Colorado Court of Appeals Workload Analysis

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1 September 15, 2005 Jointly Reported by The Colorado State Court Administrator s Office 1301 Pennsylvania St., Suite 300 Denver, Colorado And Daniel J. Hall, Vice President National Center for State Courts Court Consulting Services 707 Seventeenth Street, Suite 2900 Denver, Colorado 80202

2 September 15, 2005 Court of Appeals Workload Analysis Advisory Committee Holly Dahm, Judicial Assistant The Honorable John D. Dailey, Appellate Court Judge John Doerner, Clerk of Court, Court of Appeals Michele Loudis, Deputy Chief Staff Attorney The Honorable Marsha M. Piccone, Appellate Court Judge The Honorable Daniel M. Taubman, Appellate Court Judge Project Team State Court Administrator s Office, Division of Planning and Analysis Sherry Kester, Director, Division of Planning and Analysis Gregory Tooman, Management Analyst Steven Vasconcellos, Management Analyst National Center for State Courts Ann Jones, Ph.D., Senior Court Research Associate Christopher T. Ryan, Senior Court Management Consultant Willett R. Willis, Principal Consultant, Innovative Technology Solutions, LLC National Center for State Courts, September 2005 i

3 Table of Contents Introduction... 1 Study Methodology... 5 Defining the Work of the Court of Appeals... 5 Study Overview... 7 Why Measure Activities?... 8 Recording Data for the Study... 9 Study Implementation Results The Creation of a Workload Model The Judge Workload Analysis Standard Setting Focus Groups Determination of the COA Judge Work-Year Judge Overtime Analysis The Final Judge Workload Model Staff Attorney Model Determination of the COA Staff Attorney Work-Year Calculation of Cases Assigned to Staff Attorneys The Final Staff Attorney Workload Model The Clerk of Court s Staff Conclusions/Recommendations Next Steps, Caveats, & Concerns Appendix 1: Study Case Types and Activities Appendix 2: Study Logs Judges Staff Attorneys Clerk of Court and Other Staff Law Clerks and Judicial Assistants Appendix 3: per Case Calculations and Workload Model per Case Calculations: Judges Criminal: Direct Criminal: Rule Civil: General Civil: Domestic Civil: State Agency Industrial Juvenile Judge Workload Model per Case Calculations: Staff Attorneys Criminal: Direct Criminal: Rule Civil: General Civil: Domestic Civil: State Agency Industrial: Workers'Compensation National Center for State Courts, September 2005 ii

4 Industrial: Unemployment Insurance Juvenile Staff Attorney Workload Model per Case Calculations: Clerk of Court Staff Criminal: Direct Criminal: Rule Civil: General Civil: Domestic Civil: State Agency Industrial: Workers'Compensation Industrial: Unemployment Insurance Juvenile Clerk of Court Staff Workload Model National Center for State Courts, September 2005 iii

5 Introduction The Colorado Court of Appeals (COA) is the state s intermediate appellate court. It was created by statute (see Section 1, Article IV of the Colorado Constitution and et seq., C.R.S. 1998). Accordingly, jurisdiction is limited to areas specified by statute, together with the inherent powers granted to all courts in the state. In cases of first impression, or where existing law is not dispositive, the COA is a law-making court. In general, the COA is the first court to hear appeals of judgments and orders in criminal, juvenile, civil, domestic relations and probate matters. In addition, the COA has specific appellate jurisdiction over decisions originating from a number of state administrative boards and agencies, including the Industrial Claim Appeals Office. Its determination of an appeal is final unless the Colorado Supreme Court agrees to hear the matter. The mission of the COA is to provide the citizens of Colorado with clear, impartial and timely resolution of appealed orders and judgments as provided by law. There are currently sixteen judges on the court of appeals, one of whom serves as Chief. The judges sit in panels (or divisions) of three, the composition of which is determined by the Chief. COA judges serve eight-year terms. Pursuant to C.R.S. (2000), each judge employs one law clerk and one judicial assistant. In addition, 16 staff attorneys assist the judges in reviewing cases and drafting opinions. The COA sits in Denver, but divisions occasionally travel to hear oral arguments in other parts of the state. The court has expanded over the years to address caseload growth and backlog. The court last expanded from 10 judges to 16 in Since then, caseloads have continued to rise (see Figure 1), and the backlog of pending cases has been slowly increasing (see Figure 2). Caseloads have gone up approximately 37.5% since the court was last expanded. Over the last ten years alone, the criminal caseload has risen 71%. In addition, statutory changes and increased case complexity across all case types since the last court expansion have led to a greater overall workload for the judges and all of the staff who support them. The COA has absorbed this additional workload without the aid of additional support. In fact, clerical staff was cut during a recent period of branch-wide layoffs. National Center for State Courts, September

6 Figure 1: Filings and Terminations for the Court of Appeals, FY Case Trend - COA Last Court Expansion y = x R 2 = Fiscal Year Cases Filed Cases Terminated Power (Cases Filed) Projected # of Cases Figure 1 shows filings (in blue) and terminations (in pink). Filings have increased 31.45% since the court s last expansion. A trend analysis for filings (in red) shows continued growth. National Center for State Courts, September

7 Figure 2: Court of Appeals Pending Caseload and Trend line, Pending Caseload 3,000 2,900 2,800 2,700 y = x R 2 = ,600 2,500 2,400 Jul-03 Sep-03 Nov-03 Jan-04 Mar-04 May-04 Jul-04 Sep-04 Nov-04 Jan-05 Mar-05 May-05 Figure 2 shows the pending caseload for the Court of Appeals, with trend line (in black). As caseloads rise, judges and staff can and do work faster. But ever rising caseloads will ultimately lead to a reduction in the amount of time spent on each case. So that increases in workload and caseload do not begin to impact the court s ability to meet constitutional requirements and maintain the public perception of fairness, the COA requested that the State Court Administrator s Office Division of Planning and Analysis (P&A) perform a workload analysis, and create a workload assessment model. P&A then contracted with the National Center for State Courts (NCSC) to complete the study. P&A analysts and NCSC Senior Court Management Consultants made up the core of the project team. The purpose of the workload assessment model is to provide the judicial leaders in Colorado with an objective, uniform, and realistic methodology for determining judgeship needs and resource allocation for the COA. Developing the model requires gauging the judge and staff workload associated with the processing of cases and the writing of judicial opinions. The value of a workload model lies in providing uniform and comparable measures of the need for judges and staff while ensuring that budget requests are made on a sound and methodologically consistent basis. National Center for State Courts, September

