As of this writing, California employs a three tier payment scale for appointed counsel in the Court of Appeal: (1) all assisted cases are paid at $95 per hour; (2) independent cases are generally paid at $105 per hour; and (3) independent jury trial cases involving murder and major sex offenses are paid at $115 per hour as are independent jury trial cases with records in excess of 3000 pages. Appointed counsel are also entitled to be reimbursed for reasonable and necessary expenses.
A. HOW TO FILL OUT A CLAIM FORM.
The preparation of a fee claim is relatively self explanatory. Counsel must bill their time within the various categories specified on the claim form. Hours must be billed in tenths. The claim must be typed. Computer programs are available which serve to expedite the preparation of claims.
Counsel need only submit an original of the claim form. The form must contain a signature or it will not be processed.
In order to ensure the timely processing of your claim, the following principles should be followed. As a cardinal rule, attorneys should provide an explanation for any line item which is either out of the ordinary or over guidelines. In particular, any item listed as an “other service” should be explained unless the nature of the service is self evident. For example, “telephone call to Attorney General” need not be explained whereas “Interview with Mr. Smith” requires an explanation.
In a similar vein, a category of service must contain an appropriate itemization. For example, if an attorney conducts a habeas investigation by interviewing several witnesses, it is not sufficient to claim 7.0 hours for “witness interviews.” Rather, the length of each interview must be specified (i.e. 1.0 hour with Mr. Jones, 1.0 hour with Ms. Black, etc.).
The same rule holds true for multiple pleadings. If you have filed three motions, you should specify the amount of time claimed for each motion. This information should be included in the explanation section of the claim.
SDAP encourages attorneys to frequently communicate with their clients, trial counsel and other relevant people connected to the case. We have often approved communication time in excess of the guidelines’ figure of 3.5 hours. However, in order to obtain an award over guidelines, you must provide an explanation for the extent of the communications. In so doing, you should list the number of letters and phone calls which were exchanged and with whom. If a family member provided assistance in communicating with the client, this time is compensable so long as it is detailed in your explanation.
A common time-consuming task for SDAP staff is reconciling the attorney’s reported record length with the length listed at our office. In most cases, we enclose with the record a sheet indicating our page count. If your page count is different, you need to explain why. Absent your explanation, we will presume that our count is correct.
In calculating the length of the reporter’s transcript, do not blindly look at the page number at the end of the transcript. Several court reporters use the block numbering method whereby each volume of the transcript is listed as 250 pages whether or not it contains that many pages. An accurate page count is possible only by counting the length of each volume and adding them together.
Review of the preliminary hearing transcript is not compensable unless it is relevant to a potential appellate issue. If you believe compensation for reading the preliminary hearing transcript is appropriate, you need to explain why.
If you have augmented the record, the additional pages should be listed in the appropriate box, i.e., the augmented clerk’s transcript should be included in the “CT” box and the augmented reporter’s transcript should be listed in the “RT” box. In addition, the length of the augmented record should be listed in the explanation section of the claim.
Ordinarily, there is no reason to use the “other” box for record length since the record on appeal generally consists of only the clerk’s and reporter’s transcripts. If you use the “other” box, you must provide an explanation for the listed item. Review of items outside the record on appeal should not be included in the “other” box. Such review should be listed as an “other service.”
With respect to your claim for briefs, any item over guidelines must be explained. If a particular issue took more time than would be apparent to a reviewer, you need to provide an explanation. For example, the issue may be novel and you may have performed out-of-state research which did not yield results. Or, if SDAP provided a brief on point, you may have needed to make wholesale changes because of the facts of your case or intervening case law.
Concerning the use of associate counsel and law clerks, please read read the AIDOAC guidelines for the appopriate use of associate counsel and law clerks.
Use of Previous Briefing Form Now Required for All
In 2003, it became a statewide requirement for panel attorneys to use the “Use of Previous Briefing” form originated by ADI in the Fourth District. A copy of this form is included in the appendix. It requires you to indicate whether you have used prior briefing “to a substantial extent” in preparing any of the arguments in the current case. If the form is not used, you should submit a memo with the same information.
Please note that “substantial” usage does not include re-using passages on general principles such as standards of review or prejudice (the guidelines assume experienced attorneys will have access to and use such materials); rather, the substantial use refers to the actual argument itself. Similarly, re-use of some of the basic black-letter caselaw as a foundation for the argument would not usually rise to the level of substantial recycling of the prior brief.
However, where the argument itself is significantly taken from the prior briefing you should indicate that on the form, and explain roughly how much was prior briefing and how much was new. An example of an explanation that ADI noted when it introduced the form was: “Argument I: about 40% was copied from previous briefs I have written. The 40% required approximately 2.0 hours to adapt the argument to the facts and update the citations.” Where appropriate you could also explain that a number of the cases discussed were new, as well as describe significant new factual material.
Finally, if you have any questions about how to fill out a claim form, call SDAP before you submit the claim. By filling out the form correctly, you will expedite the payment of your claim.
B. INTERIM CLAIMS.
An interim claim may be submitted once the opening brief is filed. Generally, one can submit only one interim claim. Pursuant to a rule adopted by AIDOAC, 5% of the payment on an interim claim is “held back.” This procedure ensures that overpayment does not occur if, on review of the final claim, it is determined that the amount of the interim claim should have been reduced. Approved expenses are paid in full.
In rare cases, an interim claim may be submitted prior to the filing of the opening brief. In cases with records of 7500 pages or more, a first interim claim may be filed upon completion of record review, and a second interim claim may be submitted after the opening brief is filed. Finally, in exceptional circumstances, payment of an early interim claim may be authorized by a project director.
