Supporting Claims for Unbriefed Issues

The review of claims for research into unbriefed issues presents problems for claims reviewers at the projects and for members of AIDOAC who audit panel claims. The obvious problem is that, unlike other time that is claimed for preparation of motions, briefs and petitions, there is no work product to examine. Plus, the reviewer does not have the record to see what prompted research into a particular issue. Also, the wide variation in the use of this billing category raises questions. Many panel attorneys bill little or no time under this category, while a few submit substantial claims listing dozens of issues.

The award of compensation for unbriefed issues is largely dependent on how well the panel attorney describes the issue researched, what in the record caused counsel to believe the issue had potential merit, and the authorities researched. Unfortunately, many unbriefed issue claims address these issues very cursorily. This can cause delay in claims processing while additional information is sought, or a claim reduction on the ground that the claim is inadequately justified.

To make sure you are adequately justifying an unbriefed issue claim, first describe the issue with some specificity. Descriptions like “credits issue” or “sentencing issue” do not convey enough information to permit intelligent review. A description like “validity of presentence credit waiver” is specific enough to inform the reviewer of the nature of the issue. Even better would be “did client’s waiver of presentence credits at prior VOP hearing apply to custody time after subsequent VOP petition was filed?” A listing of some of the cases examined would be helpful if a substantial amount of time is being claimed for an unbriefed issue.

Remember, the people reviewing your unbriefed issue claim, except the project reviewer in an assisted case, have no source of information of what you did and why you did it other than what you tell them. Since the standard for compensation of appointed counsel is how much time a reasonably experienced appellate attorney would spend on a task, there is a presumption that appointed counsel will avoid spending time researching issues that are obvious nonstarters. The better you explain why you thought it was necessary to research an unbriefed issue and what you did, the better chance you will have of being compensated for your time.

(December 16, 2010)

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