8 In order to guide the process of developing workload assessment tools and interpretation of results, the project team organized an advisory committee made up of COA judges and staff. The purpose of the committee was to approve of the methodology, timeline, and products of this study. The workload analysis had four major phases: 1. The development of materials that define COA work for judges and staff of all types; 2. A time study, in which staff and judges were asked to use the definitions provided in step (1) to describe their daily activities, and self-report how long those activities took to complete; 3. An evaluation of time study results by focus groups of judges and staff attorneys, who were asked to validate the study results based on their knowledge of the court and its practices. The groups also discussed whether there was enough time built into current court practice to complete tasks to an appropriate level of proficiency and quality while addressing the current caseload; and 4. The development of a Court of Appeals Workload Assessment Model, drawing on the objective data from the time study as well as input from judges and all staff concerning actual case processing practices, while maintaining a clear focus on the quality of justice. The model was not only designed to measure the current practice of the COA, but also provide a dynamic method of continuous periodic reassessment of workload, as caseloads and other variables that affect workload change. National Center for State Courts, September

9 Study Methodology Defining the Work of the Court of Appeals P&A, in concert with NCSC and the Chief Judge of the Court of Appeals, convened a project advisory group made up of judges, staff attorneys, law clerks, judicial assistants, and the COA Clerk of Court. The initial task of the advisory committee was to develop a list of activities that make up the work of all judges and staff at the COA. The activities list had two major requirements: The list had to be comprehensive of work at the COA, involving every aspect of case and non-case work; and Each activity was self-contained and orthogonal, so that each activity described a unique work-action, and could not be confused with any other work-action. The full list that was developed appears in Appendix 1 of this report. For the purposes of organization, the list was broken down into three case phases Case Not at Issue, Case at Issue, and Post-Decision Matters. The list of activities was comprehensive of all work at the COA, therefore, not all staff or all judges were expected to engage in all of the listed activities. For example, the staff of the Clerk of Court s Office were primarily involved in work under the phase Case Not at Issue, but were less likely to complete activities under Phase II, Case at Issue. By the same token, most judges and staff attorneys were not involved in Phase I, with the exception of those assigned to the Motions Division, but were heavily involved in Phase II. Because a workload analysis includes all work, not just case work, a list of non-case activities was developed. The list includes both administrative duties and community outreach functions that members of the COA are expected to perform. A list of non-case activities also appears in Appendix 1. In addition to the definitions of work-related actions, the committee considered three types of case characteristics important in influencing the amount of time spent on case work: National Center for State Courts, September

10 Pro se litigant. The committee felt that cases involving pro se litigants take longer to complete than those in which all parties are represented by counsel. Authorship. Decisions at the COA are the product not of one judge, but three judge panels or divisions. Although individual judges draft opinions, the final work product must be closely reviewed by the other judges within the division. In addition, all COA judges are required to review the opinions of their colleagues when opinions are proposed for publication. Similarly, staff attorneys write recommended dispositions, and review the work of others. This collaborative process required additional definition, so the committee added to the activity list the case characteristic of authorship, which applied to judges and staff attorneys. Since the authorship status of a judge directly impacts the work of a judge s law clerk, law clerks were also asked to indicate the authorship status of a case they worked on, relative to their judge. For judges and law clerks, the authorship characteristics included: o Judge (self) Authored Case, o Within Division Case, and o Other Judge s Case. For staff attorneys, they were to indicate if they were working on their: o Own Case, or o Another s Case. Per Curiam Opinions: Both judges and staff attorneys may draft per curiam opinions, which are unpublished opinions with no specific author. Judges, law clerks, and staff attorneys were asked to indicate when they were working on a per curiam opinion. In addition to case-related activities, a workload analysis must take into account the type of case being worked on. Different types of cases require different amounts of work, and involve different statutory requirements. The committee divided case types among those categories generally utilized by the COA: Criminal, Civil, Industrial Claims, and Juvenile. For the sake of greater specificity in measurement, those categories were divided into the following subcategories: National Center for State Courts, September

11 Criminal o Direct & Other Criminal Appeals o Criminal Rule 35 1 Civil o General Civil o Domestic Relations o State Regulatory Agency Industrial o Workers Compensation o Unemployment Insurance Juvenile o Dependency & Neglect o Other Juvenile Study Overview The activities list developed by the Workload Study Advisory Committee was designed to inform a time study, which in turn was designed to measure the amount of time required to complete both case and non-case work for all COA judges and staff. Participants in the time study were asked to record all work activities completed during the data collection period, as well as any leave taken. In order to provide data that was comprehensive of all work done at the COA, all staff and all judges were included in the study. study data collection was constructed around three elements: The type of cases worked on; The case-related activities performed; Work not related to specific cases (non-case work). 1 Colorado Crim. P. 35, Post conviction Remedies, sets forth the conditions under which an appeal may be filed to correct an illegal sentence, reduce a sentence, or seek other post conviction relief, including the introduction of material facts not presented to the court or jury, and the unlawful revocation of parole, probation, or conditional release. National Center for State Courts, September

12 Each time a participant recorded that they were working on a specific case type, they were asked to indicate what case-related activity (chosen from the activity list) they were performing. When participants reported non-case work, no case type was required. Why Measure Activities? There are two ways of measuring the total amount of time necessary to perform all the activities related to a case: 1) follow a large number of individual cases from the opening of the case to closure, recording all activities performed, and develop a model after all cases are closed; or 2) Measure the amount of time it takes to complete short-term activities, and create a model based on the total amount of time it takes to perform all of the activities associated with a case. This study uses the latter approach, which requires less time and fewer resources than the former. It also assumes that the time study will measure an equivalent amount of work on all activities during the time study, even though some cases will be at the early stages of case processing and others at final stages during the study period (see Figure 3). Figure 3: An Illustration of Measuring Activities Figure 3 illustrates the measurement of activities (the symbol) during the time study. Although some cases begin before the time study starts (Case 1) or end after the time study ends (Case 3), data is collected at the level of activities, which are equally distributed throughout the study period. Summing the average time for each activity creates the amount of time necessary to process a single case. National Center for State Courts, September

