Maryland Attorney and Staff Workload Assessment, 2005

Maryland Attorney and Staff Workload Assessment, 2005

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Maryland Attorney and Staff Workload Assessment, 2005

Maryland Office of the Public Defender Submitted by

National Center for State Courts

Project Staff:

Brian J. Ostrom, Project Director Matthew Kleiman National Center for State Courts

Christopher Ryan Colorado Judicial Branch Formerly National Center for State Courts

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Maryland Attorney and Staff Workload Assessment, 2005

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© 2005 National Center for State Courts 300 Newport Avenue Williamsburg, VA 23185 ISBN 0-89656-255-7

This report was developed under a contract from the Maryland Office of the Public Defender, contract number OPD-03-01. The opinions and points of view expressed in this report are those of the authors, and do not necessarily represent the official position or policies of the Maryland Office of the Public Defender.

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Acknowledgements

T

he authors wish to acknowledge the invaluable contributions of the attorneys and staff of the Maryland Office of the Public Defender to this Workload Assessment project. An undertaking of this nature would not have been possible without the assistance of the capable and dedicated attorneys and staff who gave their valuable time to this project. Specifically, the project team would like to acknowledge the assistance provided by the attorneys and staff in Districts 1, 3, 4, 5, and 8. Site visits with OPD staff in these offices provided a valuable perspective on current operations and the inherent challenges of their continuing commitment to indigent defense. Over the course of this 18-month study we were fortunate to work with several distinguished advisory groups that were instrumental in refining the approach and content of our evaluation. The OPD Advisory Committee, comprised of attorneys and staff from across the state, provided primary project oversight. The members are to be commended for the direction, support, and leadership they provided throughout the project.

OPD Advisory Committee Members Nancy S. Forster, Public Defender Charlene Dukes, Deputy Public Defender Cynthia Boersma, Counsel, Finance & Policy Patricia Chappell, Counsel, Planning and Policy Michael Cummings, Counsel, Information Technology Paul DeWolfe, District Public Defender, District Six, Montgomery County Darren Douglas, Supervising Attorney, District Seven, Anne Arundel County John Markus, Supervising Attorney, Felony Trial Division, Baltimore City Wendy Priet, Office Manager, District Eleven, Frederick & Washington Counties Larry Rogers, Supervising Attorney, Southern District Court, Baltimore City Angela Shelton, Supervising Attorney, Felony Trial Division, Baltimore City Sheila Sullivan, Supervising Attorney, District Four, Southern Maryland Donald Zaremba, Deputy District Public Defender, District Eight, Baltimore County In addition, five separate focus groups of attorneys and staff provided essential insight and comment, by practice area, on the work performed by OPD and the data collection instruments employed in this evaluation. Their efforts in training attorneys and staff across the state were pivotal in ensuring high response rates and quality data in all phases of the project. We extend a special note of thanks to OPD Administration for their hard work and dedication in steering this project to a successful

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Maryland Attorney and Staff Workload Assessment, 2005

completion. Throughout this project Patricia Chappell, Counsel for Planning and Policy, exhibited consummate professionalism and was an invaluable resource to the project team. We also thank Nancy Forster and Cynthia Boersma for their help and support throughout the life of this project, and for commenting on early drafts of this report. We are also extremely grateful to Neil LaFountain for his assistance designing data collection instruments, and with data management and graphical displays. In addition, we thank our NCSC colleagues Tom Carlson,

for developing and managing the Web-based tools utilized in this study, Dawn Marie Rubio and Nicole Waters, for their participation in the project site visits, and Brenda Otto and Sherry Keesee-Buchanan, for providing administrative support. This publication benefitted from the careful editing of Mitchell Moore. Finally, we thank Neal Kauder for organizing the visual layout of the materials and the final report, and Judith Sullivan Phillips for managing the design and page layout.

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Table of Contents Executive Summary Findings ...................................................................................................................................................................... 7 Project Design ............................................................................................................................................................. 8

1

Project Overview Introduction .............................................................................................................................................................. 11 Project Participation and Oversight ........................................................................................................................... 13 Organizational Roadmap ........................................................................................................................................... 15

2

Developing the Workload Assessment Model Phase 1–Understanding the Context .......................................................................................................................... 19 Phase 2–Time Study .................................................................................................................................................. 20 Phase 3–Time Sufficiency Survey ............................................................................................................................... 22 Phase 4–Site Visits ..................................................................................................................................................... 25 Phase 5–Focus Groups .............................................................................................................................................. 26 Phase 6–Final Case Weights ....................................................................................................................................... 28

3

Standards to Support Effective Assistance of Counsel Introduction .............................................................................................................................................................. 29 Interpreting the Results ............................................................................................................................................. 32 Conclusion ................................................................................................................................................................ 39

4

Time Study Choosing Time Study Locations ................................................................................................................................. 41 Selecting Case Types and Events ................................................................................................................................. 42 Calculating Time Study Case Weights .......................................................................................................................... 45 Determining Attorney and Staff Need ......................................................................................................................... 48

5

Time Sufficiency Survey & Site Visits Time Sufficiency Survey ............................................................................................................................................. 51 Site Visits ................................................................................................................................................................... 54 Challenges for Attorneys ............................................................................................................................................ 54 Challenges for Support Staff ....................................................................................................................................... 55

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Maryland Attorney and Staff Workload Assessment, 2005

Table of Contents, continued

6

Determining the Final Case Weights Introduction .............................................................................................................................................................. 57 Inside the Numbers ................................................................................................................................................... 57 Adjusting the Case Weights ........................................................................................................................................ 59 Attorneys in District Offices ....................................................................................................................................... 59 Attorneys in Statewide Divisions................................................................................................................................. 61 Support Staff .............................................................................................................................................................. 63 Final Review by the Advisory Committee .................................................................................................................... 65 Conclusion ................................................................................................................................................................ 67

Appendices ............................................................................................................................................................. 69

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Executive Summary Findings

caseload standards upon which to base its operating budget. To develop a rational and credible process to evaluate attorney and staff workloads, and to assess the resources required to provide an effective and competent defense for all clients, the OPD obtained the assistance of the National Center for State Courts (NCSC). Overall, this assessment resulted in a set of caseload standards that provide uniform and comparable measures of the number of attorneys and support staff needed to ensure that Maryland fulfills its constitutional obligation to provide effective assistance of counsel. Examples of these recommended standards, as compared with the American Bar Association (ABA) standards, are shown below for the OPD’s District Operations. Additional standards for the statewide divisions and for the OPD support staff are discussed in Chapter Three.

Excessive caseloads for public defenders jeopardize protection of the constitutional rights of the accused. Providing effective assistance of counsel is directly related to the number of public defenders and support staff available to handle the nearly 180,000 cases opened by the Office of the Public Defender (OPD) in Maryland each year. Over the last decade caseloads in Maryland have risen sharply; for that reason, attorney caseloads in the OPD far surpass national standards. As a result, attorneys are forced to spend less time on each case in order to stay current with active caseloads. As caseloads continue to rise without additional attorney and staff resources, the OPD is increasingly unable to meet its constitutional and statutory obligations. Consequently, the Maryland Legislative and Executive Branches requested that OPD develop

Figure 1: OPD Cases (FY 2003) per Attorney Compared to Recommended Caseloads, the ABA, and Managing for Results Standards FY 2003 Caseloads

Final Recommended Caseloads

Standards OPD Managing for Results

Rural

Suburban

Urban

Rural

Suburban

Urban

ABA

Felony Felony (including Homicide)

245 205

210 184

272 258

207 191

157 140

170 156

150 150

180 180

Misdemeanor Misdemeanor (including Traffic)

644 670

735 761

789 791

599 630

680 705

719 728

400 400

480 480

Juvenile

314

267

200

271

238

182

200

240

Note: OPD Managing for Results is 120% of the American Bar Association (ABA) standard.

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Maryland Attorney and Staff Workload Assessment, 2005

Application of these standards to the FY 2003 OPD caseload and March 2004 staffing levels results in the need for an additional 112.3 full time equivalent (FTE) attorneys to handle cases opened in the twelve district offices, 13.2 FTE attorneys in the five statewide divisions, and an additional 69.1 FTE staff positions to support operations throughout the State of Maryland. The March 2004 staffing levels included 35 new attorneys and 23.5 new support staff positions granted to the OPD via the Caseload Initiative. The Caseload Initiative, endorsed by the Maryland General Assembly and the Governor in 2003, provides for additional staff to be provided to the OPD over three consecutive years in order to relieve the agency from caseloads that exceed American Bar Association standards. Not included in this study are 62 additional attorney positions and 69.5 additional support staff positions allocated by Governor Robert Ehrlich and the Maryland General Assembly for fiscal years 2005 and 2006. Consequently, the implied need as determined by this study has partially been met. Nevertheless, this study provides an empirical basis to support the allocation of these positions and, more importantly, provides the MD OPD with caseload standards to use in the future based on the number of cases handled in any given year.

Project Design Throughout the life of the project, the OPD Advisory Committee provided oversight and critical decision making. The Committee, composed of representatives of OPD Administration and District Offices, was appointed by the Maryland State Public Defender. The Committee reviewed and approved the overall project design and reconvened at key points during the study to review, modify, and ratify the findings and recommendations of the NCSC project team. The NCSC designed the evaluation to assess the levels of attorney and staff workload associated with effective and efficient assistance of counsel for OPD clients throughout the state. The 18-month project followed six complementary phases: Phase 1 – Understanding the Context NCSC compiled an accurate count of cases opened by OPD (FY 2003), an inventory of the number of attorneys and staff in OPD offices throughout the state (March 2004), and developed an understanding of the processes and functions of attorneys and support staff. Phase 2 – Time Study NCSC measured the actual amount of time attorneys and staff spend handling cases of different types, from opening through post-disposition. More than 90 percent of the attorneys and support staff working in OPD offices across the state of Maryland recorded their work activities.

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Phase 3 – Time Sufficiency Surveys NCSC staff identified the barriers attorneys and support staff face in providing effective representation to OPD clients through web-based surveys. Over 54 percent of attorneys and 45 percent of support staff in OPD offices statewide completed the surveys. Phase 4 – Site Visits NCSC conducted structured interviews with attorneys and staff in three district offices, representative of rural, suburban, and urban jurisdictions. Attorneys and staff identified challenges they face under current resource levels, as well as procedures thought to be exemplary. Phase 5 – Focus Groups The NCSC team convened five focus groups (circuit court attorneys, district court attorneys, juvenile court attorneys, statewide division attorneys and staff). These groups referenced the qualitative concerns identified in Phases 3 and 4 to make recommendations on the final case weights.

Phase 6 – Final Case Weights The OPD Advisory Committee ratified the final recommended case weights. A consensus was obtained on attorney and staff workload standards that respond to observed deficiencies in service, while maintaining a reasonable relationship to current staffing levels and resource constraints. Subsequent chapters of this report describe the multiple methods and analytic strategies the NCSC used to measure attorney and staff workload, assess equity of allocation, and evaluate the effectiveness of current practices.

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Maryland Attorney and Staff Workload Assessment, 2005

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1 Project Overview Introduction The primary purpose of this project was to determine the number of attorneys and support staff the Maryland Office of the Public Defender (OPD) needs to provide effective service to the public. The Maryland General Assembly, and its budget committees in particular,1 has long been concerned with historic under-funding of OPD. Based on information contained in the Report on Office of the Public Defender FY 2004 Funding in Response to 2002 JCR Request, the General Assembly made an appropriation to OPD for a study of attorney and staff workload throughout the state. Consequently, OPD contracted with the National Center for State Courts (NCSC) to develop a clear measure of the number of attorneys and support staff OPD needs to provide effective and competent defense for all cases. Reaching this goal requires gauging the attorney and staff workload associated with the delivery of effective services to the clients they represent. The value of the workload standards lies in providing uniform and comparable measures of the need for attorneys and support staff while ensuring that budget requests are made on a sound and methodologically consistent basis. In the absence of such standards, OPD must develop budget requests on an ad hoc, piecemeal basis.

This report describes the methods and results of NCSC’s comprehensive program evaluation, conducted over an 18-month period during 2003-04, of OPD attorney and support staff workload. The primary goals of the project were to: • Develop a clear measure of attorney and staff workload in the districts and statewide divisions.

1

A fiscal year 2002 legislative performance audit

highlighted the critical need to establish attorney caseload standards and implement a case management system to help ensure effective

• Establish a transparent formula for OPD to use in assessing the appropriate levels of attorney and staff resources necessary to provide effective legal representation. Just outcomes in the criminal justice system require capable counsel for both the state and the defendant. Without appropriate resources, the ability of the OPD to carry out its constitutional and statutory mandate to provide effective assistance of counsel in criminal cases is compromised. Rising caseloads create numerous challenges to OPD’s ability to deliver quality service to all its clients. Between 1994 and 2002 the total number of cases opened in the Public Defender District Offices increased 38%, from 128,500 to 177,400 (See Figures 2 and 3). Despite this rapid increase in total number of annual cases, the OPD’s appropriations over this time have not included funding for additional attorneys.2 The caseloads of OPD attorneys have thus grown to levels that far surpass the national standards developed by the American Bar Association.

legal representation.

2

In April 2002, the legislature approved the creation

of ten attorney PINS for Baltimore City. However, no funding for these positions was provided.

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Maryland Attorney and Staff Workload Assessment, 2005

As caseloads rise, attorneys can and do work faster. But ever rising caseloads ultimately mean that attorneys spend less and less time on each case. For certain types of cases this problem is exacerbated by new legislation and court rules that require greater time and attention in meeting the rule as well as the spirit of the law. The challenge for OPD is to provide public defenders and support staff sufficient time to meaningfully meet constitutional guarantees by engaging their clients, conducting investigation and discovery activities, and preparing for hearings and trials—features fundamental to public perception of fairness and effective assistance of counsel. Translating attorney and staff workload into estimated attorney and staff need requires: Case weights—the average amount of time, by case type, an attorney or staff member needs to reasonably represent a client. Attorney and staff year values—the amount of time per year that a well-trained and efficient attorney and staff member has to do case-related work. NCSC’s workload assessment model “weights” cases to account for the varying com-

plexity of different types of cases, and provides an accurate means to assess the time required to effectively handle different types of cases. That is, it measures workload rather than caseload. Moreover, our workload assessment model allows for objective and standardized assessments of resource needs among districts that vary in population and caseload mix. By comparing measured workload to available attorney and staff time we can produce estimates of the number of attorneys and staff necessary to effectively handle the cases coming to the various districts and divisions. Our approach, which involves few complicated procedures, is sufficiently rigorous to both measure resource needs and evaluate resource allocations. Over the course of this project, the NCSC team thoroughly reviewed current OPD practices and made recommendations to improve the quality and efficiency of case processing. In the end, we produced a set of final case weights designed to provide attorneys and staff sufficient time to effectively represent all clients. The final case weights are recommended to the OPD Administration and to the legislature for adoption.

