Caseload Overload

Monday's Houston Chronicle had an article from reporters Keri Blakinger and Zach Despart entitled "Harris County judges criticized over pace of court-appointed lawyer reform," detailing Rodney Ellis' and the rest of the Harris County Commissioners' Court's push to have a Managed Assigned Counsel (MAC) Program forced upon the Harris County Criminal District Courts.  (NOTE:  A copy of the article is on the Chronicle's paid content website at this link but I could not locate a copy of it on Chron.com.  If you don't have the paid website, you'll have to get a copy of Monday's paper or just trust me on this one.)

Harris County's felony judges have come under fire from Commissioner's Court members for not moving fast enough to abolish the longstanding practice of judges appointing lawyers to represent poor defendants.

The article details much of what I discussed in this post about the MAC back in July.  As I wrote then, the Harris County Felony District Court Judges by no means have rejected the idea of a MAC, but they have asked for more time to design how it would be implemented.  I also shared my multiple concerns about the initial proposal from the Texas Indigent Defense Counsel.  Several of the Felony Court Judges, as well as representatives of the Harris County Criminal Lawyers Association (HCCLA), have shared the same concerns.

Apparently, Rodney Ellis is not the patient type and has demanded that the Felony Courts blindly accept his ideas without having any say in how they will work in the years to come.  That's just foolish.  If the program is going to be effective and capable of dealing with the multitude of complex issues that go along with indigent defense in felony cases, then the District Court Judges would be crazy not to carefully evaluate all aspects of it.  Ellis just needs to calm down.

That being said, Ellis' strongest criticism of the current appointment system is that there are many attorneys who are carrying far too large of a docket, and that's fair if you are looking at things from a purely statistical standpoint.  However, it also begs the question: Why would an attorney intentionally overload his or her caseload?  Are these attorneys really just blindly accepting new cases for no reason other than they can?

The answer to that isn't quite so simple, and the reality is that many of these attorneys with overloaded dockets are taking on so many cases because they are trying to manage the archaic payment system put in place by none other than . . . the County Commissioners themselves.

In today's world, when people go to work, they normally get paid for that work.  They also get paid in a time period that is reasonably close to the time the work was done.  If one works a job where he or she is paid by the hour, a paycheck normally is paid at the end of every week or two.  If one works a salaried position, there are obviously scheduled payments for when that salary gets doled out.

In the legal world, attorneys usually charge a retainer that gets drawn on during the course of the representation.  A client may pony up a hefty retainer that gets placed in a trust, but the lawyer or law firm only takes the money out of the trust once that money is earned by working on the case. 

The bottom line is that the vast majority of people who work get paid for that work reasonably quickly.

But that's not the case with those of who do indigent defense in Harris County.

Before I start sounding too critical of the System, I will point out that I think that Harris County pays well for indigent defense.  Although it doesn't quite approach "free world" payment, it isn't too shabby and it does pay you for the work you've done (eventually).

However, the Harris County payment system dictates that an attorney doesn't get paid on a case that he or she is appointed on until that case has been finally disposed of, and that's a problem.

Let's say that tomorrow, I get appointed on a murder case that is extremely complicated.  As a matter of fact, let's just pretend that it is so complicated that I decide not to take any other cases while I deal with this insanely complex case.  Over the next month, I pour over lengthy offense reports, read cell phone data, watch scene videos, meet with my client repeatedly, talk to my investigator, conduct witness interviews, do scene visits, and attend a couple of court settings. 

Let's say that this one case is pretty much my one and only job for the entirety of the month.  By the end of that month, I have billed over $20,000 worth of legitimate, honest, hard work on this murder case.  It is now the end of the month, and I've got to pay my mortgage, credit card bills, child support, utilities, which should be no problem, right? 

Wrong.  That murder case is still easily a year away from going to trial.  With the backlog of cases and the lingering effects of Hurricane Harvey, in reality, it could be much closer to two or three years before going to trial.  In the meantime, that $20,000 worth of payment that I'm owed continues to sit in the Harris County coffers while I try to figure out how I'm going to make my mortgage and feed my kids.  I did my part, but we are going to have to delay payment on that for a significant amount of time.

So, what am I supposed to do?

Well, the answer to that is generally, sign on to take another case.

So, let's say I decide to sign up for a second case.  Fortunately for me, this one is far simpler.  It's just a crack rock case, a simple State Jail felony.  So, on day one, I get my case and I read the three-page offense report in court.  The case is straightforward and can be worked out, except for one thing -- the lab report on the alleged substance isn't in yet.  I can't plead my client out on a drug case if the State hasn't shown me a lab report proving to me that it is actually an illegal drug.

So, I reset it to wait for labs and I don't get paid on that case this month either.

So, I take another case.  And then another.  And then another. And then some more.  I'm loading up my caseload because I need to get to where I'm on a timeline where payments are coming in.  When I first became a defense attorney, I described how the system worked to my dad.  He likened it to a pipeline, noting that failing to keep the pipeline filled can lead to some pretty lean months.