13 Recording Data for the Study The time study was designed to collect data on all case and non-case related work during the course of each day of the study. Participants were asked to record the routine activities of their day using the case type and activities list, and to record how long each activity took to complete, as well as any appropriate case characteristics. A single successfully completed entry of data for the time study contained an activity, a case type, and a time value; or in the case of non-case related work, a non-case activity and a time value. To ensure accuracy, participants were asked to record time study information throughout the day, preferably as they completed each activity. A log sheet was developed in order to facilitate the recording of information. The log was designed to provide an easy way of recording individual activities by checking boxes indicating case type and function, and writing down a time value all on a single line. An example of the log can be found in Appendix 2. One of the most time consuming (and therefore costly) aspects of a traditional time study is the entry of data from paper log sheets. However, recent technological advances have made such large-scale data entry unnecessary. Rather than having participants mail paper log sheets to a central location for data entry, participants were asked to enter their own data from paper log sheets into a web-based data entry form created by the NCSC and hosted on their website. Data entered into the website was available immediately to download, compile and analyze. The website was designed by the NCSC to not only eliminate costly post-study data-entry, but also to reduce errors made by participants in the course of recording their time. For instance, on the website it was impossible to pair a non-case activity with a case type, or a case-related activity without a case type. In this way, incomplete or illogical data could not be submitted. The COA is the first intermediate, statewide appellate court in the nation to conduct a workload study. As such, a priori knowledge of an appropriate study period was not available. Based on the recommendation of the NCSC, the committee agreed that a six week study period would be adopted. This amount of time was considered the minimum necessary to capture all of the various types of work performed by the COA. Still, the committee reserved the right to extend National Center for State Courts, September

14 the study period, if the project staff reported that data for certain case types or activities was not sufficient after six weeks of measurement. Study Implementation Training for the study was conducted by the project team February 7-11, Training was conducted in half-day sessions on multiple days in order to facilitate attendance by all staff (instructions used in the training can be found in Appendix 1). Because the Study was comprehensive of all work at the COA, not all information and instructions applied to all job types. In order to create the most effective training environment possible, staff with different job-types trained in different sessions. Judges likewise had their own training sessions. The Reporter of Decisions (a single person occupying a unique job category) worked off-site during the time study period, and was trained remotely. The project team prepared instructions that clearly explained the data collection process for all judges and staff. Training included discussions of the workload concept, the project design, the data collection requirements, and the opportunity to answer any questions related to the study and its implications. Training emphasized the importance of self-reporting time comprehensively, accurately, and consistently according to an established set of rules. Computers were available at the training venue for hands-on instruction in the use of the data collection website. The study began on February 16, Data collection continued through March 31. This provided 31 business-days from which to derive workload study data. During the Study, technical assistance was provided by P&A staff. Information concerning how to contact technical assistance was provided both in the materials given to participants in training sessions, as well as to participants via during the study. Reoccurring technical assistance questions were added to a Frequently Asked Questions list that was posted on the NCSC website and periodically updated as the study progressed. Results A review of the data submitted over six weeks showed a general volume appropriate for analysis, although there was logically more data for the most commonly appealed case types (civil and National Center for State Courts, September

15 criminal) than the others. The project team reported to the committee that the amount of data collected was sufficient for analysis, and no additional time was spent on data collection beyond the initial six week timeframe. The participation rate for the COA Study was excellent. As Table 1 indicates, all expected participants at the COA provided data, with the exception of two Judicial Assistants. Table 1: Participation Rates, COA Study Position Type Participation Expected Measured Judges Judicial Assistants Law Clerks Clerk-of-Court Staff Staff Attorneys Reporter of Decisions 1 1 Participants submitted an average of 7.5 hours per day of work-time, not including lunch and breaks. This is an expected value, given the Judicial Branch norm of a nine hour work day, with one hour for lunch and two breaks. Many participants submitted time in excess of the average, especially judges, who submitted the highest per-day totals. The Creation of a Workload Model A workload model is designed to quantify work in a way that ensures organizational effectiveness, which can be defined as the most appropriate use of resources to create that which an organization considers a product. The primary product of the COA is the written opinion. Therefore, the workload model will focus primarily on the work of the judges and staff attorneys who produce those opinions. This is not to downplay the importance of support staff at the COA they represent an integral part of the organization. This focus is simply to acknowledge that when the workload of judges and staff attorneys rises beyond an acceptable National Center for State Courts, September

16 level, the quality and ability of the COA to carry out its constitutional and statutory mandates are compromised. The COA must consider all appeals that are filed. When caseloads rise past a certain level, judges and staff attorneys must ration the time they devote to each case, and it becomes possible that some cases will not get the time and attention they deserve. In addition, the mandated timeframes for certain case types i.e. industrial claims and juvenile appeals require that they be prioritized, leading to the possibility that cases of other types will not be addressed in a timely manner. The workload model is designed to address these issues. The basic element of a workload model is the average time required to complete work on a case. An average time value was derived for each case type from time study data using three elements (see Figure 4): The total time recorded for each activity within each case type; The number of appeals (broken down by case type) filed during the study; and The percentage of cases for which an activity is appropriate; The total time recorded for each activity for each case type was derived from the time study data. The number of cases worked on by COA judges and staff attorneys was not directly measured using the time study methodology employed. Instead, the number of new cases filed at the COA during the time study period was used as a surrogate for the number of cases worked on. Utilizing filing numbers in this way is a common method of calculating caseload for trial court workload analyses. It provides a count of cases by case type without the burdensome requirement of having participants identify each specific case worked on over a six week period. All activities are not required for all cases. For example, some cases filed with the court are dismissed after the initial screening. Some cases are settled through the appellate settlement program. Few cases will require activities described in Phase III, Post Decision Matters. These National Center for State Courts, September

