As of this writing, California employs a three tier payment scale for appointed counsel in the Court of Appeal: (1) all assisted cases are paid at $95 per hour; (2) independent cases are generally paid at $105 per hour; and (3) independent jury trial cases involving murder and major sex offenses and jury trial cases with records in excess of 3000 pages are paid at $115 per hour. Appointed counsel are also entitled to reimbursement for reasonable and necessary expenses.
A. HOW TO COMPLETE A CLAIM FORM.
The preparation of a compensation claim is relatively self explanatory and is done online. Before preparing your first claim, contact the project to obtain accesss to the claims website. Once you have access, go to https://new.lacap.com/eClaims/login.cfm. Your username is your State Bar number. Next, you will create your password. In the drop-down menu on the first page, select Sixth District Appellate Program. On the first eclaim page, enter the case nunber in the "search text" box. Then select the appropriate action in the "select action" drop-down menu. The claim form, with 13 different sections, will open..
Counsel must bill their time within the various categories specified on the claim form. Hours must be billed in tenths. There are strict rules about what can be claimed on each line. If in doubt about where to claim your time for a certain task, contact your SDAP buddy. If you claim time on the wrong line, your claim may be unsubmitted and you will need to redo it. This will delay payment. Accordingly, it is best to ask any questions in advance of submitting your claim. Additionally, the link to the Statewide Claims Manual is on SDAP's homepage. This resource can answer many questions..
In order to ensure timely claim processing, the following principles should be followed. As a cardinal rule, attorneys should provide an explanation for any line item which is either out of the ordinary or over guidelines. In particular, any item listed as “other service” or "other communication" should be explained unless its nature is self evident. For example, “telephone call to Attorney General” need not be explained whereas “Interview with Mr. Smith” requires an explanation.
Similarly, a category of service must contain appropriate itemization. For instance, if an attorney conducts a habeas investigation by interviewing several witnesses, it is not sufficient to claim 7.0 hours for “witness interviews.” Rather, the length of each interview must be specified (i.e., 1.0 hour with Mr. Jones, 1.0 hour with Ms. Black, etc.).
The same rule holds true for multiple pleadings. If you have filed three motions, you should specify the time for each motion. This information should be included in the explanation section.
SDAP encourages frequently communicate with your clients, trial counsel and other relevant people connected to the case. We often approve communication time in excess of the guidelines’ 3.5 hours. Nonetheless, to obtain an award over guidelines, you must provide an explanation for the extent of the communications. Your explanation should list the number of letters and phone calls exchanged and with whom. If a family member provided assistance in communicating with the client, this time is compensable so long as it is detailed in your explanation.
Reconciling the attorney’s reported record length with the length listed at our office is a common time-consuming task for SDAP staff. Our page count for the initial record will appear on the "Transcripts" page of the claim form. If your page count is different, you must explain why. Absent your explanation, we will presume our count is correct.
In calculating the length of the reporter’s transcript, do not blindly look at the page number at the end of the transcript. Several court reporters use the block numbering method whereby each volume is listed as 250 pages whether or not it contains that many pages. Sometimes, an accurate page count is possible only by counting the length of each volume and adding them together.
Review of the preliminary hearing transcript is not compensable unless it is relevant to a potential appellate issue. If you believe compensation for reading the preliminary hearing transcript is appropriate, you must explain why.
If you have augmented the record, the additional pages must be added in the "Corrections, Augmentations, Other" section at the bootm of the "Transcripts" page.
Ordinarily, there is no reason to use the “other” box for record length since the record on appeal generally consists of only the clerk’s and reporter’s transcripts. If you use the “other” box, you must provide an explanation for the listed item. Review of items outside the record on appeal should not be included in the “other” box; rather, it should be listed under “other services.”
With respect to your claim for briefs, any item over guidelines must be explained. If a particular issue took more time than would be apparent to a reviewer, you must provide an explanation. For example, the issue may be novel, and you may have performed out-of-state research which did not yield results. Or, if SDAP provided a brief on point, you may have needed to make wholesale changes because of the case facts or intervening case law.
For information concerning the use of associate counsel and law clerks, please read read the Appellate Indigent Defense Oversight Advisory Committee (AIDOAC) guidelines for appropriate use of associate counsel and law clerks.
Use of Previous Briefing Form Now Required for All
In 2003, panel attorneys statewide were required to use the “Use of Previous Briefing” form to indicate whether you have used prior briefing to a substantial extent when preparing any argument in the current case.
Please note that substantial usage does not include re-using passages on general principles such as standards of review or prejudice (the guidelines assume experienced attorneys will have access to and use such materials); rather, the substantial use refers to the argument itself. Similarly, re-use of basic black-letter caselaw as a foundation for the argument is not considered substantial recycling of the prior brief.
Where a significant portion of the argument is taken from prior briefing, you should so indicate and explain roughly how much was prior briefing and how much was new. An example: “Argument I: about 40 percent was copied from previous briefs I have written.” Where appropriate you could also explain that a number of the cases discussed were new, as well as describe significant new factual material.
Finally, if you have any questions about how to complete a claim, call your SDAP buddy before you submit the claim. If you complete the form correctly, the payment of your claim will be expedited.
B. INTERIM CLAIMS.
An interim claim may be submitted once the opening brief is filed. Briefs that raise no issues are the exception. Generally, you can submit only one interim claim. Pursuant to a rule adopted by the Appellate Indigent defense Oversight and Advisory Committee (AIDOAC), 5 percent of the interim claim is “held back.” This procedure ensures that overpayment does not occur if, on review of the final claim, it is determined that the interim claim should have been reduced. Approved expenses are paid in full.
