How much is too much? Estimating maximum caseloads for Texas lawyers representing criminal defendants

When the Texas Indigent Defense Commission issued its "Guidelines for Indigent Defense Caseloads" in January, your correspondent had little bandwidth to devote to the lengthy, detailed document beyond adumbrating the basics regarding what maximum recommended caseloads would look like. But I'd tacked the report onto my ever expanding summer reading list to examine this important document more closely, and when I did, it didn't disappoint.

The report was written by Dottie Carmichael and her team at Texas A&M's Public Policy Research Institute, combining several distinct bodies of research.

First, it compiled newly available data from counties and attorney self reporting which was mandated to be gathered under HB 1318, passed in the 83rd (2013) Texas legislative session. Nobody's done much analytical work with this dataset yet beyond what's in this report, at least that's been made public, but the attorney-level data now being compiled will only become more robust over time and can't help but influence public policy. If nothing else, counties for the first time can learn how many cases attorneys  in their jurisdiction are taking in other counties. A local attorney who may not appear to have an excessive indigent caseload may be way over the top when one considers cases across counties. Now counties can do so, and so can her clients.

The report also utilized individual attorney time-keeping studies, opinion survey tools, and a Rand-Corporation developed process for determining expert-opinion to estimate how much time attorneys should be spending as opposed to what they're doing now. That normative assessment builds substantially on a framework derived from the state bar's "Performance Guidelines for Non-Capital Criminal Defense Representation." Bottom line: Criminal defense lawyers spend far too little time investigating their cases or communicating with their clients, the study found. And they should be taking more cases to trial, perhaps a lot more, particularly in felony cases. (See the report for their detailed breakdown of the data, I'm only describing topline, summary impressions.)

It was pretty ambitious project, and they took a solid first stab at it.

Grits has a general policy of deferring to folks who are obviously much smarter than me on their issues of expertise. So, to explain the meaning of and context surrounding these guidelines, your correspondent cheerfully yielded the floor to Becky Bernhardt, who this year replaced Andrea Marsh as executive director at the Texas Fair Defense Project. Grits asked her to stop by to visit about the TIDC report and recorded part of the conversation for a podcast. Listen to it here:

Or, mercifully, as your correspondent has a face made for radio and a voice made for print, reader donations make it possible to provide a full transcript of our 18-minute conversation below the jump.

How much is too much? Estimating maximum attorney caseloads for Texas lawyers representing criminal defendants

Interview with Rebecca Bernhardt, Executive Director of the Texas Fair Defense Project, July 17, 2015.

Scott:               Hello. This is Scott Henson with a Grits for Breakfast podcast [recorded] on July 17, 2015. I’m here today with Becky Bernhardt from the Texas Fair Defense Project, and we’re going to talk about a report that came out earlier this year from the Texas Indigent Defense Coalition about guidelines for indigent defense caseloads.  I know it’s a very sexy topic, but Becky, thanks for coming to talk to me about this.  I promise it’s more interesting than the title sounds.

Becky:             I’m glad to be here.

Scott:               So, Becky, tell me about this report. [Read it here.] This has been years coming, gives a ton of new data that we’ve never seen before.  Describe what’s going on.

Becky:             Well, from where I sit, this is a really important report.  For several years, my organization, the Texas Fair Defense Project, has wanted counties to set caseload limits for lawyers taking appointed cases, indigent-defense cases, and one of the questions we always got was, “How do we know what’s a reasonable limit for a defense lawyer in Texas?”

Nationwide, we had these really old standards that had been set in 1974, basically, by a group of public defenders sitting around a table. But a lot has changed since 1974 in terms of criminal defense law and criminal defense practice.  And the, I guess, state of the science on how to establish what a reasonable caseload is has changed a lot, too.

So now we have this cutting-edge study to tell us what is the maximum caseload for each category of misdemeanor and felony, except for capital felonies, for adults in Texas. So we can now talk to the counties and we can look at individual lawyer caseloads for folks who are representing clients who cannot afford to hire their own lawyer, and say, “This is too many cases,” or, “You’re within the right guidelines.”