17 Figure 4: Annotated Example of Preliminary Workload Model The percentage of the total case filings to survive to this stage in the life of an appeal. The total time submitted for this case type and activity combination during the time study. Filings = 10 The number of new filings during the study for this case type. Average Per Case % Issue Filing Briefs Records Management Motions and Orders Set At-Issue 50 5 Miscellaneous Filing % Issue Review Appeal & Drafting Opinion Conferencing and Revising Management of Records % Set Assignments (w/in Division) Management of Records 50 2 Monitor Case Process % Finalize Opinion Process Opinion % Oral Argument % Post-Decision Process Petition for Rehearing Review, Rule, and Process Petition for Rehearing Court-Appointed Counsel Claims & Bills of Costs Issue of Mandate Total per Case Dividing the time by the number of filings and then multiplying by the percentage of filings expected to reach that stage provides the average time per activity. Summing the average time per activity yields the average time per case. Figure 4 shows an example of average time per case calculations. For these calculations, the total time submitted for an activity is divided by the number of filings. This value is then multiplied by a modifier representing the percentage of the total caseload expected to reach that phase of case management (down the left-hand column). This creates a time value reflecting the interaction of time and how often an activity is required. All time is represented in minutes. Note: This example is illustrative of the calculations used to develop a time per case value. Actual values can be found in Appendix 3. National Center for State Courts, September

18 factors, and others, influence the percentage of total case filings that survive to move through the next step in the appellate process. Therefore, any workload model that uses case filings as a variable must take into account the number of cases filed AND the likelihood that the case will require a specific action (i.e. case-related activity). Data was obtained from the COA clerk s office concerning the percentage of cases likely to reach each stage in the life of an appeal. This percentage was used as a modifier in developing time per case values. Using these elements, separate workload models were developed for judges, staff attorneys and clerk s office staff. The Judge Workload Analysis Judges at the COA sit in three-judge panels (or divisions). Under the current workload assumptions, each judge issues between 90 and 100 opinions annually. In addition, each judge must participate in deciding an additional 180 to 200 division cases per year. Participation includes reading briefs, reviewing cited authorities and records as appropriate, hearing oral argument when requested, providing input for opinions, and, on occasion, writing separate dissents and concurring opinions. Every judge also reviews and comments on opinions from other divisions that are proposed for publication; rotates through a three-judge motions panel that meets weekly to rule on motions filed in connection with pending appeals, and participates in weekly division conferences and bi-weekly full court conferences. For the workload analysis, casework time for judges was broken down into two categories: time on a judge s own opinions, and time on other judge s opinions. Separate calculations for each were developed, so that a time-per-case value was created for each category for each case type. Standard Setting Focus Groups The initial workload analysis was presented to focus groups of judges conducted on May 12, Fifteen of the 16 judges participated in the focus groups. The purpose of these focus groups was twofold: first, to confirm that the calculations presented in the workload model reasonably conformed to the practice of judges at the COA. Secondly, to discuss modifications to the measured time per case, if the group felt that the current workload does not provide enough time to complete case-related activities to the proficiency required by the COA. National Center for State Courts, September

19 In general, judges in the focus groups felt that the time captured in the workload study was an accurate reflection of the work completed during the time study. They were concerned that the use of case filings and percentages of filings to represent the number of cases worked on at various stages in the model may not have been entirely accurate. Because of the time required to author appellate opinions, judges believed that the number of cases worked on during the study period exceeded the filings count used in the model. Modest modifications were made to the filings count based on the feedback of the judges in the two focus groups. As judges reviewed the amount of time captured in the revised workload model, there was a general consensus that the amount of time represented for authorship of opinions was generally accurate and appropriate, but that the time shown for reviewing other s opinions, though accurate, was not adequate. Judges generally felt that workload pressures had not significantly influenced the amount of time and energy that they devoted to the authorship of their own opinions, given that this is their primary responsibility as appellate court judges. As a logical consequence of increased workload and caseloads, however, time spent reviewing colleagues work, and time spent writing dissenting and special concurring opinions had taken a back seat. Judges felt that case type was generally irrelevant in determining the amount of time a judge would spend on casework. Instead, it was the complexity of issues raised in the appeal that dictated the amount of time a case took to complete. They therefore recommended adding time to the model across all case types. Overall, 25% was added to the judge model for work on other judge s cases. This resulted in an increase of approximately 10% in time-per-case. Determination of the COA Judge Work-Year In addition to developing a model of workload for each case type, judge focus groups were tasked with approving a model for the judge work-year. Similar models currently exist for County and District judges, but one had not been previously developed for the COA. The accepted standard work-year for Judicial Branch employees is 2,088 hours of work per year. This total is reduced to create a yearly time for casework value based on two sources: leave/holidays and non-case work. For the COA model, the amount of leave time for District Court judges 328 hours per year was used. This 328 hours includes ten paid holidays (80 National Center for State Courts, September

20 hours), during which court is closed, plus 31 days (248 hours) per year of combined sick leave and vacation. There were a number of non-casework categories developed by the advisory committee for the measurement of non-case time. This provided a wealth of information for the creation of a yearly non-case work value. The average amount of non-case time measured for judges during the 6 weeks of the workload study was calculated, and extrapolated to a yearly value. Table 2 shows the results of this analysis. Table 2: Non-Case : Average per Judge, per Year (Hours) Non-Case Category Avg. per Judge per Judge - Year Judicial Policy Work Judicial Branch Committee Work Customer Service Human Resources Issues Keeping Current on the Law Continuing Legal Education Public Speaking/Community Outreach Bar and Legal Association Activities Court Administrative Work General Non-Case Activities Completing workload study project Total Table 2 shows the average amount time on non-case work submitted by judges (center column) and the extrapolation of that value to a yearly average (right-hand column). As can be seen in Table 2, the total amount of time per year calculated for non-case work for COA judges was slightly greater than 500 hours per year 2. This total is greater than the 366 hours per year calculated for urban District Court Judges, but it is in keeping with the natural progression of non-case time evidenced by comparison of county, district, and appellate court judges in Table 3. Table 3: Comparison of Non-Case by Judge Type Non-Case per Judge, COA 500 Non-Case per Judge, District 366 Non-Case per Judge, County The value for Court Administrative Work does not include data from the Chief Judge of the Appellate Court, since the inclusion of her administrative work would skew the data for this category, making it non-representative of the average judge. National Center for State Courts, September

