«Case-Budgeting Techniques and Other Cost-Containment Policies (November 9, 2012) The case-budgeting techniques and other cost-containment policies in ...»
Case-Budgeting Techniques and Other Cost-Containment Policies
(November 9, 2012)
The case-budgeting techniques and other cost-containment policies in this document may
be adapted to local practice, and many have application for both budgeted and non-budgeted
representations. For case-budgeting policies and principles, see sections 230.26 and 640 of the
Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Volume 7, Part A,
Guide to Judiciary Policy.1 Worksheets and explanatory memoranda for budgeting eligible representations are available on www.fd.org, the website of the Administrative Office (AO)/ Office of Defender Services (ODS) Training Branch.
For assistance with and questions regarding case budgeting and any of the costcontainment suggestions in this document, please contact the ODS Legal and Policy Branch Duty Attorney, 202-502-3030. It is suggested that judges, other court personnel, and defense counsel in the Second, Sixth, and Ninth Circuits first contact their circuit CJA case-budgeting attorney (CBA).2 This document is intended to assist both the court and Criminal Justice Act (CJA) panel attorneys in ensuring that representation is provided in a cost-effective manner, and can serve as a cost-containment checklist. The techniques and policies set forth below have been collected in large part from the experiences of the CBAs, as well as from other judiciary personnel and court materials. The document indicates those practices for which there is a Judicial Conference policy. Reference should also be made to the CJA Guidelines for Judicial Conference policies.
Three major national initiatives are set forth (discovery, remote detention, and formation of criminal justice committees). This document will be revised as experience with case budgeting grows.
I. Preliminary Points in Cost Containment: Cost Effectiveness and Quality It is important to emphasize that case budgeting should facilitate the cost-effective provision of representation that promotes and is consistent with the best practices of the legal profession. In approving the CBA position, the Judicial Conference noted the Federal Judicial Center’s finding that the CBAs “contained costs and did not diminish (and even improved) the quality of representation” (JCUS-MAR 11, p. 13).
Judicial Conference policy encourages budgeting in federal capital prosecutions and capital habeas corpus cases, and non-capital representations with the potential for extraordinary cost (attorney work expected to exceed 300 hours or total expenditures for attorneys and investigative, expert, and other service providers expected to exceed $30,000 for an individual CJA defendant) if the court determines that case budgeting is appropriate.
At its March 2011 session, the Judicial Conference approved the use of the three CBA positions, authorized continued funding for them, and endorsed incremental expansion in the number of positions subject to the Defender Services Committee’s approval and the availability of funds (JCUS-MAR 11, p. 13). The CBAs assist judges and attorneys in the case-budgeting process and develop circuit cost-containment policies.
Moreover, CJA Guidelines § 230.33 provides that “[v]ouchers should not be delayed or reduced for the purpose of diminishing Defender Services program costs in response to adverse financial circumstances.” CJA Guidelines § 230.36 provides that judges should give counsel prior notification of a potential reduction to a voucher claim (notice need not be given for a reduction on mathematical or technical grounds), a brief statement of reasons, and an opportunity to address the matter. The guideline explicitly endorses informality and flexibility in both communication of the notice and in the resolution of any objection by counsel.
II. Appointment of Counsel
From a cost-containment perspective, the first and most cost-effective action that courts can take is to appoint appropriately qualified and experienced counsel. In federal capital prosecutions and capital habeas corpus representations, Defender Services program resources have been created to help the court accomplish that objective (see sections V and VI below).
Non-capital representations with the potential for extraordinary cost qualify for the exception from a court’s general practice of contacting the next panel attorney on the appointment list. See CJA Guidelines, Appx 2B (Model Plan for the Composition, Administration and Management of the CJA Panel), section II.B, p. 7 (“Appointments from the list of private attorneys should be made on a rotational basis, subject to the court’s discretion to make exceptions due to the nature and complexity of the case, an attorney’s experience, and geographical considerations.”).