Figure 2:

Figure 3:

Overall Growth in the Number of Cases Opened by OPD 1994-2002

OPD Cumulative Caseload Growth Rate 1995-2002

200,000

40%

150,000

30%

100,000

20%

50,000

10%

0 1994 1995 1996 1997 1998 1999 2000 2001 2002

0% 1995 1996

1997

1998

1999 2000

2001

2002

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Project Participation and Oversight The workload model NCSC developed for the Maryland OPD employed a multi-faceted data collection strategy that drew on the direct participation of attorneys and staff statewide, two sets of site visits to selected district offices across the state, and the collection of relevant qualitative data. Our objective was to develop a workload assessment model, using widely accepted methods, able to readily determine the appropriate levels of attorneys and staff needed, and ensure their equitable allocation,

across the twelve district and five statewide division offices. Because of important differences in workloads, operations, and practices among the twelve districts, we divided them into three groups: urban (District 1); suburban (Districts 5, 6, 7, 8, 9, and 10); and rural (Districts 2, 3, 4, 11, and 12). NCSC staff worked closely with OPD administration, and representatives from each jurisdiction, to encourage participation, manage data collection, and facilitate distribution of survey materials.

Figure 4: Maryland OPD Districts

12 11

10

9

8 1

3

6 1

Baltimore City

6

Montgomery

2

Dorchester

7

Anne Arundel

Somerset Wicomico

8

Baltimore County

9

Harford

10

Carroll Howard

11

Frederick

7 5

Worcester 3

Caroline Cecil Kent Queen Anne’s Talbot

Washington 4

Calvert Charles St. Mary’s

5

Prince George’s

12

Allegany Garrett

4

2

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Maryland Attorney and Staff Workload Assessment, 2005

Two separate advisory groups provided oversight and guidance throughout the life of the study. The first group, the OPD Advisory Committee, appointed by the Maryland State Public Defender, was composed of fifteen representatives of OPD Administration and District Offices. This Committee oversaw the development of our workload assessment methodology, and worked closely with OPD administration staff and NCSC project staff to clarify the scope of the project, determine site selections, select attorney and staff participants, and keep the Maryland public defense community informed on the progress of the project. The Committee worked diligently over the course of the eighteen months of the study to identify relevant district-level issues, determine the relevant workload factors and tasks associated with effective representation in each kind of case, and appraise the results of each phase of the study. This body ultimately reviewed and finalized all project results.

The second advisory group consisted of five structured focus groups (i.e., District Court, Circuit Court, Juvenile Court, Statewide Divisions, and Support Staff) made up of OPD attorneys and support staff from across the state. The focus groups provided key input during several phases of our project. We initially assembled the groups to review and refine several significant aspects of the project design, including the survey instruments we developed in conjunction with the OPD Advisory Committee. We re-assembled the focus groups during later phases of the project for a structured assessment of the workload standards. Their work helped ensure a valid, reliable evaluation framework to measure the level of resources the OPD needs to properly discharge its duties.

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Organizational Roadmap The Maryland OPD Workload Assessment was completed through a six-phase process, each with a distinct goal. The project team designed the various study methods and executed the tasks needed to achieve the individual goals. The workload assessment involved collecting a large volume of data from throughout the state, and examining that data with various analytical models, all of which we describe in this report. Figure 5 provides a quick scan of the phases of the project and their significance for our workload assessment, and provides the reader with an orientation to the scope and contents of our report. The project report is divided into three distinct, yet interrelated, parts. Part I: Design, Findings, and Recommendations In Chapters 1, 2, and 3 we explain our approach and discuss the primary results and implications of all six project phases. Chapter 1 serves to introduce the study and ends with a concise summary of the goals, methods, and conclusions of each project phase. Chapter 2 offers a comprehensive overview of our analytical strategy and a rundown of key findings from each stage of the study. In Chapter 3 we show the final results of the project and present the implications of our model for attorney and staff resource needs across the OPD district offices and statewide divisions.

Part II: Project Development and Methodology Chapters 4 to 6 offer an in-depth look into the methodology of the project and the different phases of the research process. We have included a detailed overview of the time study (Chapter 4), the time sufficiency surveys and site visits (Chapter 5), and the focus groups and structured evaluation process (Chapter 6). Part III: Appendices We have included all of our primary data sources and results in the Appendices.

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Maryland Attorney and Staff Workload Assessment, 2005

Figure 5: Project Overview – Goals, Methods, Output, Conclusions

Phase 1

Understanding the Context

Phase 2

Time Study

Phase 3

Time Sufficiency Surveys

Phase 4

Site Visits

Phase 5

Focus Groups

Phase 6

Final Case Weights

Goal

Analysis or Method

Compile an accurate count of the cases opened by OPD, compile an inventory of the number of attorneys and staff in OPD offices throughout the state, develop an understanding of the processes (functions) employed by attorneys and staff.

Review of data on the number of cases opened by OPD FY 2003 and adjust figure to account for paneled cases. Review and finalize data on the number of attorneys and support staff by location. Conduct site visits to representative district offices to develop lists of critical job duties.

Measure the actual amount of time attorneys and staff spend handling cases of different types from opening through post-disposition.

Time study conducted over a four to six week time period for attorneys and a two week period for staff. Participation involved more than 800 attorneys and staff in twelve district offices and five statewide divisions tracking their time, differentiating by case type and functional area.

Identify barriers for attorneys and support staff to providing quality representation to OPD clients.

Web-based surveys designed to gather attorney and support staff input on adequacy of current resource levels. Over 54% of the attorneys and 45% of the support staff in OPD offices statewide completed the surveys.

Interview attorneys and staff on the challenges faced under current resource levels.

Structured interviews with attorneys and staff were conducted in three representative district offices in August, 2004. Input sought on procedures thought to be exemplary as well as practices open for improvement.

Utilize the qualitative concerns related to workload identified in Phases 3 and 4 to make adjustments to the time study results.

5 Focus groups (circuit, juvenile and district attorneys, statewide division attorneys and staff) of subject matter experts to review and comment on current practice (as measured by the time study).

Obtain consensus on new attorney and staff final case weights that respond to observed deficiencies in service quality, while maintaining a reasonable relationship to current staffing levels and resource constraints.

Use the final recommended case weights to calculate appropriate attorney and support staff resource levels and compare to current levels to assess resource need across the state.

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Output

Conclusion

Reference

Three groupings of districts based on size: rural, suburban and urban. Defined case types and functional areas for use in the time study phase.

Results of this phase provide a framework for the overall workload evaluation in terms of the key case types handled by OPD, the current level of resources and caseload, and the key functions performed by attorneys and staff.

Chapter 2 Figure 6: Number of Maryland OPD Attorneys and Staff During FY 2004 Figure 7: Attorney and Staff Functional Areas Appendix 1: Trial Attorneys in District Offices–Case Types, Functional Areas, Non-Case-Related Tasks Appendix 2: Statewide Divisions–Case Types, Functional Areas, Non-CaseRelated Tasks Appendix 3: OPD Staff–Case Types, Functional Areas, Non-Case-Related Tasks

Time study case weights developed for 17 case types for the attorneys in the districts and 9 for staff in the districts. Results distinguished work by three district size categories. For the statewide divisions there were 12 case types for attorneys and 5 for staff. Model accounts for fact that case types vary in the amount of staff time and attention required.

Time study results document the current work practices of OPD attorneys and staff across the state. Results are a springboard to discuss qualitative considerations and a move from the way things are currently done towards the way things ought to be done to provide the effective assistance of counsel.

Chapter 4 Figure 15: Figure 16: Appendix 4: Appendix 7:

Performance survey gave attorneys and staff perspective on sufficiency of time to handle key work-related tasks organized into functional areas.

Data from the time sufficiency surveys were used to evaluate the time study results to insure that they provide sufficient time for quality performance.

Chapter 5 Figure 20:

Information on prioritization of attorney and staff functions and identification of compromised activities under current resource levels.

The rising caseloads at OPD resulted in a number of constraints in the ability to provide effective representation in criminal proceedings.

Chapter 5 Figure 9: Tasks Reported as Compromised in the Districts During Site Visits

Set of quality adjusted case weights developed for the attorneys and staff in in the districts by three district size categories, and for attorneys and staff in the statewide divisions.

The revised case weights document and incorporate changes deemed necessary to provide effective representation and improve the quality of justice in the state of Maryland. Rationale was detailed for each recommended change to current practice.

Chapter 6 Figure 10: Time Needed to Provide Effective Assistance of Counsel Figure 23: Final Case Weights for Attorneys in District Offices, Based on FY 2003 Caseload Appendices 14 - 21: Case Weight Construction

The final case weights represent an informational and planning tool for OPD. The model provides an objective measure for the executive and legislative branches to provide reasonable resource levels statewide, and support overall accountability for the use of state funds.

The final case weights, developed through a comprehensive research design, help ensure that OPD is operating based on attorney and staff resource levels associated with effective service. The final case weights provide an objective tool to measure OPD caseloads into the future.

Chapters 3 and 6 Figure 11: Attorney and Staff Need Figure 13: OPD Cases (FY 2003) per Attorney Compared to Recommended Caseloads, the ABA, and Managing for Results Standard Figure 14: Staff per Attorney Ratios (based upon final case weights) Appendix 6: State by State Comparisons of Maximum Number of Cases per Attorney Figure 26: Implied Need for Attorneys in Statewide Divisions Figure 29: Implied Need for Support Staff

Case Types, Functional Areas, and Non-Case-Related Activities Calculating Time Study Results Time Study Results Percent of Attorney Time in District Offices by Case Type and Function Appendix 8: Percent of Division Attorney Time by Case Type and Function Appendix 9: Percent of District and Division Staff Time by Case Type and Function

Average Attorney and Staff Responses From Time Sufficiency Survey by Functional Area Appendix 10: Sufficiency of Time Results: Attorneys in District Offices Appendix 11: Sufficiency of Time Results: Division Attorneys Appendix 12: Sufficiency of Time Results: District Staff Appendix 13: Sufficiency of Time Results: Division Staff

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Maryland Attorney and Staff Workload Assessment, 2005

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2 Developing the Workload Assessment Model

T

he NCSC team developed the workload assessment model with multiple methods and analytic strategies designed to measure attorney and staff workload, assess the equity of resource allocation, and gauge the effectiveness of current practices. We describe the six primary phases of the project below.

While the staffing inventory determined the number of persons employed by OPD, it was of limited use in clarifying attorney and staff job responsibilities in relation to different types of cases. In developing a set of case weights it is important for us to clarify the primary types of

Developing the Workload Assessment Model

Figure 6:

Phase 1–Understanding the Context Because a systematic assessment of attorney and staff workload had never been done in Maryland, NCSC staff needed first to understand the basic structure of the Office of the Public Defender (OPD), and to clarify the work responsibilities of OPD attorneys and staff. As an accurate inventory of caseload and attorney and staff levels is critical to assessing the current workload facing the OPD,3 our first order of business was to determine the number of new cases opened in Fiscal Year 2003 in each district office and statewide division, and the total number of attorneys and support staff in each office and division. OPD provided staff lists that included each employee’s job title, status (partor full-time), work location, and work division (e.g., circuit, district, juvenile). The number of full time equivalent (FTE) attorneys and staff in each jurisdiction and office is presented in Figure 6. As shown, at the beginning of our study there were 384.4 FTE attorneys and 306.2 FTE staff in the district offices, and 67.4 FTE attorneys and 36.8 FTE staff in the statewide divisions.

Number of Maryland OPD Attorneys and Staff During FY 2004 Attorneys

Staff

District 1 District 2 District 3 District 4 District 5 District 6 District 7 District 8 District 9 District 10 District 11 District 12

166.9 15.5 15.0 14.0 38.5 31.0 17.0 34.0 11.0 16.5 18.0 7.0

133.1 20.0 16.0 8.0 23.0 27.6 16.0 20.5 9.0 13.0 14.0 6.0

Total

384.4

306.2

Appellate Capital Defense CINA Collateral Review Mental Health

22.9 4.0 19.5 15.5 5.5

10.5 1.0 7.5 7.0 10.8

Total

67.4

36.8

3

This report does not assess the need for Central

Administrative Staff. As such, we did not include staff working in the Personnel, Fiscal, Training, Forensics, Innocence Project, and Information Technology divisions in the staff inventory.

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Maryland Attorney and Staff Workload Assessment, 2005

The case weights represent the average amount of

time an attorney and/or staff spends handling each type of case from the opening of a case through post-dispositional activities.

work (function) performed. To this end, NCSC staff met in November 2003 with both attorneys and staff in select district offices to better understand the flow of cases and the specific functional activities that characterize their work. It was essential that we have a basic knowledge of workflow in preparing the materials used in the collection of time study data (Phase 2), our statewide time sufficiency surveys (Phase 3), and our interview protocols for future site visits (Phase 4). We used the concept of functional area to group basic job duties and responsibilities into categories such as bail reviews/detention hearings, client contact, investigation and discovery activities, legal research, and waiting time in court. The different functional areas are presented in Figure 7. A complete overview of specific activities associated with each function can be found in Appendices 1-3.

Figure 7:

Phase 2–Time Study The second phase of the project involved a time study of attorney and staff workload in all twelve districts and the five statewide divisions of OPD. The information we gathered through the time study clarified the amount of time, by functional area, attorneys and support staff currently spend on different types of cases. The statewide time study allowed us to develop a set of initial case weights that are both reliable and a valid representation of current practice.4 Case weights are crucial to our study because they allow us to capture the reality that different types of cases require different amounts of time and attention from defense counsel and support staff. Focusing on raw case counts without allowing for differences in the amount of work associated with each case type creates an opportunity for the misperception that equal numbers of cases opened for two different case types result in an equivalent amount of work. For example, a typical violent felony case has a greater impact on resources than does a typical incarcerable traffic case.

Attorney and Staff Functional Areas District Attorneys

Functional Areas Division Attorneys

District and Division Staff

Bail Reviews/Detention Hearings General Preparation

General Preparation Client Contact

Intake Records Management

Client Contact Investigation and Discovery Activities Investigator Duties

Investigation and Discovery Activities Initial Hearings Negotiated Disposition

Secretarial Services Investigative Services Legal Research

Legal Research Pretrial Hearings Negotiating Plea Alternatives

Preparing for Contested Disposition Contested Disposition Social Work Functions

Social Work Interpreter Services Direct Attorney Support

Trial/Contested Adjudication Sentencing/Disposition Social Work Functions and Mitigation

Preparing for Post Disposition Matters Post Disposition Hearings Staff Duties

In-Court Support Court/Mail Run Docket Preparation and Management

Post Trial/Post Adjudication Violations of Probation Modifications/Sentence Reviews

Waiting Time Court/Hearings Waiting Time Institution

General Public Relations

Staff Duties Waiting Time Court Waiting Time Jail

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Beginning in March 2004 more than ninety percent of the attorneys and support staff in the districts and statewide divisions participated in the time study. Attorneys in the districts tracked their time for four weeks, attorneys in the statewide divisions for six weeks, and staff tracked for two weeks. Attorneys and staff carefully differentiated their time by case type and by the primary type of work they performed, using the functional areas displayed in Figure 7. We calculated the initial case weights by summing all time recorded for each case type, and then dividing by the number of cases opened for each case type in FY 2003. This result gave us the average amount of time, attorneys and staff, currently spend handling each particular type of case. The initial case weights are displayed in Appendix 4 and an overview of the calculations are provided in the box out.5

5

A complete overview of our assumptions and calculations can

be found in Chapter 4. Included is a discussion of our decision to develop separate case weights for rural, suburban, and urban jurisdictions in the districts.