21 In explaining the disparity between the district judge model for non-case work and their own total for non-case work, COA judges in focus groups explained that the difference is likely due to the large amount of time devoted to the category of Public Speaking/Community Outreach, and Bar and Legal Association Activities. These two categories also impact the time of district judges, but while there are some 178 district judges to share the load of these areas of outreach, there are only 16 COA Judges. Therefore, for the COA, the time requirement is much greater. Utilizing the value of 500 hours per year of non-case work time, and adopting the 328 hours for leave and sick time from the district judge model creates a value of 1,260 hours per year of casework time (see Table 4). Table 4: Model: Annual Judge Available Hours Available Annually Work- per Year 2,088 Vacation/Sick/Holidays 328 Base Hours Available 1,760 Less time required for: Judicial Policy Work 9 Judicial Branch Committee Work 26.3 Customer Service 0.4 Human Resources Issues 11 Keeping Current on the Law Continuing Legal Education 61.7 Public Speaking/Community Outreach Bar and Legal Association Activities 89.6 Court Administrative Work 6.1 General Non-Case Activities 70.9 Total, Non-Case Work Hours available for case-related work 1,260 Judge Overtime Analysis As was previously mentioned, COA judges submitted more time per day than any other classification of COA employee. In fact, on average a COA judge worked 30 hours more than what was expected during a 6-week time study essentially, overtime hours. The focus National Center for State Courts, September

22 groups felt strongly that a new model of COA work should not codify this state of affairs, since it would create a yearly COA workload standard 261 hours greater than the standard for the rest of the Judicial Branch. Instead, the standard 40 hour work week should be used to determine the final COA workload model (as it is for trial court workload models). The impact of eliminating the currently codified overtime at the COA can be seen in Table 5. If the current practice of working in excess of the 40 hour week were entered into a workload model, it would yield 1,521 hours per year of available casework time. Multiplied by 16 judges, the total overtime per year being worked by COA judges equals 4,176 hours an equivalent of three judge full time equivalent (FTE) positions, working on cases for 1,394 hours per year (4,176/1,260 = 3.31). In essence, moving the COA judges to a normalized work week would require the addition of a three-judge panel in order to maintain the existing level of casework per year. Table 5: Comparison: 40-Hour Week vs. Current Practice Hours/Year Model Case (40 hour week) 1,260 Current Judge Case 1,521 Per-Judge Difference 261 Difference x 16 Judges 4,176 Positions (FTE) necessary to Normalize Model 3 Table 5 shows the difference between the modeled work-year for COA judges (1,260 hours per year) and current overtime practice (1,521 hours per year). Reducing current practice to a normalized 40 hour work week creates a difference of 4,176 work-hours, the equivalent of 3 judge-positions. The Final Judge Workload Model The workload model for COA judges utilizes the same general types of calculations for modeling caseload and workload as the weighted caseload models developed for district and county judges. In the Weighted Caseload Model, weights for each case type are created by dividing the total amount of time per year available for casework by the average time required to complete one case. This yields the total number of cases per year that the average judge could hear (if only hearing that case type). Appendix 3 contains the case-specific calculations for the model. Table 6 shows the final calculations for time (in minutes) per case, by case type, and the number of cases per year a single judge could work on, assuming a 1,260 hour work year. National Center for State Courts, September

23 Table 6: Final Workload Model for COA Judges: per Case 3 Case Type Minutes per Case Hours per Case Cases per Year Criminal Direct 1, Criminal R35's Civil General 1, Civil Domestic Relations Civil State Agency Industrial Juvenile Table 6 shows the average time per case (in minutes and hours) calculated from the time study data. The number of cases per year is calculated by dividing the number of work-hours per year by the time per case. The model assumes a 1,260 hour work-year for COA judges. Resource allocation based on the workload model is calculated by multiplying the cases per year value by the number of expected filings, and determining if the FTE currently available will cover the pending workload. Unlike the weighted caseload model, which uses projected caseload filings to determine future allocation strategies, the current iteration of the COA model will fit 2004 filings into the final model. This is to acknowledge that this is a baseline model the COA will need to meet the needs represented in the initial model before moving to address caseload growth issues. Table 7 shows the final need values based on 2004 filings for the COA. The increased need from the existing 16 judges to 22 is based on two sources: The increase of 10% of time per case to meet the judge s need for more time to work on cases they do not author (representing an increase of 3,407 hours per year of additional required judicial work), and The reduction of the judicial work-year from the detected amount of overtime to one commensurate with the Judicial Branch standard 40 hour work week (representing an increase of 4,176 hours per year of additional required judicial work). 3 Based on feedback from the focus groups, data from the case types under the categories Industrial Claims and Juvenile were collapsed to create single categories for each. National Center for State Courts, September

24 Table 7: Final Workload Model for COA Judges: Judge Need Based on 2004 Filings 2004 Filings Judge Need Criminal Direct Appeal Rule Civil Dom Rel Agency Other Indust. Claims Juvenile Total Need Actual 16 Difference Table 7 shows the number of judges needed to complete work on the filings received by the COA in 2004, based on the workload model. The judge need for each case type is calculated by dividing the number of filings by the number of cases per year a single judge could complete (shown in Table 6). Staff Attorney Model Staff attorneys at the COA are unique within the Judicial Branch neither the Supreme Court nor the trial courts have dedicated staff attorneys. Staff attorneys assist the judges at the COA by preparing recommended dispositions in appeals that involve relatively straightforward issues or involve specific areas of expertise, such as workers compensation or termination of parental rights (e.g. Dependency and Neglect appeals). Currently, the ratio of staff attorneys to judges is 1:1 there are 16 staff attorneys at the COA. Staff attorney focus groups were held in the same manner and for the same purpose as the judge focus groups to determine the general appropriateness of the model of work developed from time study data, and recommend any modifications of staff attorney time to meet established performance goals. Staff attorneys felt that the measured time from the time study accurately reflected current practice. In addition, there was a general consensus that overall that there was enough time available in the current mode of practice to handle their current workload. Determination of the COA Staff Attorney Work-Year As was previously mentioned, the staff attorney at the COA is a unique position one that has no accepted model for work-year. As with judges, staff attorneys submitted detailed data on National Center for State Courts, September