The attorneys who are overloading their dockets are the ones trying to keep that pipeline flowing continuously, as anyone who dislikes being broke would.  They take the next case and then the next.  Most of those cases may need only a lab report.  Others may be as complicated as that hypothetical murder.  Either way, I will agree that an attorney carrying a tremendous caseload does provide for some pretty bad optics.

An exception to the "pay when the case is done" plan is for those attorneys that take "term" assignments.  They agree to be a Court's attorney of the day or the attorney of the week for a daily rate. For a term assignment, an attorney can be paid on the next pay period.  However, when an attorney is an attorney of the day or week, he or she can be assigned up to five new cases a day, and that doesn't help the caseload overload either.

If I need to get a payment and I need it by the end of the month, I could sign up to be the attorney of the week all month.  Let's say hypothetically, I get an assignment for four weeks straight, and I pick up the full five cases every day.  Suddenly, at the end of the month, I have 100 new cases.

Judges have the power on a case-by-case basis to approve interim vouchers.  If an attorney has worked his butt off on a case and it gets set for trial six months down the road, most judges will approve an attorney getting paid for the work done up to that point.  I can honestly say that I have never been turned down by a judge when asking for an interim payment during that time period.

However, it is definitely not the norm.

The solution to this problem is simple: let attorneys get paid for the work that they do as they do it. 

When the system of not-getting-paid-on-a-case-until-it-was-over was developed, payment vouchers and time logs were all handwritten.  Now, it is computerized.  Making sure that lawyers aren't double billing for hours already claimed and identifying time conflicts can be done with decent software.  It is my understanding that attorneys who do appointed CPS work have the ability to "bill as they go," so why can't those of us who practice indigent defense?

It would definitely have a strong and immediate impact on those attorneys who overload their dockets.  There would be a financial motivation to sit down and focus on a case rather than focusing on getting the next case.  The pipeline methodology of managing a law practice would no longer be relevant.  In theory, cases could be resolved more quickly and the quality of representation would improve as a whole.  There wouldn't be pressure to resolve a case for financial reasons.

In short, it would address many (but not all) of the concerns the Commissioners have listed when advocating for the MAC. 

Quick Additional Thought on Indigent Defense

One thing that I thought of after I finished last night's post was the timing of vouchers.

Since I've been practicing on the defense side, the rule was that an attorney could not submit a voucher for payment on a case until that case was disposed of.  Theoretically, an attorney could work on a case for well over a year and never get paid for it until it was over.  Under that same theory, an attorney could have no money in his or her bank account, while the County owed him thousands of dollars in fees.

This made a bit more sense prior to vouchers becoming electronic.  Previously, attorneys would have to handwrite out the case number, name, court, and manually write down all hours and court appearances.  That voucher then got submitted to the Court for approval and then sent on to the Auditor's office (who would presumably enter the dates into a computer).  Once entered into the system, the computer would check to make sure that an attorney had not double-billed or tried to claim payment for too many cases in a single day.

That was a pain in the butt, so it was understandable that the rule was that vouchers only were to be filed once the case was disposed of.

That being said, judges routinely allowed for interim vouchers to be filed upon request of the attorney.  If a case was set for trial, but not for another several months, for example, every judge I ever spoke with had no problem at all with allowing me to file an interim voucher.  All I had to do was ask.

But vouchers are now electronic, which makes life easier for all involved.  Attorney seem to like it better.  Conflicting time entries are caught instantaneously.  Judges can approve them easily and ship them over to the Auditor's office electronically.  It has drastically improved the efficiency and ease of keeping records straight, and it has probably saved a few trees in the process.

In the aftermath of Hurricane Harvey, trials are now routinely being pushed into 2018.  Dockets are also staggered further out.   

I would propose that attorneys be allowed to file interim vouchers whenever they need to, without having to first seek judicial approval.  It is my understanding that those attorneys who take appointments on CPS cases get "paid as they go," and there is no reason that can't be the same for criminal defense attorneys.  Electronic filing of vouchers should have eliminated any confusion or logistical argument against that.

If I'm working on a complicated murder case and I spend two weeks straight going over records and interviewing witnesses, it defies logic that I would have to wait months before being able to seek payment for work already done.  I'm not familiar with any other industry that works that way.  There is no real reason that indigent defense should be handled differently.

Rethinking Indigent Defense

Tomorrow, the Indigent Defense Committee of the Board of Criminal District Court Judges are having an open meeting to discuss potential changes for "reforming appointed attorney fees."  This is huge news.  Mainly, because I had no idea that there was an Indigent Defense Committee of the Board of Criminal District Court Judges.

The meeting is at 2 p.m. in the Ceremonial Courtroom of the Civil Courthouse on the 17th floor.  Sadly, I will not be able to attend due to a prior commitment, but I did want to share a few thoughts that I had about the way things are currently running in a post-Harvey world.

First, a little background.