The results of the time study give us a good picture of current OPD practice. By closely examining how cases are currently handled, we can assemble data that makes it possible to identify particular work areas where attorneys and staff do not have sufficient time to reasonably conduct their business due to excessive caseloads. From this assessment, adjustments can be made to the time study results to build in sufficient time for practice to evolve from how it is currently getting done, under present resource constraints, to how it should be getting done.

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Calculating the Time Study Case Weight for Violent Felony Cases in Rural Jurisdictions The initial case weight of 1,353 minutes for violent felony cases in the rural districts means that, on average, cases of this type currently take, from the opening of the case through post-disposition, 1,353 minutes of an attorney’s time. We arrived at this case weight by dividing the weighted time in minutes (861,884) reported in the time study by the number of violent felony cases (637) opened in FY 2003.

Time in minutes

861,884

divided by

Number of open cases

637

equals

Time study case weight (minutes)

=

1,353

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Maryland Attorney and Staff Workload Assessment, 2005

Phase 3–Time Sufficiency Survey The third phase of our project involved a statewide, web-based time sufficiency survey of attorneys and support staff. The primary purpose of this survey is to determine whether the time currently available to them is sufficient to handle the specific activities and functions essential to effective representation. As a complement to the statewide time study, this survey gave all attorneys and staff the opportunity to say where current practice was acceptable, as well as to identify problematic areas. The results provided an important context for interpreting the findings of the time study. We used the information from the survey to develop a set of general themes for discussions with attorneys and support staff during the second site visits (Phase 4) and to inform and orient the development of our final recommended case weights (Phases 5 and 6). The specific tasks and activities addressed in this survey were organized around the same attorney and staff functional areas we used to structure the time study. We developed separate surveys for attorneys and staff in the district offices and for those in the statewide divisions. As with the time study, we asked all attorneys and staff statewide to participate. Over 54 percent of attorneys and 45 percent of support staff in OPD offices statewide completed the surveys.

We asked attorneys and staff if they “generally have enough time to…” perform tasks associated with their essential job duties. The specific tasks and functions that attorneys and staff identified as those they have insufficient time to complete draw our attention to areas that may warrant additional resources. An overview of the specific tasks and functions included in this survey can be found in Figure 8. A more complete discussion of the time sufficiency surveys can be found in Chapter 5.

23 *

Figure 8: Time Sufficiency Survey––Tasks and Functions for Trial Attorneys in the District Offices

Functional Areas

Tasks

Bail Reviews/ Detention Hearings

• Follow up on information gathered at bail review or detention hearing for subsequent bail review or detention hearing • Prepare for and participate in bail revocation hearings • Seek timely review of master’s detention order • Prepare for and participate in bail review hearings or detention hearings

General Preparation

• Prepare and argue a motion for pretrial release • Consult with other attorneys, if relevant to case • Review the charging documents and other non-testimonial evidence

Client Contact

• Keep the client informed of the status of his or her confinement and post trial proceeding and speak with the client’s family members or friends regarding the case, conditions of confinement, location, safety, disabilities, drug use, etc. • Interview the client early in the case to determine all relevant facts known to the accused • Have adequate access to clients who are in custody • Inform the client of his or her rights at the earliest opportunity and build a rapport with the client that instills trust and confidence • Keep the client informed of the developments in the case and respond to all client correspondence • Promptly explain to the client all significant plea proposals and engage the client in meaningful plea discussions • Explain to the client the meaning and consequences of the court’s judgment and advise the client of post trial options

Investigation and Discovery

• • • • • • •

Legal Research

• Conduct case-related and general legal research

Pretrial Hearings

• • • • • •

Exploring Disposition Without Trial

• Engage in meaningful plea discussions with the prosecution and the judge • Prepare the client for entry of a guilty plea

Visit the crime scene, if necessary Identify, locate, and confer with appropriate independent experts, if necessary Direct the activities of investigative staff Conduct a prompt investigation of the circumstances of the case Consult with social workers and other professionals Identify and contact witnesses Identify and review records, physical evidence, NCR and competency evaluations • Review the discovery package, confer with the State’s Attorney regarding discovery and prepare and submit discovery requests including motions to compel discovery, when necessary

Prepare for and participate in arraignments Prepare for and participate in competency hearings Prepare for and participate in preliminary hearings Prepare for and participate in status conferences Prepare for and participate in waiver/transfer hearings Prepare for and participate in motion hearings

continued

* 24

Maryland Attorney and Staff Workload Assessment, 2005

Figure 8: Time Sufficiency Survey––Tasks and Functions for Trial Attorneys in the District Offices, continued

Functional Areas

Tasks

Trial/Contested Adjudication

• • • • • • • • • •

Prepare exhibits and other presentation materials for use during trial Prepare and deliver an opening statement Discuss potential stipulations with the prosecution and the court Prepare for direct and cross-examination of witnesses, including arranging for appearance of witnesses Prepare for jury selection and conduct voir dire Prepare and argue motions during trial Prepare proposed jury instructions and argue for inclusion of appropriate instructions Prepare and present a closing argument Confront the prosecutions case, including cross-examination Present the defense case

Sentencing/ Disposition

• • • • •

Contact witnesses and arrange for expert testimony for sentencing hearing Research and locate alternative sanction options and program placements Review the determination of restitution Review the presentence report or sentencing memo Prepare for sentencing (review file, determining potential sentence, prepare arguments)

Post Trial Activities

• Monitor the conditions of placement and the adherence of DJS to court orders in providing necessary services for juveniles • Adequately assist and cooperate with appellate counsel • Prepare for and investigate alleged probation violations • Prepare and argue post trial motions before the court • Prepare for and participate in juvenile and drug court review hearings • Research and prepare post trial motions (e.g., motion for new trial, motion for reconsideration, motion for bail pending appeal, exceptions on master’s reports, three judge panel review) • Prepare for and participate in probation violation hearings

Non-Case-Related Activities

• Evaluate and provide testimony on pending legislation • Participate in public outreach and education (e.g., participation in related community programs, development and monitoring of programs which will affect OPD clients and their representation) • Participate in the administration of the office (including the development of agency policies and priorities, meaningful committee work, program ideas, mentoring and supervising and evaluating staff) • Participate in continuing legal education and training

25 *

Phase 4–Site Visits

Figure 9:

In the fourth phase of our project we interviewed attorneys and support staff on the impact of current resource levels on operations. Our goal in visiting a select number of OPD offices was to gain an in-depth understanding of both the nature of OPD work and the challenges attorneys and staff face in handling cases. NCSC staff met with attorneys and staff in three district offices, one each representing rural, suburban, and urban jurisdictions (Districts 1, 3, and 5). These interviews allowed us to document work procedures and practices thought to be exemplary, as well as those that attorneys and staff identified as areas where resource limitations impact their ability to perform their duties effectively. The site visits provided an opportunity to expand upon our findings from the time sufficiency surveys, obtain a more comprehensive view of work challenges and bottlenecks, and understand how additional staff might help meet these challenges. The site visits also helped inform and orient the quality adjustment process described in Phases 5 and 6. Figure 9 displays the specific tasks that attorneys and staff felt were compromised as a result of current resource constraints.

Tasks Reported as Compromised in the Districts During Site Visits Attorneys

Bail Reviews/Detention Hearings • Prepare for and participate in bail reviews or detention hearings Client Contact • Keep the client informed of the status of his or her confinement and post trial proceeding and speak with the client’s family members or friends regarding the case, conditions of confinement, location, safety, disabilities, drug use, etc. • Keep the client informed of the developments in the case and respond to all client correspondence • Have adequate access to clients who are in custody Investigation and Discovery • Direct the activities of investigative staff Legal Research • Conduct case-related and general legal research Pretrial Hearings • Prepare for and participate in arraignments Sentencing/Disposition • Research and locate alternative sanction options and program placements • Monitor the conditions of placement and the adherence of DJS to court orders in providing necessary services for juveniles Non-Case-Related Activities • Participate in the administration of the office (including the development of agency policies and priorities, meaningful committee work, program ideas, mentoring and supervising and evaluating staff) • Evaluate and provide testimony on pending legislation • Respond to outside requests for information & assistance • Represent OPD in relevant forums, task forces, committees

Staff Intake • Obtain statement of client, witness information Records Management • Purge file folders and documents • Create a new case and enter data into the case tracking system (CTS) • Search court records for future hearing dates Secretarial Support • Take phone messages and handle correspondence • Type notices of entry of appearance, motions and subpoenas, type notes for attorneys Investigative Services • Interview prosecution and defense witnesses Social Work • Evaluate programs and maintain a database of available programs • Identify and develop mitigation information • Work with probation on the development of the pre-sentence investigation; identify sentencing and placement alternatives for clients In-Court Support • Provide in-court support for arraignments, bail review, shelter hearings, preliminary hearings and regular dockets

* 26

Maryland Attorney and Staff Workload Assessment, 2005

Phase 5–Focus Groups

6

We convened five focus groups, representing circuit court attorneys, district court attorneys, juvenile court attorneys, statewide division attorneys, and support staff in October 2004 to consider the results from the time study we conducted in March. The time study case weights represent “what is,” not “what ought to be.”6 Accordingly, these weights did not capture the time that may be necessary for attorneys and staff to perform essential tasks and functions effectively. The focus groups exam-

During this study, which preceded the full

effect of new staffing from the Caseloads Initiative, some attorneys had caseloads double and triple the ABA standards.

*

Inside the Numbers – Rural Misdemeanor Jury Trial/Appeal The case weight that came out of our initial time study for Misdemeanor Jury Trial/Appeal for attorneys in rural districts, a composite of the several different events or functions that occur over the life of such a case, was 227 minutes. We constructed this case weight by multiplying the amount of attorney or staff time an event takes, when it occurs, by the frequency of that event. Some events, such as Pretrial Activities/Preparation, occur in every case. The time study indicated that attorneys in rural districts spend an average of 99 minutes per case on Pretrial Activities/Preparation. Because this happens in every case, we applied the full 99 minutes to the case weight (99 x 100% = 99). On the other hand, some events occur far less frequently and consume less time. Legal Research, for example, only occurred in 40% of the cases in our study, and attorneys reported spending an average of only 33 minutes performing this task. Thus, the contribution of Legal Research to the overall case weight was only 13 minutes (33 x 40% = 13).

Event

Pretrial Activites/Preparation Client Contact Legal Research Trial Sentencing/Disposition Post Trial Other*

Event Time (in minutes)

99 47 33 294 9 42 43

Event Frequency (% of Cases)

x x x x x x x

100% 100% 40% 5% 90% 5% 100%

Time Study (Preliminary) Case Weight *Includes Investigative Duties, Social Work Functions, Staff Duties, and Waiting Time (court and jail)

Contribution to Time Study Case Weight

= = = = = = =

99 47 13 15 8 2 43 227

ined current practices as measured by the time study (Phase 2), the sources of concern identified by the time sufficiency survey (Phase 3), current resource constraints and changing business practices, such as new court procedures, new legislation, new technologies, and internal managerial improvements, gleaned from the site visits (Phase 4), as well as personal experiences to make recommendations on the final attorney and staff workload standards. We asked the participants of each focus group to bring their expertise to bear in assessing the quality of current case processing and to make recommendations to the OPD Advisory Committee for potential adjustments to our case weights. The focus groups first reviewed the time study case weights by primary event (or function). Reviewing the time study case weights by both overall time per case type and time per function helped clarify the way work is currently begin done and enhanced the evaluation of these case weights.

27 *

To aid this exercise, we broke the case weights down into their individual event components. This allowed the subject matter experts to look “inside” each of the case weights to understand where and how attorneys and staff currently spend their time handling cases. The preceding box out illustrates these concepts for attorneys in rural districts handling Misdemeanor Jury Trial/Appeal cases. In steps two and three, we asked the focus groups to consider what adjustments to the time study results might be needed by each case type and function. We asked each group to identify areas of concern with regard to current practice, as well as to identify the amount of time necessary to ensure the effective representation of counsel. When a group decided that an adjustment to a case weight was necessary, we asked them to provide a rationale and justify any increase in attorney or staff time. The following box out illustrates the review process

as it worked with a focus group of circuit court attorneys adjusting the case weight for violent felonies in urban districts.

*

Adjustments to Urban Violent Felonies Our initial time study indicated that attorneys in urban District offices spend an average of 908 minutes on every violent felony case. During our site visits, attorneys in these offices indicated that they felt constricted by the sheer volume of violent felony cases. Although they were able to resolve their cases, the members of the focus group believed the limited amount of time currently available to attorneys in these cases hampered the ability of OPD to carry out its constitutional and statutory mandate to provide effective assistance of counsel. For example, the time study indicated that these attorneys spend an average of 441 minutes on Pretrial Activities/Preparation per violent felony. But data from our site visits indicated that attorneys felt that they were currently spending insufficient time coordinating the activities of investigative staff. Therefore, we adjusted the weight for Pretrial Activities/Preparation to 700 minutes in order to provide for a more thorough investigation of the circumstances surrounding alleged crimes. We made additional adjustments in a similar manner to other components of the time study case weight as well. The result of all of the adjustments was to increase the case weight for these types of cases to 1,528 minutes of attorney time, up from the initial weight of 908 minutes, an overall difference of 620 minutes. A more complete discussion of the quality adjustment process and results for attorneys and staff can be found in Chapter 6.

Event (Adjustments in Bold)

Event Time (in Minutes)

x

Pretrial Activities/Preparation Client Contact Legal Research Trial Sentencing/Disposition Post Trial Other*

441 123 51 612 6 7 190

x x x x x x x

700 360 120 720 90 15 156

Event Frequency Contribution to (% of cases) = Final Case Weight

100% 100% 100% 15% 80% 80% 100%

Final Case Weight *Includes Investigative Duties, Social Work Functions, Staff Duties, and Waiting Time (court and jail)

= = = = = = =

441 123 51 92 5 6 190

700 360 120 108 72 12 156

908 1,528

* 28

Maryland Attorney and Staff Workload Assessment, 2005

Phase 6–Final Case Weights In the final phase of our study the OPD Advisory Committee offered extensive review and comment. All of the changes suggested by the focus groups (Phase 5) were reviewed and either accepted, rejected, or further adjusted by the Advisory Committee. The Committee compared actual staffing patterns to those recommended by the quality adjustment process. Our overall goal in this phase was to arrive at a consensus on new attorney and staff workload standards, a consensus that responded to deficiencies in service quality yet maintained a reasonable relationship to current staffing levels and budget constraints.