25 non-case work-time. However, focus groups were concerned that not enough time had been captured in certain non-case categories to accurately reflect the staff attorney work-year. They felt that some tasks which make up a significant part of the staff attorney work year were simply not worked on during the time study period. As a result, the time study data did not reflect an accurate total from which a yearly average could be determined. Staff attorneys recommended additions to several categories of non-case work. For the categories Judicial Branch Committee Work; Public Speaking/Community Outreach; and Bar and Legal Association Activities, staff attorneys felt that little of the potential work that they do in outreach (for themselves and especially in support of judges) was reflected in the time study data. The increase to the category Human Resources Issues reflected the consensus that staff hiring and promotion activities were not appropriately reflected in the model. Table 8: Staff Attorney Non-Case and Proposed Increases (in bold) per Proposed Non-Case Category Year (Average) Increases Judicial Branch Committee Work Customer Service Human Resources Issues Keeping Current on the Law Continuing Legal Education Public Speaking/Community Outreach Bar and Legal Association Activities Court Administrative Work General Non-Case Activities Total Staff attorneys, as with most all Judicial Branch employees (exempting judges), receive annual Paid Off (sick leave and vacation). In order to calculate a staff attorney work-year, a list of staff attorneys and their seniority with the branch was obtained, and an average seniority value developed. Based on the formula for calculating PTO by seniority, it was determined that the average staff attorney received 217 hours of Paid Off per year. Based on the revised total for non-case time, and the average number of PTO hours (plus 80 hours of yearly holidays), the final model of available work-time for staff attorneys was developed (see Table 9). National Center for State Courts, September

26 Table 9: Annual Staff Attorney Available Hours Available Annually Work- per Year 2,088 Vacation/Sick/Holidays 297 Base Hours Available 1,791 Less time required for: Judicial Policy Work -- Judicial Branch Committee Work 7.0 Customer Service 5.0 Human Resources Issues 24.7 Keeping Current on the Law 60.2 Continuing Legal Education 30.0 Public Speaking/Community Outreach 3.8 Bar and Legal Association Activities 22.3 Court Administrative Work 45.8 General Non-Case Activities 51.3 Total, Non-Case Work 250 Hours available for case-related work 1,541 Calculation of Cases Assigned to Staff Attorneys Judges must work on all appeals for which an opinion is written whether the appeal is originally assigned to a judge or whether a judge is supervising the work of a staff attorney. Staff attorneys only work on that subset of cases to which they are assigned. In order to create a final workload model using 2004 filings data, it was necessary to take this into consideration. Based on data provided by the chief staff attorney, figures were developed showing the percentage of total filings assigned to staff attorneys, by case type. These percentages were used to modify the filings data in order to accurately reflect the staff attorney caseload (see Table 10). Table 10: Percentage of Cases Assigned to Staff Attorneys % of Cases Assigned to Staff Attorneys Civil General 21% Domestic Relations 100% Juvenile 97.26% Criminal 44% Criminal/R35s 68% Civil - State Agency (AG cases) 14% Worker's Comp 100% Unemployment 100% National Center for State Courts, September

27 The Final Staff Attorney Workload Model Table 11 shows the final calculations for hours per case, by case type, and the number of cases per year a single staff attorney could work on, assuming a 1,541 hour work year (case-specific calculations for the model can be found in Appendix 3). Table 11: Final Workload Model for Staff Attorneys: per Case Case Type Minutes per Case Hours per Case Cases per Year Criminal Direct 1, Criminal R35's Civil General 1, Civil Domestic Relations 2, Civil State Agency 1, Industrial: Worker's Comp 2, Industrial: Unemployment Ins Juvenile 1, Table 11 shows the average time per case (in minutes and hours) calculated from the time study data. The number of cases per year is calculated by dividing the number of work-hours per year by the time per case. The model assumes a 1,541 hour work-year for staff attorneys. As with the judges, staff attorney need was calculated using 2004 filings, based on the hours-percase values developed in the workload model. As predicted by the feedback from the staff attorney focus groups, no FTE need was detected in the model (see Table 12). Table 12: Final Workload Model for Staff Attorneys: Need Based on 2004 Filings Staff Attorney Staffing Calculation 2004 Percentage Filings as Staff Attny Filings of Filings Percentage Need Criminal Direct Appeal % Rule % Civil Dom Rel % Agency 33 14% General Civil % Industrial Claims Worker's Comp % Unemployment Ins % Juvenile % Total Need 16.2 Actual 16 Difference -0.2 National Center for State Courts, September

28 Although the existing mode of allocation for staff attorneys appears to meet the current workload need, staff attorneys in the focus groups were of the consensus opinion that if additional judges were added to the appellate bench, additional staff attorneys would need to be added as well, since additional judges would require additional staff attorney support. The Clerk of Court s Staff The COA workload model is primarily concerned with ensuring that judges and staff attorneys have the ability to produce opinions in a proficient manner consistent with constitutional and statutory requirements. However, it is also important to utilize time study results to develop an appropriate model of work for the COA Clerk of Court s Office. The requirements of the COA Clerk s Office is similar to any other Clerk of Court s Office staff receive and file new cases and pleadings; process cases, including filing and data entry; provide general support for staff attorneys, judges and chamber s staff (judicial assistants and law clerks) as appropriate and serve as the primary point of contact for lawyers, litigants and the general public. In addition, the Clerk s office is responsible for determining whether the materials submitted for appeal meet statutory requirements for completeness (including forms completion and submission of a complete case record), returning files and records to parties and/or the originating court at case termination; and engaging in some administrative case work. At the completion of the time study, focus groups were not conducted for Clerk of Court s Office; however the workload model was developed in consultation with the Clerk of Court. Based on feedback from the Clerk, as well as consultation with the advisory committee, it was decided that the recently revised work-year model for trial court case processing staff be adopted for the COA clerk model. For the trial court model, it is assumed that staff have a total of 1,532 hours per year to process cases. A final model for case work can be seen in Table 14, using the assumption of 1,532 hours of case-work time. Utilizing the per-case values developed, an FTE need table was produced using FY 2004 filings (see Table 14). This table shows the need for.93 FTE to meet current case processing goals a current staffing that is 89.41% of what is required. Although this level of need is a concern, it is in keeping with the level of understaffing for case processing statewide. National Center for State Courts, September