(NOTE: Additional interim claims re currently permitted in response to the COVID-19 pandemic. Please see the statewide memo sent by the projects for more information. You can also request this memo from your SDAP buddy.)
In rare cases, an interim claim may be submitted prior to the filing of the opening brief. In cases with records of 7500 pages or more, a first interim claim may be filed upon completion of record review, and a second interim claim may be submitted after the opening brief is filed. Finally, in exceptional circumstances, the project director may authorize payment of an early interim claim.
An interim claim may not be submitted when filing a Wende, Serrano, Ben C., or Phoenix H. no-issues brief. Instead, a final claim may be submitted 30 days after filing the no-issues brief. If the court specifically asks for briefing, counsel may file a supplemental final claim. If counsel elects to file a claim before the court issues its opinion, time may not be claimed for reading the opinion or for any work done after the claim is filed unless the court requests supplemental briefing.
C. FINAL CLAIMS.
A final claim may be submitted upon completion of all services or when the panel attorney has been relieved.
An attorney who is relieved before the opening brief is filed may be compensated under certain conditions. Payment for reasonable services may often be appropriate if the attorney was relieved for reasons beyond his or her control. For example, if the client unexpectedly retained counsel, or the attorney suffered a catastrophic accident and could not continue representation. If the reason was personal and for the attorney's own benefit - e.g., taking a new job or eliminating some cases because of a heavy workload - usually no compensation is awarded. An exception may be made for work that has actually saved successor counsel time, such as an augment request granted, a draft statement of case and facts, or research notes provided to new counsel. The time saved is the measure of the award.
There is a time restriction for filing a final claim. The presumptive deadline is 180 days following issuance of the remittitur, after which a case is considered closed and further payment is not expected.
D. SUPPLEMENTAL FINAL CLAIMS.
Supplemental final claims may be filed with the court's or project's permission upon a showing of good cause. Such circumstances might be: (1) a mistake by the project or the JCC in processing the claim; (2) substantial, unforeseeable services rendered after the remittitur issued; (3) adjustment following an AIDOAC audit review; or (4) additional briefing after a petition for review is granted and the matter is transferred back to the Court of Appeal.
E. SDAP PROCESSING OF CLAIMS.
Upon receipt of a claim, SDAP clerical staff will prepare a computer worksheet. If the claim has errors or omissions, the panel attorney will be contacted for clarification or additional information. The claim and worksheet are then routed to the SDAP staff attorney assigned to the case.
The staff attorney reviews the claim and determines reasonable compensation. This determination is then reviewed by the executive director or, in his or her absence, anouther staff attorney. The second reviewer makes the final compensation determination.
If a cut of five hours or more than 10 percent of the claim is anticipated, SDAP provides notice to the panel attorney. Generally, notice is provided in an email, which specifies the nature of the proposed cut. The panel attorney then has an opportunity to provide written comments regarding the proposed cut. Usually, the panel attorney is given five days to respond. If no response is received, the proposed cut stands. If a response is provided, the executive director may reduce or eliminate the proposed cut after consultation with the staff attorney who handled the case.
Once the award is finalized, the claim is electronically submitted to the JCC. The review of the claim by the JCC can take 30 days or more. When this review is complete, the JCC transmits a payment order to the state controller. Following payment order transmission, a panel attorney should receive payment within 14 days. The panel attorney will recieve an email verifying the claim has been submitted. Attorneys can log onto the claims website and review the approved claim.
F. THE GUIDELINES.
When making fee awards, SDAP employs AIDOAC guidelines, which can be found on this website .
The guidelines provide only a presumptive range for reasonable compensation. In a proper case, SDAP has full discretion to make an award which is either below or above the guidelines. Nevertheless, the vast majority of claims are paid within guideline figures.
When applying the guidelines, the test used by SDAP is the amount of time which should have been expended by a reasonably experienced appellate attorney. It is assumed that all appointed counsel are familiar with the general rules of appellate procedure and the standard substantive rules of law. Thus, if a task in a particular case would be performed in one hour by an experienced attorney, only one hour of compensation will be awarded even though the guidelines’ figure may be higher.
Similarly, performance of an unusually difficult task will result in compensation above the guidelines. For example, if an issue of first impression requires extensive out-of-state research, an award over guidelines will be made.
G. THE AIDOAC AUDIT PROCEDURE.
In 1994, then Chief Justice Malcolm Lucas authorized creation of AIDOAC. As presently constituted, the AIDOAC committee has a judge from each appellate district, two project directors, and two practicing appellate lawyers. Personnel from the JCC’s Trial and Appellate Court Services staff the committee.
AIDOAC's primary charge is to review the quality and cost of legal services performed by appointed counsel and to make recommendations to the Chief Justice and administrative presiding justices of the Courts of Appeal regarding the appointed counsel system's functioning. AIDOAC closely monitors the compensation awards, reviewing randomly selected final claims during quarterly meetings. If a panel attorney’s claim is selected, he or she receives written notification and can submit a response.
Prior to the committee meeting, each member reviews a number of final claims along with the pleadings and any response submitted by the panel attorney. Members may make recommendations for a reduction of the award or to restore time cut by the project. Any such recommended change must be approved by a majority of the committee.
If a reduction is made, the panel attorney will receive a letter stating the reason for the reduction and the amount. Reimbursement is then obtained by deducting from the attorney’s subsequent claims.
If AIDOAC determines that a reduction made by an appellate project should be restored, the panel attorney receives a letter about the decision. After receiving a copy of the letter, the appellate project will generate a payment order for the restored amount, which is transmitted to the JCC and then the controller.