III. Case Budgeting Generally (see CJA Guidelines §§ 230.26 and 640)
A. Identify Cost Drivers. Counsel are encouraged to adopt cost savings strategies in all instances where appropriate, and to explain those efforts in the budget submission. The court and counsel should identify a case’s cost drivers and discuss cost-savings ideas. These discussions and/or written submissions will help the court assess the reasonableness of the budget and voucher submissions, monitor fairness in its authorization of attorney and service provider time and expenditures, and effectively oversee the expenditure of CJA funds. In recognition of the fact that the defense has no control over many cost drivers, courts are encouraged to use their authority and discretion to obtain the prosecution’s cooperation in such areas as discovery.
C. Schedule Interim Vouchers. To help the court and counsel monitor expenditures against the approved budget, the court should set a schedule for attorneys and service providers to submit vouchers at regular intervals (e.g., at the end of each month when more than 10 hours of services have been provided) and the last day of a budgeted stage. See CJA Guidelines § 640.30(g).
D. Require Budget Amendments. If it appears that an approved budget will be exceeded, counsel should file a proposed amendment to the budget, where possible. See CJA Guidelines §§ 640.10, 640.20(f), and 640.30(d).
IV. Attorney Work A. Use Lower Costing Service Providers in lieu of Appointed Counsel. Counsel should consider the use of lower costing (vis-a-vis attorney hourly rates), wellqualified paralegals, investigators, and other service providers in lieu of having appointed counsel perform certain tasks where doing so would save money and time. Requests for such resources should specify the tasks, projected number of hours, hourly rate, and total anticipated expenditure. See section VII below.
B. Use Lower Costing Associates in lieu of Appointed Counsel. Counsel should also consider the use of lower costing, well-qualified associates. In capital cases, CJA Guidelines § 620.10.10(c) provides that appointed counsel must obtain prior approval to use attorneys who work in association with them and that the hourly rate must be lower than that of appointed counsel and must reduce the cost of the representation or be necessary to meet time limits. Although CJA Guidelines § 230.53.10(b) does not include these limitations for associates in non-capital cases, the court may find it useful to require appointed counsel to request prior approval for the use of associates after a certain number of hours (e.g., 10 hours is the threshold in the Second Circuit).
C. Develop Maximum Rates for Associates. The court may find it useful to set maximum rates or ranges of rates for associates, subject to exception based on justification submitted by appointed counsel.
D. Avoid Duplication of Effort in Multi-Defendant Cases. Counsel should seek to reduce the duplication of effort among the defense teams when consistent with an attorney’s obligations to the defendant. For example, in multi-defendant cases, it may be cost-effective to have one attorney conduct certain tasks where conflicts do not preclude such (e.g., liaison to service providers performing work for more than one co-defendant; principal role in researching and writing certain motions).
E. Avoid Duplication of Effort within the Defense Team. Counsel should seek to reduce the duplication of effort within the defense team for an individual defendant. If more than one attorney has been appointed for an individual defendant, counsel should consider, for example, whether each attorney needs to attend specific court proceedings or conduct witness interviews.
F. Coordinate Efficiently to Reduce Meeting Time. Counsel should avoid unnecessary conferences and memos among multiple attorneys, and between counsel and staff, such as associates, investigators, and paralegals, both within a defense team and in multi-defendant cases. Such meetings and communications may be necessary, and will be compensable if the frequency and time billed are reasonable given the needs of a case, but counsel should always carefully assess the need in advance.
G. Utilize Cost-Efficient Means to Set Schedules. Especially in large, multidefendant cases, the court should consider alternative means (e.g., teleconference or email) to having all counsel in court to set a schedule.
H. Anticipate Waiting Time. Courts are encouraged to consider scheduling adjustments that would reduce federal defender and panel attorney in-court waiting time. In addition, panel attorneys should try to anticipate waiting time in court and at detention facilities, and avoid billing for waiting time by working on other matters.