29 The current statewide staffing for case processing is calculated to be 83% of total need. Therefore, no current staffing request will be made in relation to this detected need. Still, this understaffing needs to be monitored, so that the capacity of COA to manage case processing does not erode to any greater extent than that of the trial courts. Table 13: Final Workload Model for COA Clerk s Office: per Case Case Type Minutes per Case Hours per Case Cases per Year Criminal Direct Criminal R35's Civil General Civil Domestic Relations Civil State Agency ,359 Industrial: Worker's Comp Industrial: Unemployment Ins Juvenile Table 13 shows the average time per case (in minutes and hours) calculated from the time study data. The number of cases per year is calculated by dividing the number of work-hours per year by the time per case. The model assumes a 1,532 hour work-year for clerk s office staff. Unrelated to the detected staff need, the Clerk of Court believes that an increased number of judges at the COA will increase the amount of both case processing and non-case related efforts required of his staff. Therefore, any increase in judges should lead to an increased FTE for Clerk s Office staff at the current ratio of 1.5 FTE for each additional panel of judges. Table 14: Final Workload Model for the COA Clerk s Office: Need Based on 2004 Filings 2004 Filings Clerk s Office Need Criminal Direct Appeal Rule Civil Dom Rel Agency General Civil Worker's Comp/Unemployment Juvenile Total Need 8.78 Actual 7.85 Difference National Center for State Courts, September

30 Conclusions/Recommendations The Court of Appeals of the State of Colorado is charged with providing citizens with impartial, clear, and timely resolution of appealed judgments and orders, employing the resources provided to it by the General Assembly. A time study involving all judges and staff at the COA has been conducted, and a workload model developed, so that resource requirements can be demonstrated in a clear and objective manner. This analysis found that: 1. The caseload at the COA has been rising since the last expansion of the court in The COA workload has also been impacted by the increased complexity of the cases being heard before the court. 2. Judges at the COA have responded to this increased workload by working in excess of the standard expected work-year. 3. The increased workload at the COA is not, at the present time, significantly impacting the ability of judges to meet the requirement of researching cases and authoring opinions. However, it is reducing the ability of judges to fully consider and review the work of other judges and to provide special concurring and dissenting opinions. Furthermore, as the caseload continues to rise, it necessarily will impact the courts ability to author opinions and to dispose of certain types of cases without undue delays. 4. Any increase in the number of judges at the COA would increase the workload of staff attorneys and clerk s office staff, requiring additional resources to maintain the current level of efficiency. Therefore, the following is recommended: 1. In order to meet the current requirements of workload and caseload, and to reduce the workload of judges to a manageable work-year, the COA should be increased by two panels (six judges). Pursuant to , each additional judge should be staffed with one law clerk and one judicial assistant. 2. In order to maintain the current proficiency of the staff attorneys, additional attorneys should be employed as judges are added to the bench. The current ratio of staff attorneys to judges, 1:1, should be maintained. Therefore, it is recommended that six additional staff attorneys be retained as judges are added to the bench. 3. As additional judges are added to the COA, additional staff should be added to the Clerk of Court s office to maintain the current level of proficiency in case processing. National Center for State Courts, September

31 The current ratio of 1.5 FTE increase for each panel of judges should be maintained; therefore it is recommended that an additional three staff be added to the Clerk s Office as judges are added to the bench. Next Steps, Caveats, & Concerns The Court of Appeals Workload Analysis provides an objective, scientifically derived method for determining the adequacy of resources and the relationship between workload and caseload. The analyses presented in this report are designed to provide a clear rationale for addressing the current case backlog and increase in judicial workload facing the COA. However, this model is not designed to be a static product. Instead, the model of workload will continue to be revised and refined, so that changes in caseload, statutory requirements, and staffing patterns can be measured and related to the adequacy of existing resources. Therefore, a review of next steps, as well as study limitations and areas of concern is in order. The project team concluded that the six week study period was adequate to measure the workload of the COA. However, the study ended with some types of case work not as well represented as the most common case types. Future studies should work to increase the amount of data collected on less commonly occurring case types, to increase data integrity for all types of cases. The methodology employed in the current study did not track specific cases as they were being worked on instead, the number of new case filings during the study period was used as a surrogate for the number of cases worked on. As has already been stated, this method has limitations when studying an appellate court. The judge focus groups felt that the case count obtained through this method was too low, and that more cases were worked on during the study period than were present in the model calculations. This concern was addressed by modifying the filing numbers for some case types (criminal, civil, and juvenile) based on the expert opinion of the judges. Future studies should work to track cases more effectively, so that the number of cases and amount of workload can be more objectively derived. In the focus group process, judges indicated that case type was less important than case complexity in determining the workload burden associated with a case. Future studies should National Center for State Courts, September

32 look at ways to quantify complexity as a variable for analysis, and perhaps reduce the number of case types considered in the study. The advisory committee felt that the time associated with per curiam in comparison with other opinions and the prevalence of pro se litigants were facets of workload that were important to study. However, these case characteristics were used too infrequently during the time study period to yield enough data for analysis. Future studies should address these case characteristics, since they may have an impact on the workload of both judges and staff attorneys. Both judges and staff attorneys warned that the current workload problem facing the COA could not be solved by merely adding staff attorneys. They pointed out that staff attorney product is always supervised by a judge (whether the attorney is working to support a judge or is drafting a recommended disposition in his or her area of specialization). Therefore, adding staff attorneys to address judge workload will only succeed in increasing the judge s workload further (as one staff attorney put it, adding staff attorneys will only give the judge more to read ). Staff attorneys felt that their current workload is manageable; however they were concerned that an expansion of the court could exacerbate problems caused by their lack of clerical support. Staff attorney clerical support was cut during a period of layoffs that affected the entire Judicial Branch. Although the attorneys currently are able to remain proficient in the production of opinions and in support of judges, they are also burdened with performing their own jobs as well as the jobs of clerical staff. This bears keeping in mind as the workload model is refined. Judges are concerned about the pace and content of statutory and policy changes which influence the business of the COA. Future studies should take into account changes in Judicial Branch policies and statutes enacted since the completion of the existing study, to quantify their impact on judicial workload. National Center for State Courts, September