The following chapter describes our efforts to build a final model that ensures sufficient resources to provide effective representation to OPD clients. The chapter presents our final case weights and details their implications both in terms of appropriate caseload levels per attorney and the additional resources required to meet those levels.

29 *

3 Standards to Support Effective Assistance of Counsel Introduction In this chapter we will explain the workload assessment model we developed for the Maryland Office of the Public Defender (OPD). Our primary goal was to create a model that supports the efficient use of resources while ensuring effective assistance of counsel for OPD clients throughout the state. The methods and instruments we developed for this study reflect how we define the terms efficient and effective, as well as the interplay between them. The efficient solution often connotes, in everyday language, the fastest or cheapest approach. This is not the formal definition of efficiency, nor is it the one we use. We prefer to think of efficiency as the degree of organizational effectiveness, because this notion focuses attention on the goal of efficiency: the most productive use of resources to produce the most of what an organization values. Clearly, the critical goal of OPD is to use resources efficiently to achieve effective representation for its clients. Moreover, we must consider resource levels within the larger context of the criminal justice system. Basic fairness within our adversarial system of justice requires that both sides, the prosecution and the public defense, be budgeted at levels commensurate with measured and established need.7

When the workload of public defense

Developing thelevel, Workload Assesscounsel rises beyond an acceptable quality representation and the ability of OPD to carry ment Model out its constitutional and statutory mandate is compromised. Unlike private attorneys, public defenders cannot pick and choose their cases. Therefore, when public defenders have too many cases their only option is to ration the time they devote to each case, and at least some cases will not get the time and attention they deserve. As a result, attorneys may not have sufficient time or opportunity to: • Provide timely representation to all clients (attorneys may be delayed in entering their appearance at the crucial early stages of a case) • Thoroughly prepare for all proceedings in a case • Communicate directly and in a timely manner with the accused • Fully interview the accused and other witnesses to explore pertinent facts in a case • Conduct a thorough investigation of all relevant facts and circumstances in each case • Duly focus on each case and provide effective trial court representation • Prepare for and meaningfully participate in the sentencing process Excessive caseloads jeopardize defendants’ protection of the constitutional rights of the accused. A charge of ineffective assistance of counsel makes cases vulnerable to attack on appeal, and increases the likelihood of retrial, with all associated costs.

7

In Maryland, there is a prevailing concern that

resources for law enforcement and prosecutors have outpaced those to public defenders’ offices in recent years (Report on Office of the Public Defender FY 2004 funding in response to 2002 JCR Request, pp. 17-18).

* 30

8

Maryland Attorney and Staff Workload Assessment, 2005

All project phases are reviewed in Chapter 2.

Complete discussion of methods and results during each phase is detailed in Chapters 4-6.

Additionally, the limited number of support staff at OPD forces attorneys to perform some of their own secretarial and investigative tasks, as well as some of the social work aspects of their cases. Thus, the attorney’s time, already scarce, is made even scarcer by the need for them to perform tasks that would otherwise be performed by support staff. Efficient resource use depends on an efficient division of labor and the appropriate complement of attorneys and support staff. These considerations led us to develop a workload model that recognizes existing budget constraints, yet is responsive to meeting the constitutional rights of the accused by ensuring the effective assistance of counsel. The promise of public defense can be fulfilled when attorneys have sufficient time to effectively manage caseloads, with the right mix of investigators, paralegals, social service workers, and other support staff to get the work done efficiently. Organizations, such as the American Bar Association and the National Legal Aid and Defender Association, have labored at length to develop detailed generic standards for effective assistance of counsel. However, these standards are not linked to a time component or to differences among localities, and hence, fail to provide detailed guidance on the attorney and staff levels necessary to accomplish recommended practices. Consequently, the Maryland OPD has taken up the challenge to formalize the attorney and staff levels necessary to the goals of fairness and quality in public defense.

Our model is based on a set of case weights that vary by case type, by size of jurisdiction for the district offices, and by area of practice for the five statewide divisions. Following completion of the first four phases of our project, select focus groups of attorneys and staff members from across the state convened for a quality adjustment process.8 The focus of these meetings was to use the data we generated through the time study, the time sufficiency survey, and site visits to arrive at a set of final case weights––one for each case type––that was recommended to the Advisory Committee. The stated assumption of this process was that the time study results represented default or baseline standards. We structured the evaluation/adjustment process so that each focus group was able to make adjustments to specific events or functions within each case weight. When a group decided that an adjustment to a case weight was necessary, we required the group to justify the adjustment. Finally, the OPD Advisory Committee reviewed all suggested adjustments, and either accepted, rejected, or adjusted them further. The final case weights are presented on the following page. We generated separate case weights, expressed in minutes, for each specific case type handled by OPD, and each represents a case from the time it is opened through the resolution of all post trial matters. The final case weights represent the amount of time sufficient to provide a reasonable and satisfactory level of representation to indigent clients. These case weights, based on extensive and structured input from public defenders and staff throughout Maryland, provide an explicit estimate of how much time, by case type, is required to provide effective assistance of counsel.

31 *

Figure 10: Time Needed to Provide Effective Assistance of Counsel

Final Case Weights (in minutes) Attorneys in District Offices

Rural

Suburban

Urban

Division Attorneys

Capital (Death Notice Not Filed)

25,740

25,740

25,740

Appellate

Capital (Death Notice Filed)

87,840

87,840

87,840

Criminal Appeals

3,404

1,438

1,579

1,528

CINA - TPR Appeals

2,795

827

1,043

645

Court of Appeals

5,301

7,087

7,087

5,087

236

178

238

Capital Defense

16,636

District Court Criminal

149

147

116

CINA

District Court Traffic

100

97

83

CINA

588

Child Support

117

171

156

Termination of Parental Rights

698

Juvenile

339

385

466

Juvenile Violation of Probation

35

30

30

Collateral

Violations of Probation Circuit

90

90

90

Post Conviction

51

Parole Revocations

Violent Felony Non-Violent Felony Homicide Misd. Jury Trial Demands/Appeals

Modifications/Sentence Reviews Circuit

120

122

Violations of Probation District

45

45

45

Application for Leave to Appeal

Modifications/Sentence Reviews District

88

72

45

Mental Health

Preliminary Hearings District

11

15

5

N/A

N/A

912

Drug Treatment Court

Staff in District Offices

Felony

Rural

Suburban

Urban

1,481 328 1,051

Involuntary Commitment

103

Not Criminally Responsible

569

Incompetent to Stand Trial

417

Division Staff

774

738

544

2,814

3,643

2,235

Misd. Jury Trial Demands/Appeals

142

84

104

CINA

154

District Court Traffic

174

153

121

Collateral Review

295

Mental Health

115

Homicide

Child Support

152

155

95

Juvenile

377

366

411

Drug Treatment Court

N/A

N/A

1,199

Modifications/Sentence Reviews Violations of Probation

78

64

73

128

117

92

Appellate

1,243

Capital

1,835

* 32

Maryland Attorney and Staff Workload Assessment, 2005

Interpreting the Results There are several ways to use the final case weights. First, the weights can be applied to open cases to determine the number of attorneys and support staff needed by OPD. One can also compare the existing number of attorneys and support staff to estimated need to determine the number of additional positions OPD needs. Second, because the case weights embody what we believe to be a reasonable amount of time per case, the weights can be translated into the number of cases that can effectively be handled per attorney. One can then compare our results to the recommended ABA standards, as well as information on public defender caseloads from other states. Third, as we built separate models for attorneys and support staff, one can combine the results of each to estimate appropriate attorney to staff ratios. From these ratios, such as the number of attorneys per secretary, number of attorneys per investigator, and number of attorneys per paralegal, OPD can build recommendations on reasonable staffing levels. Developing these implications required that we assemble information on attorney and staff workload for each particular jurisdiction and division. Initially, we had to determine the amount of time attorneys and staff have available each year to get their work done. Attorney Year and Staff Year Value The attorney year and staff year values represent the amount of time per year that attorneys and staff have available to do case-related work, and are based on both policy and empirical considerations. We developed these values by determining how many days per year attorneys and support staff have to handle cases (attorney year and staff year), and how the workday divides between case-related and noncase-related time (attorney day and staff day).

First, we defined the attorney year and staff year standard. Starting with 260 days (52 weeks x 5 days per week), we deducted vacation days, sick days, holidays, and continuing legal education days, which gave us an attorney year standard of 212 days and a staff year standard of 216 days. The standard workday for attorneys and staff is set at 8 hours per day, with the time divided into case-related and non-case-related blocks. This distinction makes clear that not every minute of the day can be devoted to handling cases. Although attorney and staff time available for case-related work will vary daily, the typical day will include the number of hours in the workday minus time spent on basic noncase-related events, including administrative tasks, community outreach, training, and travel time. We assume that attorneys in rural districts, for example, spend 6.5 hours per day on case-related events and 1.5 hours per day on non-case-related work, and that staff in these districts spend 7 hours per day on case-related work and 1 hour on non-case-related events. Thus, an attorney has 82,680 minutes (212 days x 6.5 hours x 60 minutes) available each year to spend directly representing clients, and a staff member has 90,720 minutes (216 x 7 x 60) available each year for basic job responsibilities. The full development of the attorney and staff year values is outlined in Chapter 4. Implications: Implied Attorney and Staff Need We can calculate attorney and staff workload by district and division by multiplying each final case weight by the number of open cases of that case type. Once we calculate the attorney workload, we divide by the appropriate year value (the amount of time the average attorney has available to handle cases during the year). The result is what we term implied need: the number of attorneys needed to handle the total

33 *

workload (sum of the workload for 17 district court case types) is 6,471,710 minutes.10 The standard attorney year value for an attorney working in the rural districts is 82,680 minutes. Dividing the total workload by the attorney year value (6,471,710/82,680) produces an implied need for 78.3 attorneys to handle cases

yearly workload. We use a similar process to calculate the need for staff. The implied need for both attorneys and support staff can then be compared to the actual number of attorneys and staff.9 Let us look at attorneys in OPD’s rural districts to illustrate the process. The total

9

The terms ‘actual’ or ‘current’ number of

attorneys and staff refer to OPD staffing levels as of March 2004.

10

The complete set of calculations for attorney

and staff workload is displayed in Appendix 5.

Figure 11: Attorney and Staff Need Based on FY 2003 Caseloads and March 2004 Staffing DISTRICTS Rural

Suburban

Urban

Total

6,471,710

15,566,837

17,565,090

39,603,637

82,680 78.3

82,680 188.3

76,320 230.2

496.7

69.5

148.0

166.9

384.4

8.8

40.3

63.3

112.3

6,589,685

12,164,174

15,291,416

34,045,275

90,720 72.6

90,720 134.1

90,720 168.6

375.3

64.0

109.1

133.1

306.2

8.6

25.0

35.5

69.1

Attorneys

Total Workload (minutes) Attorney Year Value (minutes) Implied Need (FTE) Actual Number of Attorneys (FTE) Difference

Staff

Total Workload (minutes) Staff Year Value (minutes) Implied Need (FTE) Actual Number of Staff (FTE) Difference

DIVISIONS Appellate

Capital

CINA

Collateral

Mental Health

Total

2,575,687 101,760

432,536 101,760

2,514,408 101,760

1,826,996 101,760

851,063 101,760

8,200,690

Implied Need (FTE)

25.3

4.3

24.7

18.0

8.4

80.6

Actual Number of Attorneys (FTE)

22.9

4.0

19.5

15.5

5.5

67.4

2.4

0.3

5.2

2.5

2.9

13.2

997,737 84,240

47,706 84,240

646,602 84,240

586,657 84,240

808,443 84,240

3,087,145

Implied Need (FTE)

11.8

0.6

7.7

7.0

9.6

36.6

Actual Number of Staff (FTE)

10.5

1.0

7.5

7.0

10.8

36.8

1.3

-0.4

0.2

0.0

-1.2

-0.2

Attorneys

Total Workload (minutes) Attorney Year Value (minutes)

Difference

Staff

Total Workload (minutes) Staff Year Value (minutes)

Difference

Note: Actual number of attorneys or staff refers to OPD staffing levels as of March 2004.

* 34

Maryland Attorney and Staff Workload Assessment, 2005

in these jurisdictions. As illustrated in Figure 11, the total need for attorneys in all the districts is 496.7, a difference of 112.3 attorneys above the March 2004 staffing levels. When the final case weights for district staff are applied to open cases and divided by the staff year value (90,720 minutes), the total need for staff in the districts is 375.3, a difference of 69.1 staff above current levels. The final weights for division attorneys show a need for 80.6 attorneys across the five statewide divisions, a difference of an additional 13.2 attorneys.

*

Calculating the implied attorney need for attorneys in the Mental Health Division as of March 2004 Implied need provides an estimate of the number of attorneys and staff needed to handle work in a particular jurisdiction or statewide division. In the example below, we calculated the implied attorney need for the Mental Health Division. We summed the attorney workload (FY 2003) for the three case types that comprise Mental Health to get total workload, which we then divided by the attorney year value to produce a recommendation for the number of attorneys for the Mental Health Division. This implied need can be compared to the actual number of attorneys in March 2004. The difference reflects the additional resources needed to ensure the efficient and effective handling of cases. We used a similar process to examine staffing levels.

Case Types

Involuntary Commitment Not Criminally Responsible Incompetent to Stand Trial

Open Cases

6,753 211 85

Case Weights

x x x

103 569 417

Total Workload

Workload

= = =

695,559 120,059 35,445 851,063

divided by

Attorney Year Value (minutes)

101,760

equals

Implied Need (FTE)

8.4

minus

Actual Number of Attorneys (FTE)

5.5

equals

Difference

2.9

Implications: Cases per Attorney A second way to understand the final case weights is to examine the impact the final weights have on the number of cases per attorney. Historically, the number of cases per attorney in Maryland has been well above the standards developed by the American Bar Association’s National Advisory Commission on Criminal Justice Standards and Goals. However, upward adjustments to the time study weights during the quality adjustment process mean that attorneys will have, on average, more time to spend on cases if staffed in accordance with the proposed standards. Figure 12 displays the recommended average annual caseload per OPD attorney based upon our final case weights. For example, an attorney who only handles non-violent felonies in urban jurisdictions should have an annual caseload of no more than 118 cases. As one can see, for most case types the differences in the average number of cases per attorney are relatively small across the three groups of jurisdictions. To put the workload standards adopted by OPD in context, we compared the recommended number of cases per attorney to three separate standards: (1) National Advisory Commission (NAC) on Criminal Justice Standards and Goals,

35 *

adopted by the ABA; (2) OPD Managing for Results, which set a cases-per-attorney target at 120% of the ABA standards; and (3) other state standards currently in place. Figure 13 presents a summary of the number of cases per OPD attorney derived from the time study11 and the final case weights, as well as the first two national standards. The ABA standards take a different form, so for the comparisons to be meaningful we have combined the seventeen Circuit and District Court case types into three categories: Felony, Misdemeanor, and Juvenile.12 11

The number of cases per attorney, for all seventeen case types, derived

from the time study results can be found in Chapter 4. 12

The Felony grouping includes: Violent Felonies, Non-Violent Felonies,

Violations of Probation Circuit, Modifications/Sentence Reviews Circuit, and Homicide (where applicable), but does not include Capital cases.

