1. System Analysis: Historical Caseloads and Staffing

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Chair Hon. Lora Livingston 261st Judicial District Court PO Box 1748 Austin, TX 78767-1748 Lora.Livingston@traviscountytx.gov Members Hon.

1 Chair Hon. Lora Livingston 261st Judicial District Court PO Box 1748 Austin, TX Members Hon. Cheri Beasley Raleigh, NC Walter Eggers Cheyenne, WY David Hilgers Austin, TX Theodore Howard Washington, DC Lauren Sudeall Lucas Atlanta, GA R. Edward Marks Albuquerque, NM Carlos Martinez Miami, FL Charles Weiss St. Louis, MO Brendon Woods Oakland, CA Bryant Yang Los Angeles, CA Special Advisors Norman Lefstein Indianapolis, IN John Rosenberg Prestonburg, KY Board of Governors Liaison Frank Langrock Middlebury, VT Committee Counsel Terry Brooks Associate Counsel Bev Groudine Assistant Counsel for Indigent Defense Malia Brink Eric J. Deitrick Deputy General Counsel Office of Public Defense Services 1175 Court Street NE Salem, OR Dear Mr. Deitrick, We understand that Oregon is considering undertaking a study to determine appropriate workloads for its public defender offices. The American Bar Association s Standing Committee on Legal Aid and Indigent Defendants ( ABA SCLAID ) has completed workload studies in Missouri, Louisiana, Colorado, and Rhode Island, 1 and is currently undertaking a workload study in Indiana. We write now, at your request, to detail our process for conducting workload studies, as well as provide an approximate timeline and estimated cost for a workload study. Methodology ABA SCLAID uses the Delphi method to determine appropriate workloads in a particular jurisdiction. The Delphi method, introduced in 1962 by researchers at the RAND Corporation, allows researchers to gather expert opinion and generate reliable consensus. It is used to develop standards in situations not easily reducible to numeric calculations. ABA SCLAID, working with an accounting/consulting firm, which runs all of the econometric analyses necessary for the study, applies the Delphi method to generate a reliable estimate of what workload standards should be in order for a defense attorney to provide reasonably effective assistance of counsel. When conducting a workload study, ABA SCLAID uses a four-step process: System Analysis: Historical Caseloads and Staffing Delphi Panel Selection Delphi Process Final Report 1. System Analysis: Historical Caseloads and Staffing AMERICAN BAR ASSOCIATION Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, Illinois The first step is to conduct a historical caseload and staffing analysis, and, where 1 The reports on these studies, The Missouri Project and The Louisiana Project, are available at

2 Page 2 feasible, review historical timekeeping data. (See, The Louisiana Project, pp. 7-10, pp. 7-10, available at defense.org.) Using the indigent defense system case management system (CMS), the court CMS, or other available data sources, the accounting/consulting firm works with relevant entities to extract all available data relating to the number and types of cases handled by the public defense provider, as well as, where feasible, timekeeping data, which shows the amount of time spent per case and, ideally, the tasks conducted. 2 In addition to gathering data from CMS and other data sources, site visits, conference calls, and information requests are used to gather this information. This data is used, in consultation with respected local attorneys, to group the cases handled by public defense provides into Case Types and then identify the Case Tasks that are needed to represent the client in each Case Type: Case Type is a way to group offenses of roughly similar complexity. For example, in the Missouri Project, Case Types included murder/homicide, sex felony, AB felony, CD felony, misdemeanor, juvenile, probation violation, and appeals/pcr. We recognize that, within a Case Type, case complexity can vary greatly. However, grouping cases by Case Type is helpful, where it is reasonable to assume, for instance, that a homicide will generally be more complex than a sex felony, and a sex felony more complex than a misdemeanor. Case Task is a way to group common tasks performed by an attorney. For example, in the Missouri Project, Case Tasks included client communication (in-person, over the phone, in writing, through family); discovery and investigation (prosecutorial discovery disclosure, records and transcripts, depositions and witness interviews, and expert and technical research); and case preparation (legal research, drafting and writing, plea negotiation, court preparation, case management, and alternative sentencing research). Ultimately, the Project will establish workload standards (e.g., the number of minutes it should take an attorney to conduct legal research in a sex felony case) using the Case Types and Case Tasks identified. Thus, identifying Case Types and Case Tasks that are relevant under the law of a particular jurisdiction is crucial. 2. Delphi Panel Selection The number of Delphi panels needed depends upon the array of Case Types studied and the likelihood that one set of attorneys might be knowledgeable about representation of the various Case Types. For example, the same Delphi panel could likely address an array of Case Types involving adult criminal defendants charged with varying felonies. However, that Delphi panel would likely not be able to address Appeals or Juvenile Cases. For each Delphi Panel needed, ABA SCLAID works with the public defense provider to identify attorneys to serve on a If the jurisdiction has the capacity and technology, or can put the capacity and technology in place, it is highly desirable to have a minimum 6-month period of timekeeping that details time allotted to specific tasks in each case. Where this is not feasible, or timekeeping collection results in insufficient case/task specific time collection, historical staffing and caseload data can serve as the sole basis for comparison. 2