Scott:               So, the guidelines were amazingly low compared to what [some] Texas lawyers actually do, 236 Class B misdemeanors, which [for example] is a DWI.  Well, a DWI lawyer in Texas may take twice that many.  These are fairly moderate compared to what we see in the field.

Becky:             Well, it really depends on your practice.  Some of the lawyers who were involved in the study process said of the maximum caseloads, “This still seems like a lot to me.  This is more than I do.  I take fewer cases than this every year, and I work really hard.”  So I think it really depends, defense lawyer to defense lawyer, in private practice how many cases they take and how much time and energy they put into each of those cases.

The reason caseload limits are so important when it comes to public money is that we have a real problem with overworked appointed lawyers nationwide, not just in Texas, and when lawyers are taking two or three or four times more cases than what’s the recommended limit, we know at a certain point there’s no way that those clients can be getting adequate representation or effective representation.

Scott:               So part of this study was that for the first time, and this is something the legislature mandated, I guess, in 2013—is that right?

Becky:             That’s right.

Scott:               That attorneys actually begin keeping track of their cases in more detail and reporting to the Indigent Defense Commission, and so how does the individual reporting from the attorneys compare to the guidelines that were recommended?

Becky:             Well, the individual reporting is really very minimal.  All lawyers who take appointed cases in Texas are just required to tell the Indigent Defense Commission what percentage of their caseload for that year was appointed cases by jurisdiction, and it may also be by category.  I’m not sure about that; juvenile, adult, that sort of thing.  But that’s really it.  They just have to report that percentage.

Now, the counties report all of their appointment information; that is, what lawyers received appointments and how much those lawyers were paid.  But if you look at that data, it’s really funny-looking, because for all the public defenders on the list, what they were paid will always show zero, because the payment information from the counties is checks from the auditor or the treasurer.  It’s not salaries, so since the public defenders are all on salary, that report says no payment data.  It’s only folks who are paid on a voucher that show up.

Scott:               That seems like it could get fixed.

Becky:             It’s not helpful.  I mean, you can look those folks up in different ways to get the public information about their salary, but it’s inadequate in that way.  But what it tells you is what appointed lawyers are getting for payment, but I don’t feel like that was answering exactly, totally that question.

Scott:               Right.  Well, I just asked how do the appointment—or how do the caseload rates, I guess that you get from the county; it’s not the attorney reporting—

Becky:             Yeah, yeah.

Scott:               - compare with the guideline?

Becky:             Well, the truth is the data is all over the map, and part of that is there’s tons of lawyers in the system who take one to five appointed cases each year, so they don’t matter that much in the sense that they don’t handle most of the indigent defendants’ cases.

And then there’s a small percentage numerically at the top who are incredibly overworked, who—they’re likely that 90% or 100% of their caseloads are appointed, and they are two or three or four or even five times over this limit that was just published for 2014.

And then there’s a bunch of folks in the middle, and the thing that we don’t really know about the folks in the middle, ‘cause we just don’t have terribly accurate information, is when you put together their appointed cases with their retained cases, do they have an overloaded caseload or not?  Right now, we get the percentages from them.  It may say, “I take 40 misdemeanors, and that’s 25% of my caseload,” in the data, but that’s not terribly reliable information because we don’t actually know what their real caseload is in private practice.

Scott:               All right.  So give me some examples of attorneys who are far over caseload or problematically taking too many cases.

Becky:             Well, so, we don’t have a huge number of public defender offices in Texas relative to other states.  In other states, and one of the big motivators for these kind of studies is really overloaded public defender offices—and the one in Texas that really stands out is the Dallas County Public Defender.  So there are 11 lawyers in 2011 in the Dallas County Public Defender who carried over a thousand misdemeanors.  And the total or the recommended maximum, when you average the misdemeanor number, is—what is it?—220 or—

Scott:               Two-twenty-six.

Becky:             Yeah, 226.  So you can multiply that into a thousand and get at least four times the caseload limit.  And then, for their felony attorneys, they have lawyers who are carrying caseloads between 250 and 470 felony cases, so that is again multiples of what’s recommended in terms of the felony caseload.  It’s not quite as bad on the felonies as a county that was recently sued in California.  Fresno County was sued, and they had attorneys carrying around a thousand misdemeanors, or 650 to 700 felonies.  So not as bad as Fresno, at least on the felony front, but pretty darn bad.