Figure 12: Recommended Annual Attorney Caseloads Based on Final Case Weights

Cases per Attorney in District Offices

Capital (Death Notice Not Filed) Capital (Death Notice Filed)

Rural

Suburban

3 1

3 1

3 1

Violent Felony Non-Violent Felony Homicide

57 100 12

52 79 12

50 118 15

Misdemeanor Jury Trial Demands/Appeals District Court Criminal District Court Traffic

351 556 826

463 564 856

320 657 925

Child Support Juvenile Juvenile Violation of Probation

706 244 2,381

485 215 2,756

491 164 2,544

Violations of Probation Circuit Modifications/Sentence Reviews Circuit Violations of Probation District

919 689 1,837

919 679 1,837

848 1,496 1,696

Modifications/Sentence Reviews District Preliminary Hearings District Drug Treatment Court

940 7,864 N/A

1,148 5,613 N/A

1,696 15,251 84

The Misdemeanor grouping includes: Misdemeanor Jury Trial Demands/ Appeals, District Court Criminal, Violations of Probation District, Modifications/Sentence Reviews District, Preliminary Hearings Districts, and Traffic (where applicable). The Juvenile grouping includes Juvenile and Juvenile Violation of Probation cases.

Figure 13: OPD Cases (FY 2003) per Attorney Compared to Recommended Caseloads, the ABA, and Managing for Results Standards FY 2003 Caseloads Rural

Urban

Suburban Urban

Final Recommended Caseloads Rural

Suburban Urban

Standards ABA

OPD Managing for Results

Felony Felony (including Homicide)

245 205

210 184

272 258

207 191

157 140

170 156

150 150

180 180

Misdemeanor Misdemeanor (including Traffic)

644 670

735 761

789 791

599 630

680 705

719 728

400 400

480 480

Juvenile

314

267

200

271

238

182

200

240

Note: OPD Managing for Results is 120% of the American Bar Association (ABA) standard.

* 36

Maryland Attorney and Staff Workload Assessment, 2005

As is clear from the figure, current caseloads for OPD attorneys (as measured by the time study) are well above the goals set by ABA and OPD Managing for Results. Our focus groups thoroughly reviewed current OPD practice and made recommendations to improve the quality of case processing. Based upon these recommendations, approved by the OPD Advisory Committee, we adjusted our case weights to lower the number of cases currently handled by each OPD attorney. This is true for each case type in each jurisdiction. For example, the number of felony cases per attorney in rural jurisdictions should decrease from 245 cases per attorney to 207. These reductions in caseload per attorney can be compared

*

Calculating the number of cases per attorney for juvenile cases in rural jurisdictions Cases per attorney represent the maximum annual number of cases an attorney can carry if that attorney handles only that type of case. The table below shows how we calculated the number of cases per attorney for juvenile cases in rural jurisdictions. Calculations are shown for both the time study results and the final case weights. We calculated cases per attorney by dividing the attorney year value by the case weight.

Attorney Year Value (minutes)

Time Study

Final

82,680

82,680

292

339

283

244

divided by

Case Weight (minutes) equals

Cases per Attorney

to existing national standards. Such a comparison shows that our quality adjustments bring the number of cases per OPD attorney closer to the ABA and the OPD Managing for Results standards. Finally, we can compare the number of cases per OPD attorney to the standards for the maximum number of cases per attorney in other jurisdictions. Appendix 6 shows standards for felony, misdemeanor, and juvenile cases in thirteen states and New York City. In jurisdictions with similar classifications of cases, the maximum number of felony cases ranges from 150 to 240, misdemeanors range from 300 to 598, and juvenile cases from 175 to 480.13 Clearly, our final recommended case weights for felony and juvenile cases in Maryland are consistent with standards from around the country. However, the case weights for misdemeanors leave OPD with attorney caseloads in excess of both national standards and standards from other jurisdictions.14

13

The way jurisdictions categorize different cases affects the calculation of the

number of cases per attorney. 14

Attorney caseloads for misdemeanors are higher in Maryland because the

category includes a large number of relatively minor traffic cases that are easily disposed of and require minimal attorney preparation.

37 *

15

Implications: Staff per Attorney Ratio A final way to understand the results of the quality adjustment process is to examine the staff per attorney ratio. The Maryland OPD recognizes that the combined work of staff and attorneys, the defense team, is necessary to handle cases. If we bring together our separate attorney and staff models we can generate a unified perspective on the resources needed to effectively and efficiently handle OPD caseloads. We can then compare the staff per attorney ratios directly to expectations regarding the appropriate levels for four specific staff job titles, as expressed by the OPD Administration.15 Unlike attorney caseloads, there are no national standards with which to compare staff per attorney ratios. However, the OPD Administration reviewed available local standards from other jurisdictions and referred to them during an internal planning exercise conducted to generate MD OPD ratios. The OPD ratios are: • 1 Investigator for every 10 attorneys • 1 Paralegal for every 10 attorneys • 1 Secretary for every 5 attorneys • 1 Social Worker for every 15 attorneys

In the case of secretaries and social workers in district offices, our study calls for more staff per attorney than originally established by OPD. It should not be surprising that our study calls for more social workers, as the agency has recently placed a greater emphasis on the role of social workers.17 For paralegals the results for the different sized jurisdictions are mixed. For example, the ratio of paralegals per attorney in the district offices ranges from 1 per 8.3 attorneys in urban jurisdictions, to 1 per 20.2 attorneys in the suburban jurisdictions. However, the average for paralegals (11.3) in all the districts is in line with OPD expectations. Finally, the ratios for investigators per attorney suggested by our study are lower than the OPD standard. Our ratios range from one investigator for every 12.2 attorneys to one per every 20.3 attorneys, with a districtwide average of one per 15 attorneys.

District Offices

Rural

Suburban

Urban

The following table compares staff per attorney ratios in the districts, calculated from the final recommended case weights, to the OPD ratios above.16 To ease interpretation, the table presents the ratios as the number of attorneys related to one staff person, based on the size of jurisdiction. For example, one staff person working as a paralegal in rural jurisdictions supports the work of 11.2 attorneys. This can be directly compared to the OPD ratio of one paralegal for every 10 attorneys. Overall, the number of staff per attorney in the districts is fairly consistent with OPD expectations.

Investigators Paralegal Secretarial

12.4 11.2 2.3

12.2 20.2 3.2

20.3 8.3 3.5

15.0 11.3 3.1

10 10 5

8.4 4.9

8.8 6.4

7.7 6.8

8.2 6.3

15 N/A

OPD did not develop staff per attorney ratios for

intake staff. Nonetheless, ratios for intake staff per attorney, calculated from the final recommended case weights, are presented. 16

We have reduced the 12 staff functional areas to

five specific job titles by combining functions that are associated with a particular job title. Intake and Interpreter Services have been combined for the job title Intake; Investigative Services for Investigators; Legal Research and In-Court Support for Paralegal; Records Management, Secretarial Services, Direct Attorney Support, Court/Mail Run, General Public Relations for Secretary; and Social Work for Social Worker. 17

Some of the differences between the ratios gen-

erated in this report and the OPD ratios may be a result of the way we have combined the various staff functions into specific job titles. For example, we generated the job title of Secretary by combining the functional areas of Records Management, Secretarial Services, Direct Attorney Support, Court/Mail Run, and General Public Relations.

Figure 14: Staff per Attorney Ratios (based upon final case weights)

Social Workers Intake

Average for Districts

MD OPD Standard

* 38

Maryland Attorney and Staff Workload Assessment, 2005

Historically, the OPD has based requests for additional staff on anecdotal evidence, or, more recently, on a set of ratios based solely on expert judgment. With our empirically calculated staffing ratios OPD has an improved managerial tool to assess staffing levels. The newly developed ratios are still based upon the

*

core staff positions, but they are now oriented around three jurisdictional types. As noted previously, we can also determine appropriate attorney and staff levels by comparing the adjusted attorney and staff weights to the number of open cases.

Calculating the Staff per Attorney Ratio for Investigators in Rural Districts The ratio of staff to attorney provides an additional way to look at the number of attorneys and staff OPD needs to handle cases effectively. In the example below, we calculated the staff per attorney ratio for investigators in the rural districts. To begin, we determined the number of staff performing investigative functions. Multiplying the case weight contribution of investigation, taken from the final case weights (see Appendix 18), by the number of open cases yields the workload of staff for investigative functions in rural jurisdictions. We sum the staff workload on the eight case types to give the total workload. We then divide total workload by the staff year value to produce the implied need for rural investigative staff. Dividing the number of attorneys in the rural jurisdiction (see Figure 11) by the number of investigative staff yields the number of staff per attorney. In this case, it is one staff for every 12.4 attorneys. The ratios for individual jurisdictions can be compared to both the district average and the OPD ratio. Final Case Weight for Investigative Function (minutes)

Felony Homicide Misd. Jury Trial Demands/Appeals District Court Traffic Child Support Juvenile Violations of Probation Modifications/Sentence Reviews

182.5 859.4 14.4 6.0 .3 2.0 1.2

Open Cases

x x x x x x x x

2,115 34 3,443 16,114 855 2,249 5,892 991

Workload

= = = = = = = =

31,693

385,988 29,220 49,524 96,684 214 4,498 7,070 573,197

divided by

Staff year value (minutes)

90,720

equals

Rural investigative staff (FTE) Rural attorneys (FTE)

6.3 78.3

divided by

Rural investigative staff (FTE)

6.3 12.4

Ratio of rural investigative staff to rural attorney Note: There are no investigative functions for Modifications/Sentence Reviews.

1 to 12.4

39 *

Conclusion Our final case weights suggest that current OPD caseload levels are a direct challenge to Maryland’s obligation to provide effective assistance of counsel to indigent defendants. Current attorney workload was measured through a time study. Shortcomings of current practice were identified through surveys, interviews, and focus groups. Time was added to specific events that define the character of

how different cases should be handled to allow for adequate attorney and staff time for effective representation. The result is a measurement of the need for additional attorneys and staff in the district and statewide offices. The increases in the numbers of attorneys and staff suggested by the final case weights will bring OPD resource levels closer to, but not in excess of, accepted national standards.

* 40

Maryland Attorney and Staff Workload Assessment, 2005

41 *

4 Time Study

W

e used a time study to measure the time OPD attorneys and staff spend handling cases. From the time study we developed case weights for different case types, a model that accounts for the fact that case types vary in complexity and require different amounts of time and attention. Relying solely on case counts, rather than case weights, to determine the demands placed on attorneys and staff ignores the varying levels of OPD resources needed to handle different types of cases effectively. The time study represents an accurate and valid picture of current practice–the time attorneys and staff actually spend handling cases. The steps involved in calculating and applying our weighted caseload methodology to this project were: 1. Selecting a set of locations to participate in the study. 2. Selecting the case types and events to be used in constructing the weights. 3. Recording the total amount of attorney and staff time spent on each of the selected events within each of the case types for a specified period in each participating jurisdiction. 4. Calculating the number of cases opened annually in each jurisdiction. 5. Calculating time study case weights by dividing the total amount of attorney and staff time spent (weighted to one year) on each of the selected case types by the corresponding number of open cases for each case type. 6. Assessing the validity of the time study case weights by comparing the implied attorney and staff levels to the number of OPD attorneys and staff currently in place.

Choosing Time Study Locations The OPD Advisory Committee decided that all attorneys and staff in the districts and statewide divisions would participate in the time study. By using the entire population of attorneys and staff across the State of Maryland, rather than sampling, we improved the reliability of the study. And by collecting data from all attorneys and staff we also ensured that all OPD offices across the state had a better understanding of the methodology and procedures we used. Beginning on March 1, 2004 we collected time study data over a period of several weeks from attorneys and staff in each of the twelve districts and five statewide divisions. Staff in both the district and statewide divisions participated for two weeks, attorneys in the districts for four weeks, and attorneys in the statewide divisions for six weeks.18 The OPD Advisory Committee clustered the district locations into three groupings: rural (Districts 2, 3, 4, 11, and 12), suburban (Districts 5, 6, 7, 8, 9, and 10), and urban (District 1). The Committee believed that case complexity, volumes of work, and local practices varied enough between groupings that the distinction was useful.19

18

Jurisdictions with ProLaw training

during the time study had an additional week added to ensure that attorneys and staff participated for the same duration as other jurisdictions across the state. For example, District 8 started its data collection one week later (3/8) and extended its collection to 3/21 for staff and to 4/4 for attorneys. 19

This assumption will be scrutinized in

examining the time study results.

* 42

Maryland Attorney and Staff Workload Assessment, 2005

Selecting Case Types and Events

Figure 15:

Selecting the number of case types and case events to use in our weighted caseload study involved a tradeoff between having enough information to ensure the accuracy of the workload standards and minimizing the data collection burden on participating attorneys and staff. The more case types and events that we include, the larger our data samples need to be to guarantee statistical accuracy. In addition, determining the appropriate types of cases to weight is particularly important, because the workload standards must eventually be attached to readily available case data to determine workload. That is, the weights must correspond to the specificity of open cases available from every jurisdiction throughout the state. For this reason, the OPD Advisory Committee determined that time study data should be collected on 17 case types for the attorneys in the districts, 9 types for staff in the districts, and 12 case types for attorneys and 5 types for staff in the statewide divisions. Figure 15 shows the case types we used to develop the workload standards. In addition, we have also displayed the functional areas and non-case-related activities.

