen had confidence because of his desire to pursue certain motions was also an abuse of discretion because it was unsupported by the record.

[00:31:35] Speaker 03:
In fact, the district court citation that it used to support its position that Mr. O'Wallen was confident to proceed without counsel

[00:31:43] Speaker 03:
uh, was, did not actually support that proposition.

[00:31:46] Speaker 03:
What Mr. Wallen actually said, and this is an excerpt of record, page 441, was that he would proceed without counsel if the court wouldn't appoint one.

[00:31:55] Speaker 03:
Um, but he believed that the court would uphold his prior finding because of his traumatic brain injury.

[00:31:59] Speaker 04:
So that, um, very cited the fact that Mr. Johnson would not file motions that Mr. Arulan, uh, Arulan asked him to file.

[00:32:08] Speaker 03:
Yes.

[00:32:08] Speaker 04:
So that does demonstrate confidence.

[00:32:10] Speaker 03:
That demonstrates his confidence.

[00:32:11] Speaker 03:
But to that point, Your Honor, in a minute order in July of 2023, after Mr. Johnson had been withdrawn, that's an exod of record, 888, the district court denied all of those motions that Mr. O'Wallin refiled himself.

[00:32:26] Speaker 03:
So whatever strategy or confidence he may have had was not meritorious and did not reflect his ability to articulate while that may have reflected his confidence.

[00:32:37] Speaker 03:
But as Judge Baggio pointed out, confidence

[00:32:39] Speaker 03:
is not a suitable proxy for ability, just as ability may not be a suitable proxy for confidence.

[00:32:45] Speaker 03:
The next point I want to make is that the traumatic brain injury is clearly connected to his ability.

[00:32:51] Speaker 03:
There is, as my friend on the other side pointed out, there is not much case law on this point, but it is our position that a litigant who has a traumatic brain injury inherently will have more difficulties

[00:33:04] Speaker 03:
litigating than a litigant without those.

[00:33:08] Speaker 03:
That also brings me to my next point.

[00:33:09] Speaker 03:
I want to clarify that the government does misstate the standard under Wilborn.

[00:33:15] Speaker 03:
The inquiry here is not whether Mr. O'Walland's case is more exceptional than another pro se incarcerated plaintiff litigating a Section 1983 claim.

[00:33:24] Speaker 03:
The inquiry is just for any civil litigant in any civil trial.

[00:33:28] Speaker 03:
And as a matter of fact, one of the cases that the government cites, Harvey versus Means from 2025,

[00:33:33] Speaker 03:
was an application of Willborn in this circuit regarding a case with the Hague Convention.

[00:33:39] Speaker 03:
So it's really important to make sure that we have our common denominator clear.

[00:33:44] Speaker 03:
It is not for any pro se 1983 claimant.

[00:33:48] Speaker 03:
That's not the sole universe of Willborn.

[00:33:49] Speaker 03:
It's for any civil claim.

[00:33:52] Speaker 03:
And lastly, I want to talk about abusive discretion.

[00:33:55] Speaker 03:
And this court has held in Chang that an abusive discretion occurs if the court applies law to facts

[00:34:02] Speaker 03:
which while the facts are not clearly erroneous, the court rules in an irrational manner, excuse me, and that is our position of what happened here.

[00:34:09] Speaker 03:
As I've mentioned, Mr. O'Walland's purported strategy and confidence was not a sufficient change circumstance, and the traumatic brain injury remained.

[00:34:20] Speaker 03:
And with that, thank you, and we ask that you reverse and remand.

[00:34:24] Speaker 03:
Thank you very much.

[00:34:25] Speaker 04:
Thank you, counsel, and thank you, counsel, for your pro brono representation of this excellent job and excellent job on both sides of the aisle, but we appreciate it.

[00:34:39] Speaker 04:
The next case for argument is Rivera versus Anderson.