An interim claim may not be submitted in Wende or Sade C. cases. However, a final claim may be submitted 30 days after the filing of the Wende brief or Sade C. letter. If the court asks for issues to be briefed, counsel may file a supplemental final claim. If counsel elects to file a claim before the court issues its opinion, time may not be claimed for reading the opinion or for any work done after the claim is filed unless the court requests supplemental briefing.
C. FINAL CLAIMS.
A final claim may be submitted upon completion of all services in the case. A final claim may also be filed in cases where the panel attorney has been relieved.
An attorney who is relieved before the AOB is filed may be compensated under certain conditions. Payment for reasonable services may often be appropriate if the attorney was relieved for reasons beyond his or her control - for example, if the client unexpectedly retained counsel, or the attorney suffered a catastrophic accident and could not continue to represent the defendant. If the reason was personal to the attorney and for his or her own benefit - e.g., taking a new job or eliminating some cases because of a heavy workload - usually no compensation is awarded. An exception may be made for work that has actually saved successor counsel time, such as an augment request granted, a draft statement of case and facts, or research notes provided to new counsel. The time saved is the measure of the award.
There is a time restriction for the filing of a final claim. The presumptive deadline for filing a final claim, after which a case is considered closed and further request for payment is not expected, is 180 days following issuance of the Court of Appeal opinion.
D. SUPPLEMENTAL FINAL CLAIMS.
Supplemental final claims may be filed with court or project permission upon a showing of good cause. Circumstances which might justify a supplemental final claim might be: (1) a mistake by the project or the JCC in processing the claim; (2) substantial, unforeseeable services rendered after the remittitur issued; or (3) adjustment following an AIDOAC audit review.
E. SDAP PROCESSING OF CLAIMS.
Upon receipt of a claim, a SDAP paralegal will prepare a computer worksheet. If there are errors or omissions in the claim, the paralegal will contact the panel attorney for clarification or additional information. The claim and worksheet are then routed to the SDAP staff attorney assigned to the case.
The staff attorney reviews the claim and makes a determination of reasonable compensation. This determination is then reviewed by the Executive Director or, in his or her absence, by the Assistant Director. The Executive Director (or Assistant Director) makes the final determination of the award to be made.
If a cut of five or more hours is anticipated, SDAP will provide prior notice to the panel attorney. Generally, notice is provided in a letter which specifies the nature of the proposed cut. The panel attorney will then be given an opportunity to provide oral or written comments regarding the proposed cut. In the usual case, the panel attorney will be given a week to respond. If no response is forthcoming, the proposed cut will be enforced. If a response is provided, the Executive Director may reduce or eliminate the proposed cut in consultation with the staff attorney who handled the case.
Once the award is finalized, SDAP prepares a payment order which is electronically submitted to the JCC. In turn, the JCC transmits a payment order to the state Controller. Following SDAP’s transmission of the payment order, a panel attorney should expect to receive a check within 14 days.
F. THE GUIDELINES.
In making fee awards, SDAP employs the guidelines which have been promulgated by AIDOAC. A copy of the guidelines may be found in the appendix.
It is critical to note that the guidelines provide only a presumptive range for reasonable compensation. In a proper case, SDAP has full discretion to make an award which is either below or above the guidelines. However, the vast majority of claims are paid within the guidelines’ figures.
In applying the guidelines, the test used by SDAP is the amount of time which should have been expended by a reasonably experienced appellate attorney. It is assumed that all appointed counsel are familiar with the general rules of appellate procedure and the standard substantive rules of law. Thus, if a task in a particular case would be performed in one hour by an experienced lawyer, only one hour of compensation will be awarded even though the guidelines’ figure may be higher.
By the same token, the performance of an unusually difficult task will result in compensation above the guidelines in a particular case. For example, if an issue of first impression requires extensive out-of-state research, an award over guidelines will be made.
G. THE AIDOAC AUDIT PROCEDURE.
In 1994, then Chief Justice Malcolm Lucas authorized creation of the Appellate Indigent Defense Oversight Advisory Committee (AIDOAC). As presently constituted, the AIDOAC committee has a judge from each appellate district, two project directors, and two practicing appellate lawyers. Personnel from the Administrative Office of the Court’s Trial and Appellate Court Services staff the committee.
The primary charge of AIDOAC is to review the quality and cost of legal services performed by appointed counsel and to make recommendations to the Chief Justice and Administrative Presiding Justices of the Courts of Appeal regarding the functioning of the appointed counsel system. AIDOAC also closely monitors the compensation awards paid by the appellate projects. To this end, AIDOAC reviews randomly selected final claims at each of its quarterly meetings. If a panel attorney’s claim is selected, he or she is given written notification and provided with an opportunity to submit a response.
Prior to the committee meeting, each member reviews a number of final claims along with the pleadings filed in the case and any response submitted by the panel attorney. Members may make recommendations for a reduction of the award, or the restoration of time cut by the project. Any such recommended change in the award must be approved by a majority of the committee.
If a reduction is made, the panel attorney will receive a letter stating the reason for the reduction and the amount. Reimbursement is then obtained by a deduction from the attorney’s subsequent claims.
If AIDOAC determines that a reduction made by an appellate project should be restored, the panel attorney receives a letter informing him or her of the decision. Upon receipt of a copy of the letter, the appellate project will generate a payment order for the restored amount, which will be transmitted to the JCC and from the JCC to the controller.