Case Types, Functional Areas and Non-Case-Related Activities District Attorneys Case Types Capital (Death Notice Not Filed) Capital (Death Notice Filed) Violent Felony Non-Violent Felony Homicide Misd. Jury Trial Demands/Appeals District Court Criminal District Court Traffic Child Support Juvenile Juvenile Violation of Probation Violations of Probation Circuit Modifications/Sentence Reviews Circuit Violations of Probation District Modifications/Sentence Reviews District Preliminary Hearings District Drug Treatment Court

Functional Areas Bail Reviews/Detention Hearings General Preparation Client Contact Investigation and Discovery Activities Investigator Duties Legal Research Pretrial Hearings Negotiating Plea Alternatives Trial/Contested Adjudication Sentencing/Disposition Social Work Functions and Mitigation Post Trial/Post Adjudication Violations of Probation Modifications/Sentence Reviews Staff Duties Waiting Time Court Waiting Time Jail

Non-Case-Related Activities Travel Committee/Staff Meetings Duty Work Conferences Community Outreach Administrative Tasks Personnel Attorney Supervision Gathering and Maintaining Statistics

43 *

District Staff

Division Attorneys

Division Staff

Felony Homicide

Criminal Appeals CINA - TPR Appeals Court of Appeals

Appellate Capital CINA

Capital Defense CINA Termination of Parental Rights

Collateral Review Mental Health

Misd. Jury Trial Demands/Appeals District Court Criminal/Traffic Child Support Juvenile Drug Treatment Court Violations of Probation Modifications/Sentence Reviews

Post Conviction Parole Revocations Application for Leave to Appeal Involuntary Commitment Not Criminally Responsible Incompetent to Stand Trial

Intake Records Management Secretarial Services Investigative Services Legal Research Social Work Interpreter Services Direct Attorney Support In-Court Support Court/Mail Run Docket Preparation and Management General Public Relations

Training Travel Committee/Staff Meetings Administrative Services Administrative Tasks Personnel Staff Supervisor

General Preparation Client Contact

Intake Records Management

Investigation and Discovery Activities Initial Hearings Negotiated Disposition

Secretarial Services Investigative Services Legal Research

Preparing for Contested Disposition Contested Disposition Social Work Functions

Social Work Interpreter Services Direct Attorney Support

Preparing for Post Disposition Matters Post Disposition Hearings Staff Duties

In-Court Support Court/Mail Run Docket Preparation and Management

Waiting Time Court/Hearings Waiting Time Institution

General Public Relations

Travel

Training

Committee/Staff Meetings Duty Work Conferences

Travel Committee/Staff Meetings Administrative Services

Community Outreach Administrative Tasks Policy Matters

Administrative Tasks Personnel Staff Supervisor

Personnel Attorney Supervision General Legal Research

* 44

Maryland Attorney and Staff Workload Assessment, 2005

The smallest unit of analysis in a weighted caseload study is not the case, but the functional area, or event – the set of activities that comprise a case. The NCSC team thus classified all potential attorney and staff activities associated with processing case types into a set of event categories (e.g., client contact for attorneys). The event categories must be sufficiently tailored to the work attorneys and staff perform on particular cases to allow for precision, but at the same time remain general enough for ease of data collection. In identifying the functional areas, we began by looking at the performance guidelines developed by OPD and National Legal Aid and Defender Association. We obtained additional information on attorney and staff tasks and responsibilities during a set of site visits to District 1 (Baltimore City), District 4 (Calvert, Charles, and St. Mary’s Counties), and District 8 (Baltimore County). Members of the OPD Advisory Committee and members of the focus groups ultimately determined the events used in the study. A more detailed description of the case types, functional areas, and non-case-related activities for attorneys and staff in the districts and statewide divisions can be found in Appendices 1-3. 20

To assist in tracking time, NCSC staff

held separate “train the trainer” sessions for attorneys in the districts, attorneys in the statewide divisions, and staff in February 2004. We showed trainers how to use the two manual tally sheets and how to enter data on the online data entry screens. We also used a series of scenarios thought to be representative of the type of data entry combinations to facilitate the learning. Finally, we developed a set of training manuals for each of the training sessions.

Recording Time During the time study data collection period we asked attorneys and staff in both the districts and statewide divisions to keep account of their entire workday, and to include both case-related and non-case-related activities. Attorneys and staff used a Daily Time Log, a Multiple Event Tally Sheet, and an online data entry screen to track and record their time.20

Annual Open Cases The Maryland Office of the Public Defender Fiscal Year 2003 Annual Report provided NCSC staff a working number of annual open cases. These figures show the total number of new cases opened 21 by the Office of the Public Defender from July 1, 2002 to June 30, 2003, and include cases paneled for conflict, that is, cases transferred to outside private counsel due to conflict. Additionally, OPD provided raw counts of the number of cases paneled. Since OPD staff performs work on paneled cases (e.g., intake functions), we included these cases in the total number of open cases for staff. However, to arrive at an accurate count of the cases actually handled by OPD attorneys, we subtracted these cases from the number of cases opened as indicated by the FY 2003 annual report. Each district provided the number of cases paneled by each district office, and, with a few exceptions, we placed them in circuit, district, and juvenile case categories. To remove these cases from the total number of cases opened, NCSC staff had to proportionately distribute the number of cases paneled for each district across the sub-case types within each category (circuit, district, and juvenile), and then subtract them from the count of cases opened.22 The number of open cases for each case type can be found in Figure 16.

21

The case counts we received from OPD included a breakdown of the

Circuit cases opened in the categories of Violent Felony, Non-Violent Felony, and Homicide to facilitate the construction of more precise case weights for the workload assessment model. 22

In addition, the Advisory Committee believed case filing counts in the

area of Modifications and Sentence Reviews in District 1(Baltimore City) to be incomplete due to data entry problems. Based upon a recommendation by the Counsel for Planning and Policy, we generated estimated counts for these cases by using the number of Modifications/ Sentence Reviews for District 11 relative to the total number of District or Circuit cases filed in that district. We then applied this rate to the number of cases filed in District 1 to derive an estimate of the actual number of Modifications/Sentence Reviews that occurred.

45 *

Calculating Time Study Case Weights To estimate the average amount of time attorneys and support staff require to handle a given type of case, we divided the total time spent working on that case type by the total number of open cases of that case type. If our sample of cases is large enough and our study period is representative of the year, our results should provide a valid estimate of the time needed to process each type of case. Our study satisfied both conditions. During the data collection period approximately 90 percent of all OPD attorneys and staff recorded over 5 million case-related minutes of work. The high level of participation and the large amount of data collected, cutting across all of the case types and functions, provided NCSC staff a valid and reliable snapshot from which to develop its case weights. The complete set of time study case weights are displayed in Figure 16. A comparison of the time study results across the jurisdictions reveals some consistency in current practice. For example, the weight for District Court Traffic is 102 minutes in rural jurisdictions, 93 in suburban, and 95 in urban. Overall, the weights in the rural jurisdictions are most similar to those in the suburban jurisdictions. However, the differences that do exist in the attorney and staff weights across the three jurisdictions support the Advisory Committee’s decision to develop separate case weights for rural, suburban, and urban districts. In addition to tracking time by case type, attorneys and staff tracked their time by different functional areas (See Appendices 7-9). Several key findings emerged from this data.

a) Attorneys and staff perform a variety of functions in handling cases. For example, in handling violent felony cases attorneys in the districts spend time on general preparation, client contact, investigation and discovery activities, legal research, pretrial hearings, and negotiating plea alternatives, to name but a few functions. b) The time that attorneys and staff spend on different functions varies by case type. For example, staff investigative services are typically devoted to cases of greater complexity (e.g., felonies and homicides). c) Attorneys in the districts and statewide divisions perform several functions that the agency views as staff duties. These include investigative duties, social work functions, mitigation, and other staff duties (e.g., administrative staff functions). d) Attorneys in the districts and statewide divisions spend a significant amount of time waiting in court and waiting to meet with clients at jails or other institutions. e) The time that attorneys in the statewide divisions spend on case-related matters varies greatly. For example, attorneys in the Appellate division spend approximately 82 percent of their time on case-related activities and only 18 percent of their time on noncase-related activities. Contrastingly, attorneys in the Capital division spend approximately 57 percent of their time on case-related activities and 43 percent on non-caserelated activities. Capital Division attorneys spend more time on general legal research and criminal justice administration and oversight activities than attorneys in the other statewide divisions. This distinction between time spent on case-related and non-case-related matters will be very important in constructing, later in this chapter, a typical workday for division attorneys.

* 46

Maryland Attorney and Staff Workload Assessment, 2005

Figure 16: Rural

Calculating Time Study Results Total Minutes

Number of Open Cases

Case Weight (minutes)

DISTRICT Attorneys Capital Defense Violent Felony Non-Violent Felony Homicide Misd. Jury Trial Demands/Appeals District Court Criminal District Court Traffic Child Support Juvenile Juvenile Violation of Probation Violations of Probation Circuit Modifications/Sentence Reviews Circuit Violations of Probation District Modifications/Sentence Reviews District Preliminary Hearings District Drug Treatment Court

19,143 861,884 1,061,151 414,219 728,562 1,592,255 418,436 107,445 593,578 8,645 92,625 58,425 46,228 25,822 20,103 0

2 637 1,339 32 3,208 11,227 4,092 808 1,967 249 3,411 626 1,868 293 1,912 0

9,571 1,353 792 12,944 227 142 102 133 302 35 27 93 25 88 11 0

Total

6,048,520

31,671

—

Felony Homicide Misd. Jury Trial Demands/Appeals District Court Criminal/Serious Traffic Child Support Juvenile Drug Treatment Court Violations of Probations Modifications/Sentence Reviews

1,315,530 71,706 595,639 2,658,810 97,470 330,603 0 394,764 100,091

2,115 34 3,443 16,114 855 2,249 0 5,892 991

622 2,109 173 165 114 147 0 67 101

Total

5,564,613

31,693

—

Staff

Statewide

DIVISION Attorneys Criminal Appeals CINA - TPR Appeals Court of Appeals Capital Defense CINA Termination of Parental Rights Post Conviction Parole Revocations Application for Leave to Appeal Involuntary Commitment Not Criminally Responsible Incompetent to Stand Trial

2,173,415 215,481 158,562 432,533 1,697,085 202,513 1,324,010 303,331 22,066 422,398 79,580 36,002

635 78 90 26 3,799 402 1,005 965 21 6,735 211 85

3,423 2,763 1,762 16,636 447 504 1,317 314 1,051 63 377 424

Total

7,066,976

14,052

—

997,737 47,706 646,602 586,657 808,443

803 26 4,201 1,991 7,049

1,243 1,835 154 295 115

3,087,144

14,070

—

Staff Appellate Capital CINA Collateral Review Mental Health Total

47 *

Suburban Total Minutes

Number of Open Cases

Urban Case Weight (minutes)

Total Minutes

Number of Open Cases

Case Weight (minutes)

206,188 2,756,583 2,192,571 807,036 760,413 3,238,559 734,643 76,448 1,577,947 15,060 197,123 123,785 97,269 24,715 67,159 0

19 2,083 2,638 147 4,792 22,360 7,875 449 4,432 533 7,178 1,016 4,257 344 4,559 0

10,852 1,323 831 5,490 159 145 93 170 356 28 27 122 23 72 15 0

16,549 1,639,765 2,816,273 306,218 1,361,715 4,357,704 348,448 63,973 2,188,911 9,633 245,683 78,018 141,116 17,316 45,800 409,945

5 1,806 5,966 151 5,797 40,137 3,669 390 4,959 602 7,031 1,543 3,373 571 9,152 394

3,310 908 472 2,028 235 109 95 164 441 16 35 51 42 30 5 1,041

12,875,499

62,682

—

14,047,068

85,546

—

2,797,547 383,470 456,092 4,383,114 74,358 709,956 0 693,840 128,128

4,969 155 5,012 30,867 486 4,797 0 12,390 1,408

563 2,474 91 142 153 148 0 56 91

3,099,624 34,510 578,556 4,436,930 25,023 1,262,860 472,406 857,160 313,725

8,756 170 5,844 43,930 439 5,420 394 11,905 6,675

354 203 99 101 57 233 1,199 72 47

9,626,505

60,084

—

11,080,794

83,533

—

* 48

Maryland Attorney and Staff Workload Assessment, 2005

Determining Attorney and Staff Need

23

During the time study we did not capture

non-case-related time by any particular case type. However, the recorded non-case-related time can be attributed to a particular division. In order to allocate the time to a particular case type within a division, we used the proportion of open cases. For example, in CINA 416,337 minutes were non-case-related. CINA cases make up 90.4 percent of cases and TPR the other 9.6 percent. We used these proportions to associate the non-case-related time to particular case types (376,497 minutes to CINA and 39,840 minutes to TPR) and then added this time to the case-related time.

Multiplying the number of open cases by the case weights gives us an estimate of workload. To determine attorney and staff need, we must compare workload to the total amount of time OPD attorneys and staff have available to complete their work. The Attorney and Staff Year Value. The attorney and staff year value is an estimate of the average amount of time an attorney or OPD staff has available to handle his or her workload during the year. Calculating available attorney and support staff time is a two-stage process that entails calculating the number of days per year available to attorneys and staff to handle cases, and then determining how the business hours of each day are divided between case-related and noncase-related work. Multiplying the number of available workdays by the number of available case-related hours in a day gives us the “attorney (staff) year value.” To establish the “average” attorney or staff year, we must accurately describe the various factors that reduce the days available for an attorney or staff to handle cases. Thus, in calculating the attorney and staff year we must subtract weekends, holidays, and time taken by illness, vacation, and continuing legal education. With this in mind, the Advisory Committee determined that attorneys in the districts and statewide divisions have an average of 212 days available each year to handle cases, and staff in the districts and statewide divisions have 216 days.

The Attorney and Staff Day. We separated the attorney and staff day into two parts: the amount of time devoted to (a) case-related matters and (b) non-case-related matters. An attorney or staff may work a nine-hour day, but only part of the day is devoted to case-related work. Although the time available to attorneys and staff to handle cases will vary daily, our average day must take into account the hours in the workday spent on basic non-case-related events, including: • Administrative tasks • Travel time • Committee and staff meetings • Other non-case-related activities not covered by the above categories (see Figure 15 earlier in this chapter for a complete listing) The Advisory Committee established a 9-hour workday as our starting point. We deducted one hour per day for lunch and breaks, leaving an 8hour workday. Initially we assumed 6.5 hours per day were devoted to specified case-related work for both attorneys and staff, leaving 1.5 hours per day for other non-case-related activities. During the time study we collected time spent by attorneys in the districts, and staff in the districts and statewide divisions, on non-case-related activities and our initial assumption of approximately 1.5 hours devoted to non-case-related activities was confirmed. For attorneys in the divisions, the data revealed considerable variation among divisions in the amount of time spent on case-related activities. Rather than construct multiple case-related days, the Advisory Committee decided the attorney day for division attorneys would be 8 hours (including both case and noncase-related time).23 An overview of the calculations that gave us the staff year and staff day is provided in Figure 17.

49 *

Figure 17: Calculating the Attorney and Staff Year and Day

Attorney and Staff Year

Attorney

Staff

365

365

- 104 - 11.5 -6 - 15 - 10 -3 - 3.5

- 104 - 11.5 -6 - 15 - 10 - 2.5 n/a

Total Days per Year Subtract Non-Working Days:

212

Total Case-Related: Total Non-Case-Related: Total Working Hours per Day

24

The difference can be attributed to the fact that

attorneys in the rural districts work slightly longer than the agency designated 8-hour workday.