Scott:               Put it on a tee-shirt, Texas, "Not as bad as Fresno!"  All right.  So the other interesting thing in this report is they actually did some fairly detailed assessments of how time is being spent on court-appointed cases; not just the amount of time, but how much time is spent on communicating with clients, negotiations or meetings, investigator time, court time.  Give us some of the highlights of what we learn from this analysis.

Becky:             Well, so, the big message from the different categories of time that they assessed was that lawyers are spending the bulk of their time in court currently, in terms of how they’re currently spending time, and they need to be doing a lot more investigation, and they need to be asking for jurisdictions to pay for independent investigators.  So the counties need to be paying for more attorney time to do investigation, and for the attorneys to hire or for public defenders to have bigger investigation staffs to do independent investigations.  That was the single biggest observation about time.

They suggested that, for felonies, they do 10 times more investigation, and misdemeanors, 13 times, which is to say that misdemeanors in Texas are hardly being investigated at all.

Scott:               I thought one of the most interesting points they made on that was that you really need an investigator in many cases because then, if you don’t have one, you don’t have anyone to call at trial.

Becky:             Right.

Scott:               The attorney can’t call themself.

Becky:             Right.

Scott:               And if they’re the one that did the investigation, and there’s no one who knows the information but them, then they can’t put themself on to rebut another witness.

Becky:             Right, we have an ethical rule as lawyers which is that you cannot simultaneously represent a client and be a witness, a key witness, fact witness, in your own case.  So if you do all your own investigation, and then you have someone on the stand who says something entirely different from what they said to you when you talked to them during the investigation, you have essentially become a witness in your own case, and you either have to recuse yourself and get another lawyer to represent your client so that you can be a witness to impeach that person, or you do ineffective representation of your client by not being able to effectively provide impeachment.

Scott:               Well, I know the latter happens.  Does it ever happen that the lawyer goes and gets another lawyer so they can be the witness?  I’ve never heard of that in my life.

Becky:             I think it sometimes can.  I know that they’re—you know, prosecutors make this mistake, too, so I have seen it happen in cases where a prosecutor is the only person who talks to a witness, and then ends up on the stand and another prosecutor has to take over.

Scott:               Right, but the prosecutors, of course, by definition have their own investigators.

Becky:             They do, and they tend to have more backup in their office, right? So they can do that a little bit easier.

Scott:               Right.  So, they not only assessed how people are spending their time now, but they had a couple of different methods for estimating how they should spend their time.  One of them, they just surveyed attorneys, and the other, they did this collaborative analysis; sort of a new-agey, Rand Corporation approach, consensus approach.  I’m not sure how to describe it.

Becky:             Yeah, they call it the Delphi panel, and it’s really considered the most reliable process for getting a group of experts on a subject together, and having them answer certain questions.  And so they got a group of experts from Texas, criminal defense practitioners representing different regions of the state, who went through the Delphi process to answer questions about how much time they think a defense lawyer who’s already qualified and experienced should need to do the different pieces of work on a case.  They separated it out into a case that pleads and a case that goes to trial, and so those are weighted differently, actually, when they do the final time analysis.

But what’s really good about this study is that it has added reliability, in that all those calculations from the Delphi panel, as it’s called, were compared against the survey of this broader group of practicing defense lawyers in Texas who did their own estimates of, “If you had your druthers, how much time should it take you to do all these tasks?”  And they came up with remarkably similar numbers.

Scott:               They were very close.  And just to mention what the survey numbers were, because I thought they were very interesting, the estimate was that currently they’re spending six hours per misdemeanor case, and the estimate was that it should be ten hours; that it should be four hours more.  To be honest, I’m not 100% sure that I believe that appointed attorneys are spending six hours on a misdemeanor case.  I think that seems unlikely.

Becky:             Well, there was probably a way in which there was some self-selection in terms of the attorneys who signed up to do the timekeeping.  I mean, first, you had to be willing to put in the energy to keep time, and it’s quite possible that folks who are very overworked and taking way too many cases—like way, way, way too many cases—didn’t wanna keep time and be part of this survey.