3 Page 3 person Selection Panel. The Selection Panel will, in turn, help to generate the list of respected defense attorneys, both public defenders and private attorneys, to participate in the Delphi process (the Delphi Panel). 3. Delphi Process The Delphi Process is an iterative study of the time associated with Case Tasks and Case Types. The initial step is to produce and distribute a structured survey instrument to each member of the Delphi Panel, asking them to provide an estimate of the amount of time an attorney should spend on a given Case Task for each Case Type. For example, one of the questions asked in the Missouri Study pertained to in-person client communication (Case Task) for CD felonies (Case Type): Felony CD Cases Below you will be asked to provide your estimate of the amount of time that is reasonably required to perform the respective task with reasonable effectiveness. Please enter your response in minutes. CLIENT COMMUNICATION IN PERSON Time for privileged client interviews and consultations conducted face-to-face. How much time, on average, is reasonably required to perform this task with reasonable effectiveness? Minutes : (Optional) Please provide an explanation of your time estimate The survey is guided by standards and the instructive part of the survey includes relevant portions of the ABA standards. When the results of the first survey are returned, the Delphi Panel s responses are summarized by the accounting/consulting firm. A second survey is distributed along with summary statistics on the results of the first survey to the Delphi Panel. During this second iteration, the Delphi Panel members are allowed to revise their estimates. In the final iteration, the ABA SCLAID researchers and members of the accounting/consulting firm meet in-person with the Delphi Panel. The accounting/consulting firm provides the Delphi Panel with a summary of the first two iterations of the survey to facilitate the Delphi Panel in reaching a group consensus for each Case Type-Case Task combination. At the end of the meeting, the Delphi Panel will arrive at final workload standards. This process is pursued for each of the Delphi panels in the project (e.g. Adult criminal panel; Appeals panel; Juvenile panel). 3

4 Page 4 4. Final Report ABA SCLAID and the consulting/accounting firm collaborate to co-produce a final written report and supporting materials. The report explains the study s methods and results, including workload standards, statistics, and conclusions. ABA SCLAID is responsible for the law and standards applicable to the report. The accounting/consulting firm is responsible for the principles of econometrics applicable to the report. By comparing the historical caseload and staffing data with the outcomes of the Delphi panels, the accounting/consulting firm is able to quantify existing deficiencies in the system. Additionally, if the methodology is followed, the accounting/consulting firm should be able to certify that the study was conducted in accordance with the Statement on Standards for Consulting Services established by the American Institute of Certified Public Accountants. Timeline ABA SCLAID works with the public defense provider to develop a Timeline for the Delphi study. The Timeline includes at least the following steps: Gather historical caseload, staffing and time-keeping data, where available Determine number of Delphi panels Develop Case Type-Case Tasks for Survey Instrument Draft Survey Instrument for each Delphi Panel Identify attorneys for each Delphi Panel and invite them to join Distribute survey instrument to Delphi Panels for first iteration of Delphi Process Summarize data from first iteration of Delphi Process Distribute survey statistics to Delphi Panels for second iteration of Delphi Process Summarize data from second iteration of Delphi Process Conduct in-person final iteration of the Delphi Process to develop workload standards Compile results of the Delphi Process Draft report Publish final report If the necessary historical caseload and staffing data, as well as the time-keeping data including case-specific task entries, exist in the system and are easily extractable, the timeline could be as short as 16 months. In jurisdictions that do not have a statewide CMS and timekeeping already in place, the timeline may be longer (approx. 24 months), particularly if the jurisdiction wishes to institute timekeeping as part of the study process. Alternatively, where available data can be used to generate FTE comparison analysis, this can be done in lieu of timekeeping. For this type of study, the timeline is generally 18 months. Cost The cost of the study depends largely on how much time needs to be spent on data collection and how many Delphi panels the jurisdiction wishes to conduct. Three panels, covering, for example, adult criminal cases, appeals and juvenile cases would cost approximately $250,000. 4

5 Page 5 We hope this information is helpful to you. Please do not hesitate to contact us if you need further information or are interested in pursuing a workload study. Respectfully, 5

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