216

Attorney

Total Hours per Day Subtract Lunch and Breaks:

=

Staff

9

9

-

1

-

1

=

8

=

8

6.5 + 1.5

6.5 + 1.5

=

=

8

8

▲

Attorney and Staff Day

=

▲

Total Working Days Per Year

▲

Weekends Holidays Personal Days Vacation Sick CLE Conferences

▲

Multiplying the attorney (or staff) year and day together gives us the amount of time available per year to handle cases. Attorneys in the districts have 82,680 minutes of case-related time per attorney per year (212 days x 6.5 hours per day x 60 minutes per hour). Attorneys in the divisions have 101,760 minutes of case-related time per year (212 days x 8 hours per day x 60 minutes per hour), while staff in the districts and divisions have 84,240 minutes per year (216 days x 6.5 hours per day x 60 minutes per hour) of case-related time. This model is designed to reflect current practice. If accurate, the time study case weights should give us an estimate of the number of attorneys and staff used to handle a given volume of work. By comparing the results of our model with the actual work accomplished in the previous year we can assess the validity of the results of the time study. That is, could the volume of work actually conducted in FY 2003, as determined by the time study results, have been handled with the number of OPD attorneys and staff at work in Maryland? To assess how well the model fits in practice, we divided the total workload (time study weights multiplied by the number of open cases) by our attorney and staff year values. For example, attorneys in rural jurisdictions reported 6,048,520 weighted minutes. Dividing the total amount of work by the attorney year value (6,048,520 ÷ 82,680) yields an implied need of 73.2 attorneys. In comparison, rural jurisdictions actually have 69.5 attorneys.24 The full set of calculations for district and division attorneys and staff is illustrated on the following page in Figure 18. On the whole, it seems clear that the time study workload standards pass the plausibility test—the existing attorneys and staff could have handled the workload generated by the cases opened in FY 2003.

* 50

Maryland Attorney and Staff Workload Assessment, 2005

Figure 18: Implied Need for OPD Attorneys and Staff as of March 2004 Based on FY 2003 cases, prior to the full implementation of the Caseload Initiative

DISTRICTS Rural

Suburban

Urban

Total

Attorneys Total Workload (minutes) Attorney Year (minutes)

6,048,520 82,680

12,875,499 82,680

14,047,068 82,680

32,971,087 82,680

73.2 69.5

155.7 148.0

169.9 166.9

398.8 384.4

5,564,613 84,240

9,626,505 84,240

11,080,794 84,240

26,271,912 84,240

66.1 64.0

114.3 109.1

131.5 133.1

311.9 306.2

Implied Need (FTE) Actual Number of Attorneys (FTE)

Staff Total Workload Staff Year Implied Need Actual Number of Staff

DIVISIONS Appellate

Capital

CINA

Collateral

Mental Health

Total

2,547,459 101,760

432,533 101,760

1,899,599 101,760

1,649,406 101,760

537,980 101,760

7,066,977 101,760

25.0 22.9

4.3 4.0

18.7 19.5

16.2 15.5

5.3 5.5

69.4 67.4

997,737 84,240

47,706 84,240

646,602 84,240

586,657 84,240

808,443 84,240

3,087,145 84,240

11.8 10.5

0.6 1.0

7.7 7.5

7.0 7.0

9.6 10.8

36.6 36.8

Attorneys Total Workload Attorney Year Implied Need Actual Number of Attorneys

Staff Total Workload Staff Year Implied Need Actual Number of Staff

Note: Actual number of attorneys or staff refers to OPD staffing levels as of March 2004.

51 *

5 Time Sufficiency Survey & Site Visits

F

ollowing the completion of the time study, we gathered qualitative data on the work performed by OPD attorneys and support staff. This portion of the study involved two separate phases, time sufficiency surveys and site visits, designed to document resource barriers for attorneys and staff in offices throughout the state. Our focus was to identify current issues that affect the quality of OPD representation. In the first phase we administered a webbased, time sufficiency survey to attorneys and staff statewide, which measured the time it takes to perform the essential case-related and non-case-related tasks identified in the time study. The second phase involved a set of site visits to select district offices, representing rural, suburban, and urban jurisdictions. The goal of our site visits was to place information generated from the time sufficiency survey into an operational context that would complement the survey data. Additionally, the visits provided NCSC staff a unique opportunity to gather specific examples of challenges facing attorneys and staff. The themes we identified out of these two phases provide an important framework for assessing the reasonableness of current practice as identified by the time study. Additionally, what we learned from the survey and the site visits helped guide our discussions with focus groups of OPD attorneys and staff about making qualitative adjustments. This process is discussed in detail in Chapter 6.

Time Sufficiency Survey and Site Visits

Time Sufficiency Survey During the month of June 2004, the NCSC team administered a set of web-based surveys to all attorneys and staff in district offices and statewide divisions to assess the adequacy of time available to them to perform a core set of essential job duties. The focus groups and the Advisory Committee used the survey results to evaluate the time study results and to ensure that they provide sufficient time for quality performance. We divided the web-based survey into two basic sections: (1) basic respondent information and (2) an assessment of whether there is adequate time within current resource levels to do a reasonable job on essential tasks. In the first section we asked attorneys and staff to indicate the district or statewide division they worked in, the case types they typically work on, whether they were a manager, and their job title (e.g., Assistant Public Defender). In the second section we asked them to evaluate whether they have enough time to do a reasonable job in performing essential OPD tasks, tasks fundamental to protecting the constitutional rights of the accused. NCSC staff drew this list of tasks, organized around the functional areas shown in Figure 7, from a number of sources, including the American Bar Association’s Criminal Justice Standards for Defense Functions and a series of initial site visits to District 1 (Baltimore City), District 4 (Calvert, Charles, and St. Mary’s Counties), and District 8 (Baltimore County) in Fall 2003. The attorney and staff focus groups and the Advisory Committee vetted and finalized our initial draft of tasks.25

25

A complete set of the tasks can be found in

Appendices 10-13.

* 52

Maryland Attorney and Staff Workload Assessment, 2005

Specifically, for each of the separate tasks, we asked attorneys and staff to evaluate the statement, “I generally have enough time to…” complete this task in a reasonable and satisfactory way, on a scale ranging from “Almost Never” to “Almost Always.” For tasks or functions that respondents did not regularly perform, or that did not apply to their position, we provided the response “Not my job.” An example of the survey layout for attorneys is provided below in Figure 19. Over 54 percent of attorneys and 45 percent of support staff in OPD offices statewide completed the surveys. Each of the individual tasks represent essential activities associated with high quality representation. NCSC staff compiled the responses and analyzed the results separately for

Figure 19: Time Sufficiency Survey I generally have enough time to… Prepare for and participate in bail review hearings or detention hearings

1 Almost Never

2 Very Seldom

3 Seldom

4 Very Frequently

5 Frequently

6 Almost Always

N/A Not my Job

attorneys and staff in district offices (rural, suburban, and urban jurisdictions) and attorneys and staff in the five statewide divisions. For each task, we generated an average response score.26 Because providing effective assistance of counsel requires that attorneys have sufficient time to conduct these tasks, we highlighted averages less than 4.5 to identify those that attorneys and staff feel they “very seldom,” “seldom,” or, at best, “frequently” have enough time to complete in a reasonable and satisfactory way. Tasks scoring below 4.5 represent areas where attorneys and staff perceive that they have insufficient time to provide representation in accord with best practices. A summary of the results, by functional area, is provided in Figure 20.27 For attorneys in rural, suburban, and urban jurisdictions, almost all averages for the essential tasks fell below the 4.5 threshold. Functions with the lowest scores (e.g., Bail Review/ Detention Hearings, Investigation and Discovery) are areas attorneys identified as most problematic with existing resource constraints. Moreover, non-case-related activities also appear compromised by a lack of time. The non-case-related activities include time to supervise, evaluate, and mentor staff, and time to participate in public outreach and education. Figure 20 summarizes the numerous time sufficiency concerns in OPD offices. Each of the broad functional areas is comprised of a number of specific attorney and staff tasks. A complete set of results, illustrating scores for individual tasks, is displayed in Appendices 10-13.

26

We treated “Not my job” responses as missing data and excluded these

responses from the analysis. 27

We generated averages for the functional areas by summing all of the

scores for all the tasks in each functional area. Next, we divided the sum by a sum of the number of responses to all of the tasks.

53 *

Figure 20: Average Attorney and Staff Responses From Time Sufficiency Survey by Functional Area

Attorneys District

Statewide Divisions Appellate

Capital Defense

CINA

Collateral Review

Mental Health

Rural

Suburban

Urban

Bail Reviews/Detention Hearings

3.2

2.8

3.2

-

-

-

-

-

General Preparation

4.4

4.2

4.3

4.3

5.9

4.1

3.9

3.1

Client Contact

4.3

4.1

4.0

3.9

5.8

4.4

4.3

4.0

Investigation and Discovery

3.8

3.5

3.2

3.3

5.9

2.9

3.3

3.2

Legal Research

4.2

3.9

3.9

-

-

-

-

-

Pretrial Hearings

4.0

3.9

3.7

-

-

-

-

-

Exploring Disposition Without Trial

4.7

4.6

4.5

-

-

-

-

-

Trial/Contested Adjudication

4.5

4.3

4.2

-

-

-

-

-

Sentencing/Disposition

3.8

3.7

3.4

-

-

-

-

-

Post Trial Activities

3.7

3.6

3.3

-

-

-

-

-

Non-Case-Related Activities

3.0

2.9

2.8

2.7

4.8

3.2

2.7

3.5

Initial Hearing

-

-

-

-

6.0

4.1

4.0

2.7

Negotiated Disposition

-

-

-

-

6.0

4.1

4.0

4.8

Contested Disposition

-

-

-

3.5

6.0

4.0

4.8

4.2

Post Disposition Hearings

-

-

-

3.8

5.9

4.1

3.6

3.8

Staff District

Statewide Divisions

Rural

Suburban

Urban

Appellate

Capital Defense

CINA

Collateral Review

Mental Health

Intake

4.3

3.9

4.5

3.8

3.0

5.1

5.0

5.1

Records Management

3.8

3.9

4.5

2.7

3.0

3.7

1.0

4.5

Secretarial Services

4.3

4.0

4.5

3.6

3.0

4.5

5.2

4.6

Investigative Services

3.5

4.5

4.7

-

-

5.0

2.8

4.1

Legal Research

2.3

3.1

3.5

-

-

3.4

4.0

4.2

Social Work

2.9

4.8

3.6

-

-

6.0

-

4.7

Interpreter Services

3.2

3.6

2.5

2.0

-

2.0

5.0

-

General Public Relations/Interface

4.4

3.8

4.3

3.0

3.0

3.1

5.1

4.3

Direct Attorney Support

4.0

4.1

4.4

3.3

3.0

3.5

4.9

5.2

In-Court Support

4.0

4.3

4.6

-

-

4.0

5.0

2.5

Court Run/Mail Run

3.9

3.9

4.4

2.0

3.0

4.5

4.8

4.0

Docket Preparation/Management

4.0

4.2

4.3

3.8

-

3.4

6.0

5.0

Administrative Services/Tasks

4.1

4.0

4.2

3.8

3.0

2.8

3.0

3.8

■ Less than 4.5 The response rate for staff in each of the statewide divisions is below 5; thus, there were not enough respondents to make these results meaningful.

* 54

Maryland Attorney and Staff Workload Assessment, 2005

Site Visits

Challenges for Attorneys

The NCSC project team made a series of site visits to representative OPD District Offices in Maryland. We conducted face-to-face interviews with attorneys and support staff in three districts across the state. Along with the OPD Advisory Committee, we selected three offices to represent various district sizes in Maryland. We selected District 3 (Kent County and Queen Anne’s County) to represent rural districts, District 5 (Prince George’s County) for suburban districts, and District 1 (Baltimore City) as the urban location. We interviewed attorneys and support staff (including social workers and investigators) in each location. The project team met with individual attorneys and staff in the rural locations and in the urban and suburban districts we interviewed groups of attorneys and staff based upon the type of work they performed and the cases they handled. During the site visits, our team sought a second, more detailed, level of qualitative data on tasks that are not currently being performed adequately. The interviews also offered us the opportunity to question attorneys and staff on the unique approaches that have developed to manage workload in their jurisdictions, as well as the practices that could be modified to more efficiently and effectively conduct OPD’s work. Finally, the site visits also provided the occasion to discuss the impact of increasing caseloads on the ability of attorneys and staff to provide effective assistance of counsel in criminal cases. A review of the findings from the site visits are provided in the following sections.

Due to increasing caseloads, attorneys have had to develop a triage approach to managing caseloads. Thus, occasionally they assess cases for plea offers rather than explore the full range of defense strategies available to the client. Attorneys also noted that they have limited time to appear at bail review hearings or arraignments, and, as a result, they have little opportunity to resolve cases at these crucial early stages of a case. Attorneys reported that limited client contact time made it very difficult to keep track of client whereabouts. Large caseloads mean that cases take longer to resolve, which also makes maintaining up-to-date information on the location of clients more problematic. Attorneys felt the need for additional time to visit clients in custody. Additional resources for jail visits would make attorneys better prepared, provide them with a better opportunity to identify witnesses early in the case, and potentially reach appropriate resolutions earlier. The situation attorneys face is further complicated by the lack of adequate staff support. Due to limited number of support staff resources (such as intake staff), substantial delays are occurring in opening cases. As a result, clients are occasionally appearing for court dates after applying for representation with the public defender, but the attorney has yet to enter an appearance. Attorneys are therefore losing credibility with clients and the courts and it

55 *

is taking longer to establish trust and confidence. Attorneys have to spend additional time rehabilitating the attorney-client relationship after these sorts of early miscues. A further consequence of the lack of intake staff is that attorneys have to directly gather information on the incident and potential witnesses from the client, usually at the first court appearance. When attorneys appear at arraignments and bail review hearings, there are insufficient staff resources to adequately assist them in handling arraignment calendars. Without this support, attorneys are unable to make the most of this opportunity to advise clients and evaluate potential plea offers. Subsequent hearings, such as motions or pretrial conferences, must therefore be scheduled. Attorneys reported that their work is further compromised by spending a substantial amount of time performing staff duties (e.g., clerical, investigative, and social work functions). This perception was confirmed by the data we collected during the time study (see Appendix 7).

Challenges for Support Staff In general, staff felt that tasks associated with time-sensitive activities, such as intake and records management, are the most critical, and are given priority over other duties. But in focusing on these tasks other tasks are often postponed or neglected. This sort of prioritization of duties also results in staff spending less time on tasks associated with sustaining basic improvement initiatives, such as training, or monitoring performance. For example, staff reported that they are not being trained to use essential technologies designed to increase efficiency and productivity.28 Furthermore, staff in numerous locations reported they often must assist their co-workers with intake and records management in order to assure that these most critical functions are completed. Even with this shifting of resources to intake functions staff noted that, due to the press of the current caseloads, they are unable to obtain much information beyond the minimal identification data on each client. When intake staff cannot obtain the client’s statement on the incident and potential witnesses, the ability of attorneys to identify witnesses and develop a theory of the case at the earliest opportunity is compromised. This reallocation of staff to assist with intake and records management tasks leads to less time devoted to other duties, such as providing attorneys with secretarial support. As a consequence, staff reported that court dates are occasionally being missed due to an overload of cases, that subpoenas are not getting prepared and issued in a timely manner, and that motions for reconsideration are not getting filed within the required time frames.

