Claims Update April, 2008

The AOC and AIDOAC have modified the compensation claim form and its use as follows.

Beginning Monday, April 7, 2008, on all cases for which no claim has yet been filed:

Item 1 ("Communications") is to be used solely for communications with the client and the trial attorney. 

Item 23 (presently "Other Services") is to be used ONLY for all other communications (including with the court, co-counsel, opposing  counsel, family when necessary, etc.) and will be renamed  "Other Communications."  As always, only communication time that is explained and deemed reasonable can be  compensated.

Item 24 (also presently named "Other Services") will contain all miscellaneous services other than those related to communications.

For existing cases in which a claim has already been filed, subsequent claims should be consistent with previous claims in the same case regarding where communication time is listed.

IMPORTANT CLARIFICATION:  When communication WITH THE CLIENT uses a family member or other person as a translator or conduit for that communication, the time should be claimed under Item 1.

 Thank you for making these adjustments in your compensation claim process.

eClaims Update

Effective October 6, 2007, the eClaims program will automatically send you an e-mail when your claim has been submitted for payment. If you would also like to receive the project comments, please contact ADI by clicking here.

Disclosure of Previously Prepared Materials in Claims

To promote efficiency in the preparation of filings, the courts and projects encourage use of briefbank and other previously prepared materials ("recycling"). Because recycling by its very purpose affects the amount of time an attorney spends, the courts have long required the projects to consider it in recommending compensation. In order to determine reasonableness and/or guidelines for work, the projects must know what was recycled and what was new. Usually the panel attorney is the best (or only) source of that information. Disclosure of certain kinds of recycling is therefore required.

Standard previous briefing form now required for all claims

The projects are now requiring that a standardized "recycling" form be attached to all claims, interim and final, whether or not the attorney has actually recycled previously brief materials in the case. The new uniform statewide form is on ADI’s website. It is intended to provide the needed information up front, so as to avoid delays, and also to be as easy to use as possible.

Guide to using the form

Substantial copying of previously prepared materials – and only that – must be disclosed. The projects and guidelines assume many kinds of commonplace materials have been recycled, and disclosure is not required for those. It is required, however, when significant copying may not be obvious. The underlying test is whether disclosure would affect the project’s judgment of how long it would take a reasonably experienced attorney to produce the document.

Examples of recycling that affect complexity and must be disclosed would be copying most or a substantial part of an argument and pasting AOB facts and/or arguments into a petition for review or habeas corpus. Examples of reuse that does not have to be disclosed would be relatively short passages on generalized, recurrent matters, such as statements of appealability, standards of review and prejudice, the elements of common offenses, and the test for ineffective assistance of counsel, probable cause, etc.

In assessing compensation, the project considers what was copied and how much new work the attorney did – for example, additional cases and analysis, as well as checking, updating, editing, and adapting recycled passages. The first time an attorney uses materials produced by another attorney reasonably takes more time for these functions than subsequent uses. The panel attorney should briefly explain such factors.

Compensation Claim Tips

Panel Attorneys should review the interim claim recommendations and comments

Each time a claim is reviewed by ADI and transmitted to the AOC for approval and payment, ADI prints out a copy of the recommendation and sends it to the panel attorney. The printout contains a spreadsheet showing the amount of time claimed for each service and the corresponding ADI recommendation. When ADI recommends payment for a service in an amount less than what the panel member claimed, ADI will provide a comment to explain the recommendation. For the following reasons, reviewing and maintaining a copy of this printout is valuable:

1. Accuracy: Check the printout against your claim form to ensure that the information transmitted to the AOC accurately reflects the amount you claimed. ADI checks each claim at a minimum of three times prior to sending the claim to the AOC; however, on rare occasions mistakes can occur.
   
2. An Opportunity for Additional Compensation: Look to see where ADI recommended a reduction in payment. Often, services rendered may be more complex than they might outwardly appear. Submitting additional justification or explanation of the services rendered at the time of the final claim may enable ADI to increase the recommendation for that service. Appointed counsel is encouraged to submit additional justification as soon as practical, when the issues and justification will still be fresh in the minds of counsel and the ADI reviewer.
   
3. Taxes: Record keeping for a small office is a monstrous task, and the added push of tax preparation makes the task more onerous. As much as ADI would like to offer assistance to our panel members, due to limited staff and resources, we are unable to conduct searches for panel attorneys to determine which cases may still require claims or to track the amounts paid at the interim stage. Keeping a copy of the interim claim printout will greatly assist in tax preparation and for tracking outstanding claim payments.

Reviewing the manual will inform you whether a particular service is compensable and guidelines for each service. Frequently, attorneys fail to receive compensation for work performed merely because they failed to include the service on the claim form.

Additionally, by reviewing the manual, you can ascertain whether the time spent for a service exceeds the guidelines. Whenever the time claimed for a service exceeds the guidelines, the attorney should provide a brief explanation of the overage when submitting the claim to ADI. Explanations of overages can enable ADI to pay the attorney in full despite the fact the time claimed exceed the guidelines.

The manual is in PDF format and, therefore, must be viewed using Adobe Acrobat (a free program). Also, the manual is indexed by subject matter; simply click on the topic you wish to view from the index and the desired page will automatically appear.

Brief Binding

The Appellate Indigent Defense Oversight Advisory Committee (AIDOAC) has directed that, for purposes of reimbursement of expenses, service copies of briefs and petitions normally should be stapled rather than bound. Copies filed in or served on the Court of Appeal or Supreme Court must still be bound, as required by the Rules of Court.

(Rules 8.204(b)(8), 8.360(a), 8.412(a) [briefs in Court of Appeal], 8.504(a) [petition for review], 8.520(b)(1) [Supreme Court brief on the merits], 8.384(b)(1) and 8.490(a)(1) [writ petition], and any rules incorporating those by reference.)

All service copies of a brief or petition (except the copies filed with the court) should simply be stapled; one staple is sufficient, and it need not be taped over. This change will significantly reduce your binding costs (and thus will pass on to the Judiciary a savings in the cost of appeals).