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«Case-Budgeting Techniques and Other Cost-Containment Policies (November 9, 2012) The case-budgeting techniques and other cost-containment policies in ...»

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A. Use Lower Costing Service Providers in lieu of Appointed Counsel. Counsel should consider using lower costing, well-qualified investigators, experts, and other service providers in lieu of 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, the hourly rate, and the total anticipated expenditure.

B. Establish Maximum Rates. A court may find it useful to establish maximum rates or ranges of rates for investigators and often-used experts (e.g., psychiatrists/ psychologists) and other service providers (e.g., paralegals). These rates could be exceeded based on justification submitted by appointed counsel (unavailability of a qualified service provider).

C. Limit Copying Costs. The court should consider setting maximum rates for copying services, including in-house copying, subject to exception. Section 530.20.20 of Vol. 6 (Court Reporting), Ch. 5, Guide to Judiciary Policy, provides that “[c]ourts may want to obtain price quotations from copy services (at least three where feasible) to determine the commercially competitive rate for each court location. The AO estimates that ten cents per page would be a maximum copy rate, with such rate often lower and rarely higher. Commercial rates should be monitored by the court on a periodic basis to ensure accuracy and compliance with the guideline.”

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D. Negotiate with High-Cost Experts. Counsel are encouraged to negotiate with service providers, particularly high-cost specialized experts, for a lower CJA rate for their services and, possibly, a lower hourly rate for their travel time.

E. Consider Local Service Providers First. To minimize travel costs, counsel should select local service providers whenever appropriate. Nevertheless, courts should give counsel the opportunity to explain why a remote service provider, especially for specialized services, should be authorized.

F. Phase Work to Avoid Unnecessary Billing. In certain cases, the court may consider authorizing a limited number of hours to enable the service provider to perform a sufficient amount of work that will enable counsel to decide whether to seek additional spending authorization.

G. Share Service Providers. In a multi-defendant CJA case, counsel should advise the court what service provider work can be shared without creating a conflict of interest or compromising quality (e.g., translation of documents; background investigations; discovery management).

H. Communicate Expectations Clearly. As soon as a case budget has been approved, counsel is responsible for communicating with the service providers to ensure compliance with specific terms of the court order and to ensure that charges do not exceed the amount authorized. Where feasible, counsel should provide an engagement letter to the service providers specifying the terms and limits of the work. The letter should caution that fees and costs may not exceed the contracted amount absent court approval.

I. Limit Attendance at Court Proceedings. Generally, support staff, including investigators, paralegals, and law clerks, will not be compensated for attendance at court proceedings. Counsel should either make a motion in advance explaining the need for their compensated attendance or explain the reason for such attendance in the voucher submission.

J. Seek Federal Defender Advice. Courts and panel attorneys may consult with the applicable federal defender regarding the appropriate rates of compensation for certain “high-cost” expert services.

VIII. Three National Initiatives: Discovery, Remote Detention, and Criminal Justice Committees

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An Ad Hoc Working Group on Remote Detention was formed to help the judiciary lessen the impact of remote detention on the judicial process and attendant costs. Several Judicial Conference committees were represented on the working group, as well as a federal public defender, the chief panel attorney district representative, chief pretrial services/probation officers, and representatives from the United States Marshal Service, Bureau of Prisons, and the Office of the Federal Detention Trustee (OFDT). The Working Group recommended that each judicial district form a District Detention Committee (DDC), or use another appropriate forum, with relevant stakeholders to assess, prepare for, and respond to current and future remote detention issues. The objective should be to ensure adequate attorney access to detainees to preserve the integrity of the judicial process and ensure the constitutional rights of the defendants, while minimizing undue strain on appointed counsel and the Defender Services budget.

Local efforts to reduce the costs associated with remote detention of pre-trial defendants have been highly successful. Some suggestions for local actions include: (1) Encouraging the district’s U.S. Marshal to (a) house pretrial detainees in facilities that are local rather than distant from the courthouse, and (b) provide transportation for detainees from the facility to the courthouse for defense team-client consultations upon the request of counsel - perhaps by making available unneeded seats on the bus when prisoners are being transported to court; (2) Embracing methods of alternative detention, such as electronic monitoring devices; and (3) Reducing the number of defendants subjected to pre-trial detention.

A website (https://ows.usdoj.gov/DDCWS/) was launched by OFDT in 2009, in consultation with the Working Group, to provide information to assist local detention committees. The password to access the district-specific information is #1Worksite (case sensitive). Please contact Pamela Hamrin, Attorney Advisor, in the ODS Legal and Policy Branch, at (202) 502-3030 if you need assistance.

C. Court Committees Dedicated to Cost Containment in the Criminal Justice System Courts should consider the establishment of a “Criminal Justice Committee” or “Stakeholders Committee” in which the principals in the criminal justice system (including the chief judge, magistrate judge, clerk of court, federal defender, panel attorney district representative, probation/pretrial services officer(s), U.S. Attorney, U.S. Marshal, and warden) can meet, as needed, to discuss ways to reduce CJA and other criminal justice costs (e.g., access by panel attorneys to the courthouse, waiting time associated with visiting clients at detention facilities, remote detention solutions, discovery policies, etc.). JCUS-MAR 94, pp. 17-18.

In addition, courts have established the following committees:

1. CJA Committee - to consider all issues and policies relating to CJA representation (e.g., approval of expert and investigative services, travel issues, voucher issues, parity of access to courtroom technology, methods and timing of appointments, the ratio of case appointments between the defender and the panel, etc.). This committee should serve a broader objective than the panel selection committee. Members of this type of committee have included the federal defender, the panel attorney district representative, the chief judge, other district or magistrate judges, members of the panel, and the CJA panel administrator.

2. District Detention Committee - to address remote detention issues, see section VIII.B above.

3. Voucher Review Committee - to assist individual judges in the reasonableness review of CJA vouchers. Upon the request of a judicial officer, experienced federal criminal practitioners review the referred voucher and provide the court with a recommendation as to whether to approve or adjust it. Members of this type of committee have included the federal defender, the panel attorney district representative, experienced members of the panel, and local federal criminal practitioners.

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