Scott:               Right. And then, for low-level felonies, which I presume is state jail and third-degree felonies—

Becky:             Yes.

Scott:               - currently they’re spending 11.8 hours per case.  The estimate was they should be spending seven-and-a-half hours more, or 19.2 hours per case, and they thought there should be significantly more attorney investigation, vastly more investigator time spent, and much, much more client communication on that one in particular - I guess that and the high-felony both - as well as more negations and meetings.  Those are the areas where they estimated that [attorneys] really should be doing a lot more than is currently happening.

Of the attorneys surveyed—and this is really, I think, the biggest difference between the survey and the Delphi method, probably—they thought really they should only be spending a relatively small additional amount of time on court time, and the Delphi method found that they should be spending lots more court time, because they thought they should be taking lots more cases to trial.

One thing I found interesting looking at this in a light of current events is how much time, 19 hours or 29.8 hours they’re estimating, should be spent on these cases for appointed counsel, and then we just read in the papers that Rick Perry has now spent more than $2 million for his defense in his criminal case, which is one third-degree felony and one first-degree felony, or is what he’s accused of.  So even if you—

Becky:             Yeah.

Scott:               Even if you took the combined 19.2, 29.8—

Becky:             Yeah.

Scott:               - so we get up to 50 hours, and that may be a best-case scenario and a should-be scenario, we would get 50 hours spent on an indigent client in that case.  It made me wonder if maybe we shouldn’t determine these standards by the average for the last 10 state officials who were indicted, and maybe [base standards on] what they paid their attorneys, and how much time their attorneys spent.

Becky:             I think that indigent defendants would come out a lot better under that deal.  I mean, just as a comparison, the Indigent Defense Commission got, for the first time ever, I think, just straight general revenue from the legislature in their budget.  And I think that number was around $4 million, so that’s about the cost of Rick Perry’s defense per year for this biannual budget.

Scott:               That’s right.

Becky:             For the whole state.

Scott:               Well, speaking of funding, let’s just talk a little more about that here to close out.  We just this session, for the first time, saw any general revenue money at all put in [to reimburse counties for indigent defense].  I think it might have been around $7 million total.  That could be wrong.  You said four.  I’m not sure which, but—

Becky:             I could be wrong, too.

Scott:               But something low, something in the single digits.  But they had claimed a need for something like $200 million—

Becky:             Yes.

Scott:               - or so.  So, since they didn’t get it, we just—what?

Becky:             Well, I mean, the counties keep chugging along.  The burden on the counties in Texas is, they pay about 86% of the cost.  In different states it’s done differently.  Some states cover 100% of the costs.  We’re one of the mixed states, but on the low end in terms of how much the state contributes.  I think there’s no doubt that if the state contributed more, there would be more money available for quality indigent defense.

I don’t think that means that the counties, if they tried a little harder, couldn’t find more money.  And there’s no doubt after this study that lawyer pay is a big issue.  If individual lawyers aren’t paid more, there’s no realistic way that you could have a full-time appointed practice and make a living with caseloads at the level that the state is now recommending that people have.  They just won’t make enough money to survive in private practice.  So that, I think, indicates a need for counties to put more money in their budgets for indigent defense if they really want people to have decent representation.

Scott:               And I think having more money for indigent defense has other benefits for the county.  I mean, we see in McLennan County in Waco where, really, the failure to provide adequate defense for all the bikers, for example, keep ‘em all in jail, and all of a sudden you’ve got the $50-a-day jail costs—

Becky:             Right.

Scott:               - that really would be resolved if everybody got their bail hearing in a timely fashion.

Becky:             Well, and it’s interesting that you mention jail, because most counties in Texas are spending an incredible amount of money on their jails, and a very tiny percentage of that, relatively, is their indigent defense budget.  If they had pretrial release reform, and their jail budget was shrunk—really in half for many of these places, it could be shrunk—that would free up a lot of resources to follow the Constitution.

Scott:               All right.  Well, is there anything else you wanted to mention while we got you here on this topic?

Becky:             I think we’re pretty okay.

Scott:               All right.  Well, thanks, Becky, for coming over to chat with me today.

Becky:             You’re welcome.

Transcribed by http://idictate.com. Edited for grammar and clarity by Scott Henson.