I. Limit Billing for Administrative Work Related to ECFs. Because it ordinarily is a clerical function, counsel should not charge for downloading, opening, renaming, saving, printing, and/or forwarding an electronic court filing (ECF) notice. Counsel may bill for reading substantive documents attached to the ECF, but should aggregate time spent during the day and ensure that double billing of time does not occur.
V. Appointment of Counsel and Attorney Work Specifically in Federal Capital Prosecutions A. Utilize Resources to Appoint Counsel and Develop/Evaluate Budgets.
18 U.S.C. § 3005 provides that the court “shall consider” the recommendation of the federal defender (or the Administrative Office of the United States Courts if there is no federal defender) regarding the appointment of counsel for a defendant indicted for a capital crime. Federal defenders often will consult with Federal Death Penalty Resource Counsel (FDPRC) (see www.capdefnet.org) before making a recommendation. See CJA Guidelines § 620 and Appx 6A for information regarding the appointment of counsel in capital cases, including the appointment of the federal defender.
Counsel should consult with FDPRC to help develop a capital defense budget and, as a general resource, to provide advice in capital litigation. FDPRC and other resources, including Federal Capital Appellate Resource Counsel, are also available to consult with the court (see memorandum from AO Director dated July 22, 2008, CJA Case-Budgeting Assistance, and www.capdefnet.org).
B. Act on the DOJ Authorization Decision. Upon learning of the DOJ authorization decision, counsel should notify the judge or court staff person who is coordinating case budgeting in the representation. (The DOJ death penalty authorization protocol provides that the United States Attorney or Assistant Attorney General shall promptly advise the court and defense counsel once a decision has been made.) If the death penalty is not authorized by the Attorney General, the court should consider whether, in its discretion, to reduce the number of appointed attorneys and/or the hourly rate (see CJA Guidelines § 630.30).
C. Set a Schedule for the Authorization Decision. Over the past several years, the judiciary has urged DOJ to streamline its “fast-track” protocol for cases where the U.S. Attorney does not recommend the death penalty and it is highly unlikely that DOJ will ultimately seek the death penalty. The goal is to reduce the length of time between the indictment of a defendant on capital-eligible charges and a decision by the Attorney General that the defendant will not be prosecuted capitally. (There is also a pre-indictment fast-track provision in the protocol.) Unless and until DOJ notifies counsel and the court that it does not intend to seek the death penalty for a death-eligible defendant, defense counsel must assume that the death penalty will be pursued; the judiciary is obligated to bear the substantial cost of two defense counsel who are compensated at a higher capital rate; and counsel are required to perform investigation and otherwise prepare for a capital sentencing proceeding. CJA Guidelines § 670, jointly developed by the judiciary and DOJ staff, encourages courts to consult with the parties in order to set reasonable deadlines for stages of the death penalty authorization process (subject to extension for good cause). An early decision by the Attorney General not to seek the death penalty could achieve significant cost savings for the defender services program, as well as eliminate unnecessary diversion of limited resources.
D. Avoid Unnecessary Legal Research and Writing. Given the Supreme Court decision in Wiggins v. Smith, 539 U.S. 510 (2003), a detailed memorandum explaining the legal basis for a mitigation expert in a capital case should not ordinarily be required. The memorandum should explain the work to be performed.
VI. Appointment of Counsel and Attorney Work Specifically in Capital Habeas Corpus Cases A. Utilize Resource Counsel. The Habeas Assistance and Training Counsel (HATC) Project is available to work with courts to identify appropriate counsel for capital habeas § 2254 and § 2255 cases (see the AO Director’s July 22, 2008 memorandum and www.capdefnet.org). The HATC Project also is available to assist courts and panel attorneys with case budgeting and to consult with appointed counsel regarding their representations.
B. Consider Appointing Federal Defender First. Consistent with a court’s CJA plan, courts in districts served by a federal defender organization with staff dedicated to capital habeas representation should first consider appointing the federal defender rather than a panel attorney. In special circumstances, these capital habeas units have provided representation in districts without one.
VII. Investigative, Expert, and Other Services