33 Appendix 1: Study Case Types and Activities Case Types For Judges, Staff Attorneys, and Law Clerks, Include: Add to Case Type area: Pro Se Case Y/N If Judge or Law Clerk, Include: Judge (self) Authored Case Within Division Case Other Judge s Case Per Curiam Opinion If Staff Attorney, Include: Own Case Other s Case Per Curiam Criminal Civil o Direct & Other Criminal (clerk s office only) o Rule 35 s o General Civil o Domestic o State Agency Industrial Juvenile o Workers Compensation o Unemployment Insurance o Dependency & Neglect o Delinquency/Truancy National Center for State Courts, September

34 Activities I) Case Not at Issue Notice of Appeal: Receive opening document, including case processing fees. Review for completeness/sufficiency. Enter into ICON. Send notices to appellee, appellant, and trial court. Screen and track for priority. Set due date for the record. Screening: Track case for priority and review for an appealable final order and the legal requirements to appeal. If not, order appellant to show cause. Set and Conduct Settlements: Set time and date for court-ordered mediated settlement. Set and process settlement files. Pull and review files for appeals participating in ICAO program, communicate with Department of Labor and attorneys. Prepare for mediation, including reading briefs and research. Conduct mediation. File Record: Stamp case number on documents, enter into ICON; prepare and/or file documents, shelve records, file notices, and settle first brief schedule. Records Management: Check records in/out to parties, including the routine handling of physical files. File Briefs: Check certificates of service and copies; create ICON entries; run reports for overdue briefs; issue show cause orders. Motions and Orders: Record and check copies (including extension requests), trail record; meet on orders based on motions; copy, mail, work in ICON, check definitions on who should rule, meet with judges; consult three judge panel in motions division; rule at division; process order. Includes contact (letter, phone, , fax) with trial courts and court reporters concerning transcripts, monitoring transcripts for completeness and accuracy, the processing of extension requests, and the processing of Rule 50 orders. Set At-Issue: Review file for completeness and accuracy. Place at issue. Review and consider recusal issues. Fill out and circulate recusal sheets. Set assignment to staff attorneys or nonspecific assignment to division. Includes the creation of issue sheets, the physical handling of flat files and file guides, working with the attorney directory, and all related photocopying. Miscellaneous Filing: Includes the filing of letters, entry of appearance, designation of record, and any other items to be filed not specified elsewhere. II) Case at Issue Review Appeal & Draft Opinion: All work up to the circulation of the opinion or order, including the initial conference on opinion language before circulation and the review of motions and drafting of motions. Includes reviewing briefs/records/files (flat files), conducting legal research (including WestLaw research), drafting opinion (including recommended opinion and National Center for State Courts, September

35 Pre-Disposition Memoranda). Includes reviewing files, etc. remanded from Supreme Court. Also includes photocopying to support any of the above. Conference and Revise: Conferencing on opinion language after original circulation of opinion and revising. Includes preparation for and attendance at division conference, and continuation of casework after conference. Also includes reviewing drafts for grammar, spelling, and formatting; making edits. Set Orals: Set calendar, send orders, ICON entries, review and edit ICON content. Assign to Division Management of Records: Pull records and briefs, pull or re-file case file, create and/or maintain files, distribute to judge, organize briefs and files, file and distribute of motions, make and distribute copies to judges, track and calendar opinions. Set Assignments (within Division) Monitor Case Progress: Monitor cases; produce reports; review motions and orders, manage documents. Finalize Opinion: Includes circulation of opinion, conferencing, and editing final opinion. Process Opinion: Proofread copy and distribute opinions to judges and the clerk s office, release opinion to WestLaw and parties, format and post opinion on the web. Includes putting case on the announcement document and related data entry. Oral Argument: Scheduling for oral argument, set up and tear down courtroom, distribute/collect audio tapes, bailiff duties, hear arguments and discussions with parties, and attend oral arguments. III) Post-Decision Matters Process Petition for Rehearing: Stamp, process, move petition to judge, distribute copies and monitor the return of opinions. Review, Rule, and Process Petition for Rehearing: Read petition, conference, research and review case files/opinions. Includes revising and modifying original opinion. Transfer for Writ of Certiorari: File advisory copy of the writ, enter ICON data, package and move documents, process denials. Court-Appointed Counsel Claims and Bill of Costs: Includes reviewing court-appointed attorney requests for fees, and the routine filing and copying of bills of cost. National Center for State Courts, September

36 Issue of Mandate: Completion of the order, return the record to the trial court, related records management (including case tracking in ICON), close out files and send to archives, and purge (throw away) division files. Includes other related recordkeeping within chambers. IV) Non-Case Work Judicial Policy Work Judicial Branch Committee Work: Attend committee meetings within the Court, including work with the various advisory committees of the judicial branch. Customer Service: Answer general /mail/fax/phone inquiries and counter inquiries. Includes inquiries from publishers and the public. Human Resources Issues: Hiring staff (including posting of vacancies, interviewing, correspondence, and other duties related to employment with the court), train staff, provide or receive supervision. Keeping Current on the Law: Includes reading/researching legal decisions etc. to remain current in the law (not specific to casework), and reviewing blue opinions (blue sheets). Continuing Legal Education: Includes both teaching and learning. Public Speaking/Community Outreach: Attend charitable activities; meet with groups and organizations, and other work with stakeholders and individuals with an interest in the court as an institution. Does not include work with bar associations (see below). Bar and Legal Association Activities: Working with local, state, and national bar association(s). Also includes serving on Access to Justice Commission or Inn of Court. Court Administrative Work: Create and maintain statistical reports, generate new studies and reports, and any other administrative work necessary for the smooth operation of the court that is not specified elsewhere. Includes preparation for and attendance at the full court conference. General Non-Case Activities: Includes any other administrative work not otherwise specified. Includes appearing as the Judicial Branch representative for statewide agencies such as PERA. Leave: Vacation and sick leave (PTO), maternity leave, and any other paid and unpaid leave. Completing workload study project National Center for State Courts, September

37 Appendix 2: Study Logs Judges National Center for State Courts, September

38 Staff Attorneys National Center for State Courts, September

39 Clerk of Court and Other Staff National Center for State Courts, September

40 Law Clerks and Judicial Assistants National Center for State Courts, September