The way payment works for attorneys who represent indigent defendants depends on what degree of crime the indigent client is charged with.  Those attorneys representing defendants charged with State Jail and 3rd Degree Felonies get paid $125 for every court setting they appear for, and $40 an hour for all out of court work.  Second degree felony cases merit a $175 fee for court settings with a $60 an hour payment for out of court hours.  First degree felonies get $225 for a court setting and $85 for out of court hours.

The scuttlebutt is the the Indigent Defense Committee (IDC) is strongly leaning toward increasing the pay schedule for out of court hours, but eliminating the flat fee for court appearances.  That is not an unheard of proposition.  It is my understanding that Ft. Bend and Galveston counties do things this way, although I don't know if that is accurate because I don't handle appointed cases outside of Harris County.

My guess is that if this truly is the plan the IDC is looking at, it will meet with some resistance from those who take indigent appointments.  Appointed attorneys tend to like having those court settings because they obviously give larger payouts for less work.  For instance, an attorney can walk into a courtroom on a 3rd degree case, talk briefly with the prosecutor, sign a reset and leave in 20 minutes or less.  Under the current schedule, he or she would make $125.  If he or she was being paid on the hourly scale (at the current rate), he's get paid less than $20.

Just because the appointed attorneys won't be fans of the hourly basis, however, doesn't mean that it is necessarily a bad idea -- especially when it comes to "in custody" cases under the flood conditions.

Right now, things are getting relatively back to normal when it comes those Defendants who are out on bond.  Courts are rescheduling them at intervals similar to those before the flood.  Unfortunately, things are far from normal when it comes to the in custody cases.  Due to safety concerns, all court appearances for "in custody" defendants must be held at the jails.  The males have their appearances at the 701 N. San Jacinto facility while the females are at 1200 Baker Street.

To describe these "jail dockets" as chaotic is a massive understatement.  Due to jail personnel and space constraints, only two courts at a time may operate a jail docket.  Two have a morning shift and two have an afternoon shift.  To make matters utterly confusing, these dockets rotate every several days, so there is no set day of the week when an attorneys knows a certain court will be holding docket. 

The dockets are crowded.  The attorneys typically pool in the infamous Law Liberrry Library, down the hall from the rooms being used as "courtrooms.  In the Library, defense attorneys discuss the cases with prosecutors before stepping out and asking one of the bailiffs to bring an inmate to the courtroom for discussion.  Understandably, there is a backlog.  Only a handful of defendants can be brought out of the holding cells at a time, and the attorneys are not allowed to speak to them anywhere other than the makeshift "courtroom."   Some attorneys wait for hours to talk to their clients.

Attorney Vic Wisner works his triceps in the Law Library while waiting to 

talk to his client.  NOTE:  This was taken before the bookshelves were all 

covered with tarps due to a mold outbreak.

In my opinion, the idea of having regular dockets for in custody defendants at the jail is a foolish waste of time, unless there is a strong indication that a case is going to plead out.  Standing around, waiting to talk to a client, only to reset him is not a productive use of time, nor space.  Unfortunately, due to the bigger payout of a setting fee, attorneys who represent indigent defendants have no financial incentive to reschedule these settings.  Regardless of whether or not anything is accomplished, a setting fee is a setting fee -- even if you are just signing a reset.

If the IDC does change to the hourly fee structure, attorneys representing indigent defendants are more likely to reschedule these non-productive settings, because they will make the same amount of money by working on the case outside of the courtroom.  They can do a jail visit, some legal research, witness interviews, or something that might actually help resolve the case.  Unless a defendant needs to see a judge, there is almost no reason to have them at these jail dockets.

One suggestion, that I do have is that the District Courts have actual settings for these in custody defendants in the courtrooms without the Defendants being there.  Judge Velasquez recently scheduled one of my in custody cases on her docket in the 183rd District Court without having my client present and it was extremely productive.  It was not a hectic pace.  I actually had a chance to speak to the prosecutor on my case and go over some evidence that I wanted him to look at.  He had the time to make note of what I showed him and write down some specific discovery requests I had.  

I relayed everything that happened in court to my client later that day, and he was happy to hear about it.  That meeting with the prosecutor never could have happened in one of the jail dockets.  I wish more courts would do this.  If the meeting results in an agreement that resolves the case, it can be set on the next available plea docket.

Back to the fee schedule topic, I do believe that the hourly system will encourage attorneys to do more work out of court to resolve their cases.  It will also discourage attorneys from taking on too many cases for the sole purpose of increasing the number of their appearance fees.

But that may also be a double-edged sword.  

Attorneys who no longer have a financial incentive to increase their court appearances will spend more time in the office, working on the cases that they already have.  As a result, I predict that attorneys will put their names in for new appointments less frequently.  If the money paid for working from the comfort of my office is the same as going to that God-forsaken jail docket, I know which one I would choose.

So, basically, I see pros and cons to changing the payment system.

But, I do hope that the powers that be will consider doing more cases like the 183rd.