Thursday, January 21, 2010

How to be a Public Defender Revolutionary, Part III

Part III: Interpreting Caseload Standards

In earlier installments (Part I and Part II), I discussed the recent ABA Ethics Opinion that gives public defenders the power and duty to refuse excessive caseloads, and why "caseload standards"  numbers are arbitrary but useful as an absolute maximum and a starting point for more in-depth caseload analysis.

Why care about  ABA opinions and policy standards that are repetitive and tedious, when they have thus far failed to reform public defense?  Because I am suggesting to you--my brother and sister public defenders--that one day many of you will reach a breaking point.  That you will realize that you have too much to do, and no matter how you learn to play the system and fight for the clients, that you can't do it all, and then you'll realize that some of your clients may be suffering and you are as well.  You may end up standing in your bedroom one weekend, trying to run through the list of upcoming trials (burglary next week, then assault 2, then back to burglary and then that bullshit stolen vehicle one and then the vehicular homicide and you know there's another one and you can't remember it) twitching.  Oh wait, that was me.

When you reach this point, your options have been traditionally pretty limited: 1) leave the job; 2) have a mental breakdown; 3) stay in the job a broken, lesser version of yourself.

I have seen many of my friends and colleagues choose #1, #2 or #3.  The PDs who choose # 1 usually end up the happiest, from the ones I've known, but leaving a profession shouldn't be the only way to survive it.  I'm not saying every public defender faces this crisis or these choices, but unless you're in the federal system or one of the boutique defender agencies, you are going to get close.  I'm close to #1 at least once a week, I may have crossed over #2 for a bit of time, and I fight against becoming #3 every day.

None of these options are good for us, but they're bad for our clients, too.  I am going to suggest that there's a 4th option:  When you reach the breaking point--and you'll know it when you see it--you refuse to accept additional cases. When you reach this point, you could go to your supervisor, boss or judge, go off  half-cocked and say, "F you, I'm not taking any more," and see how it sorts out.  But the better way to accomplish this is to know your shit.  That is, handle the workload crisis like the lawyer you are--know your caseload numbers, know how cases are being counted, and know the variables for calculating whether your caseload is reasonable.

First, find all of the standards that apply to you.  Like the plethora of studies that document the sorry state of public defense but achieve no change, there are loads of "caseload standards," related commentary, endorsement and analysis--and no mechanism for enforcement.  Rather than wait for the standards and studies writers to fix this for us, why don't we defenders take the tools they've given us, and get this PD revolution started!

To find the standards that apply to you, start locally, and move outward.  For example, in analyzing my office's caseload, I found standards by the ABA, NACDL, WSBA, WDA, a Resolution adopted by My County and a Union Contract that referred to the County Resolution, WDA and ABA standards.  Many counties and states have not adopted official standards, and if you can't find local ones, use the national standards.  If the national standards lack specificity, refer to the WDA standards as their commentary is thorough and nationally recognized.

How do you interpret the numbers?

Look at how many cases you have been assigned in a year.  If you work in a PD agency, this number is findable.  If the number is undeniably above the flat number of the relevant caseload standards (either your state or local standards, and if none of these have been adopted, then use the national standards),  then you can skip to the next installment of this series.

But let's say the numbers are close.  Like your standard says 150 felonies per year, and you're within that range, but you're still dying.  Obviously, you can't do 150 murder cases a year, so there has to be some interpretation built into this rule.  Usually if you're dying, it's not because you are lazy or incompetent (because these types don't care if they're dying) you just have to analyze your caseload more critically.


How are the cases counted?

Are they fudging the numbers when attorneys are transferred to different duties? 

Is the caseload weighted?  That is, is a murder case being counted as 1 case or a certain number of case credits?  What about three strikes or other cases that carry life in prisonment? Sex cases?  The second-degree theft that has 10 boxes of discovery?

Does your office have enough secretaries?


Is commute time involved in traveling to court or jail?

Are the prosecutors plea standards stringent?

Do you have to cover a duty assignment in addition to your caseload?

All of the above factors are addressed and discussed in various standards and studies of the standards.  It is entirely possible that you are assigned 80 felony cases per year, and have an unreasonable workload.  Of course, you can tell that yourself by the twitch you've developed, but it helps to have the numbers to reinforce that twitch.

In the next installment, I'll cite to specific examples of the factors outlined above and demonstrate how you can prove that your workload is unreasonable.

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