28

Since that time, the OPD has designated a

trainer to work exclusively on IT training.

* 56

29

Maryland Attorney and Staff Workload Assessment, 2005

Often the timing of court dates simply does not

allow for social worker involvement, even though it would be beneficial to the clients.

In the area of records management, inadequate staff support hinders creating new records in the system. This delay results in frequent requests for continuances, as attorneys lack the opportunity to review cases prior to court appearances. A secondary impact of this delay is an increase in the number of phone calls from clients seeking to determine what has transpired in the interim. Further compounding the situation for support staff is the fact that supervisors are frequently performing the work of line staff to ensure that work priorities are completed. Allocating resources in this manner inhibits the ability of supervisors to manage and mentor staff, which carries the potential for serious, long-term impact on the quality of OPD services. In Baltimore City, the only district with social workers on staff at the time of this study, the social workers indicated that current caseloads are capped at 45 cases per staff member in order to ensure that quality services are provided and clients are able to receive the time and attention they need. Due to the large number of cases, and the limited number of social worker resources available, this cap results in a 2 to 3 month wait for clients to see social workers. Given this lengthy waiting period, attorneys noted that they will often not refer cases to client services because of the delay it may cause in resolving pending charges.29 Of further concern, social workers noted the inadequate time they currently have to identify alternative sentencing recommendations and placement options for clients. Finally, social workers articulated a need for more program staff to maintain and update a database of existing social service programs.

Investigative staff reported they receive fewer referrals from attorneys in juvenile and district court cases because attorneys know that existing resources currently focus on only the most serious cases. Further, investigators noted they lack sufficient time to locate and interview witnesses. Finally, investigative staff felt the need for more formalized training on investigative techniques that would allow them better use of the limited time they currently have. Overall, the time sufficiency surveys and the interviews with attorneys and staff provided the NCSC and OPD Administration with valuable information to assess the attorney and staff time study case weights, and thus, current practice. We used the qualitative information outlined in this chapter to inform the next phase of our project, the Quality Adjustment Phase.

57 *

6 Determining the Final Case Weights Introduction The time study tells us “what is,” not “what ought to be.” As caseloads rise, attorneys are forced to spend less time on each case to stay current with incoming work. In some instances, revised procedures or new technologies mean attorneys need less time for effective representation. In most cases, however, the result is simply more cases assigned to already overextended attorneys and staff. As workload rises, attorneys can and do work faster, but when faster becomes too fast, effective assistance of counsel is unduly compromised. The challenge for OPD is to identify those areas most important to quality representation and to determine the amount of time attorneys and staff need to represent clients effectively. In the final phase of our study, we assembled focus groups of subject matter experts to assess current OPD practices, and to revise the time study results to improve the quality of representation. The focus groups consisted of three separate groups of attorneys from the district offices (Circuit Attorneys, District Attorneys, and Juvenile Attorneys), a group of attorneys from the statewide divisions (one representative from each division), and a group of support staff.

It is often difficult for focus groups to interpret and evaluate the time per case depicted by time study case weights. The NCSC team believes that the best way to make sense of the results of the time study is to look “inside” the case weights. We therefore structured the evaluation process to get the focus groups to look at the events that occur over the life of a case, and, where needed, to make specific adjustments for specific reasons, rather than simply adjusting the bottom line.

Inside the Numbers During the time study, attorneys and staff recorded their time by case type and specific caserelated event or function (see Appendices 13). For example, attorneys in the districts distinguished 15 discrete events. To simplify the quality review process, NCSC staff condensed the 15 separate case events into the following 7 event categories: Pretrial Activities/Preparation, Client Contact, Legal Research, Trial Activities, Sentencing/Disposition, Post Trial Actions, and Other30 (we similarly aggregated the case events for the division attorney case weights). We then combined information on time per event with information on the frequency with which these events occur, on average, over the life of a case.31 This calculation gave us the average amount of time an attorney spends on a given event when it occurs. The case-related events that make up each case type are presented below in chronological order over the life of a case.

30

Pretrial Activities/Preparation included the

following: Bail Reviews/Detention Hearings, General Preparation, Investigation & Discovery Activities, Pretrial Hearings and Negotiating Plea Alternatives. Client Contact, Legal Research, Trial Activities, Sentencing/Disposition and Post Trial Actions remained categories unto themselves. The Other category consisted of: Investigator Duties, Social Work Functions and Mitigation, Staff Duties, and Waiting Time at court and jail. 31

Not all the information useful in developing the

time standards was readily available in Maryland. NCSC deemed trial rate information available from the Maryland Administrative Office of the Courts incomplete. Therefore, we constructed frequency information in conjunction with OPD Administration and the focus groups to utilize in the presentation of the data.

* 58

Maryland Attorney and Staff Workload Assessment, 2005

The example below illustrates the composition of the time study results for non-violent felony cases handled by attorneys in rural districts (Figure 21). It shows the amount of time spent on each event, as well as, on average, the frequency with which each event occurs over the life of the case. Overall, the time study indicated that attorneys in rural district offices spend an average of 792 minutes per non-violent felony case. However, if we look “inside” the case weight, these 792 minutes are an aggregate of multiple, specific event times and frequencies that, in combination, give us an overall average time per case.

Figure 21: “Inside the Numbers” Non-Violent Felony – Rural Event

Pretrial Activities/Preparation Client Contact Legal Research Trial Sentencing/Disposition Post Trial Other* Time Study Case Weight

Event Time (in Minutes)

x

376 180 72 701 28 7 121

x x x x x x x

Event Frequency (% of cases) =

100% 100% 70% 5% 95% 50% 100%

= = = = = = =

Contribution to Time Study Case Weight

376 180 50 35 27 4 121 792

*Includes Investigator Duties, Social Work Functions, Staff Duties, and Waiting Time (court and jail)

As one can see, attorneys spend an average of 376 minutes on preparation time and 180 minutes communicating with the client (these events happen in every case opened). Legal research occurs a little less frequently (70% of cases), but attorneys spend an average of 72 minutes on such research when it is necessary. Because legal research does not occur in every case, its contribution to the overall case weight is not the full 72 minutes, but rather 50 minutes (multiply the time of each event by the frequency of its occurrence, 72 minutes x .7 = 50 minutes). The average trial length for non-violent felony cases is 701 minutes (approximately 11.5 hours). But because trials only occur in 5% of cases opened, their overall contribution to the case weight is only 35 minutes (701 minutes x .05). The next chronological event, sentencing, which occurs in 95% of cases, requires an average of 28 minutes of an attorney’s time. Post trial matters are the final activity in the life of a case. Data from the time study show attorneys spent an average of 7 minutes on post trial matters, which is estimated to occur in 50% of the total cases opened. Our “Other” category captures time spent waiting in court, and at jails or other institutions, and the time attorneys spend on support staff duties. In non-violent felony cases these other duties take an average of 121 minutes of attorney time for every case opened. If we sum the individual contributions from each event category we get our overall case weight of 792 minutes.32 Appendices 14-21 show the event-based results for all case types for attorneys and staff. 32

[(100% * 376 = 376) + (100% * 180 = 180) + (70% * 72 = 50) + (5% *

701 = 35) + (95% * 28 = 27) + (50% * 7 = 4) + (100% * 121 = 121)].

59 *

Adjusting the Case Weights

Attorneys in District Offices

The five focus groups met separately in October 2004 to review the time study case weights and other time study results in the manner described above. At each meeting, we asked participants to agree on a final set of case weights ––one for each case type, for both attorneys and support staff––to recommend to the Advisory Committee. The groups examined current practices as measured by the time study (Phase 2); considered the concerns identified in our time sufficiency survey (Phase 3); discussed the concerns raised during the NCSC site visits, especially existing resource constraints and changing business practices, such as new court procedures, new legislation, new technology, and internal managerial improvements (Phase 4); and called on their own personal experience to make recommendations on the final attorney and staff workload standards. In a three-step process to evaluate the time study baseline results, facilitated by the NCSC team and staff from OPD Administration Office, we asked each focus group to: 1. Review the relevant time study case weights by primary event (or function) and identify areas of concern in relation to current practice. 2. Recommend adjustments to specific event times within particular case types where they deemed current practice insufficient to ensure effective representation. 3. Provide a rationale and justification to support any increase in attorney or staff time.

Process. Three separate focus groups of attorneys (Circuit, Juvenile, and District Court) from across the state, representing rural, suburban, and urban district offices, reviewed the time study case weights for attorneys in district offices.33 The attorneys selected to participate in the groups were chosen for their subject matter expertise and are well versed in how cases are currently handled in their region. They reviewed every time study case weight for separate qualitative considerations.34 To illustrate, the focus group of juvenile attorneys made the following adjustments to the juvenile standard in urban districts (Figure 22).

Figure 22: Adjustments to the Urban Juvenile Time Study Case Weight

Event (Adjustments in Bold)

Pretrial Activities/ Preparation

Event Time (in Minutes)

217

x

Event Frequency (% of cases)

=

Contribution to Final Case Weight

x

100%

=

x

100%

=

74

33

x

50%

=

17

67

x

25%

=

17

Client Contact

74

Legal Research Trial

85

217 85

Sentencing/ Disposition

11

30

x

95%

=

10

29

Post Trial

60 100

x

30%

=

18

30

Other*

89

x

100%

=

89

73

73

Final Case Weight

441 466

*Includes Investigative Duties, Social Work Functions, Staff Duties, and Waiting Time (court and jail)

33

The group of Circuit Attorneys reviewed the information on the following case types: Violent Felony, Non-Violent Felony, Homicide,

Misdemeanor Jury Trial Demands/Appeals, Child Support, Drug Treatment Court and all Circuit Modifications/Sentence Reviews and Violations of Probation. The Juvenile Attorneys focus group reviewed the Juvenile, Juvenile Modifications/Sentence Reviews, and Juvenile VOP case types. The District Court Attorneys reviewed District Criminal, District Traffic, Preliminary Hearings and all District Modifications/ Sentence Reviews and Violations of Probation case types. 34

The structured review process that focused on the 6 key events outlined above was completed for 10 of the case types identified in the time

study. In the remaining six case types (Juvenile VOP’s, Circuit VOP’s, Circuit Modifications/Sentence Reviews, District VOP’s, District Modifications/Sentence Reviews, and Preliminary Hearings), we employed a simpler process. During the time study, it was necessary to condense all activity in these cases into a single event category. Therefore, the adjustment process involved reviewing the full complement of time per case; it was not possible to differentiate the discrete events of these cases.

* 60

Maryland Attorney and Staff Workload Assessment, 2005

The juvenile attorney focus group determined that the time captured in the time study was inadequate to effective assistance of counsel. A recent American Bar Association (ABA)35 review of access to counsel and the quality of representation in delinquency proceedings in Maryland confirmed the group’s concerns. The focus group noted that most OPD attorneys do not have sufficient time to meet and interview clients prior to adjudication hearings. To address this issue, the group added 11 minutes of time per case to the client contact category to promote better communication with clients and family members. Figure 23: Final Case Weights for Attorneys in District Offices Based on FY 2003 Caseload Rural

Suburban

Urban

Capital (Death Notice Not Filed)

25,740

25,740

25,740

Capital (Death Notice Filed)

87,840

87,840

87,840

1,438

1,579

1,528

Violent Felony Non-Violent Felony Homicide

827

1,043

645

7,087

7,087

5,087

Misd. Jury Trial Demands/Appeals

236

178

238

District Court Criminal

149

147

116

District Court Traffic

100

97

83

Next, the focus group reviewed and adjusted time in the area of Sentencing/Disposition. The ABA report indicated that public defenders in Maryland routinely adopt the recommendations of the Department of Juvenile Services in these cases without conducting independent investigations or exploring alternative treatment plans. To remedy this, the group increased the time devoted to Sentencing/ Disposition from 11 minutes to 30 minutes. The additional time would allow attorneys to more adequately prepare for sentencing, coordinate necessary witnesses, and arrange for expert testimony. The final area of adjustment involved time spent on post trial activities. The focus group increased the time in this area by 40 minutes to allow attorneys the opportunity to monitor the conditions of placement, as well as provisions of court-ordered services.36 Incorporating these recommended changes increased the case weight for juvenile cases in urban districts from 441 minutes to 466 minutes per case.

35

An Assessment of Access to Counsel and Quality of Representation in

Delinquency Proceedings, American Bar Association and Mid-Atlantic

Child Support

117

171

156

Juvenile

339

385

466

Juvenile Violation of Probation

35

30

30

36

Violations of Probation Circuit

90

90

90

attorneys in district offices, indicated in Figure 6.2, concerned the “Other”

Juvenile Defender Center, October 2003. The final qualitative adjustment made to the Juvenile case weight for

120

122

51

component of the case weight. This modification was not made by the focus

Violations of Probation District

45

45

45

groups based upon a perceived need, but was part of an overall adjustment

Modifications/Sentence Reviews District

88

72

45

Preliminary Hearings District

11

15

5

N/A

N/A

912

Modifications/Sentence Reviews Circuit

Drug Treatment Court

made by the OPD Advisory Committee during its final review of the quality adjusted case weights. The Committee made this adjustment to reduce the amount of time attorneys are currently spending performing staff duties. The reduction is based on the expectation that attorneys should focus their attention on the legal and representational aspects of their cases; they should not be spending their time performing clerical, investigative, or social work functions. In general, OPD is better served by having these tasks performed by support staff. A full discussion of the rationale for this adjustment is presented in the last section of this chapter.

61 *

Attorneys in Statewide Divisions

The focus groups followed a similar process in reviewing the time study results for all remaining case types. Overall, the focus groups of attorneys in district offices made adjustments to 15 of the 17 time study case weights. The final case weights for all case types involving attorneys in district offices are shown in Figure 23. The specific justifications for the adjustments for each case type are summarized in Appendix 22. Implications. When we look at our final cases weights in relation to the number of cases opened in FY 2003, and compared with the March 2004 staffing levels, we see that district offices statewide need an additional 112 attorneys. However, due to the on-going efforts of the Governor and State Legislature, 84 additional attorney positions have been earmarked for the OPD. The distribution of attorneys based on the final case weights is presented below.

Process. This focus group was composed of one representative from each of the five statewide divisions (Appellate, Capital Defense, CINA, Collateral Review, and Mental Health). These attorneys evaluated time study data by specific event categories that differed slightly from those employed by the attorneys in the district offices. The event categories for the divisions included: General Preparation, Negotiated Disposition Actions, Client Contact, Preparing for Contested Disposition, Contested Disposition Activities, Preparing for Post Disposition, Post Disposition Hearings, and Other Actions. Appendix 2 shows more specifically what is included in each category. The group made adjustments to the time study case weights for all statewide divisions except Capital Defense. Most of the changes involved minor adjustments to the time per case indicated by the time study. However, it is worth noting that not all of the changes resulted in

Figure 24: Implied Need for Attorneys in District Offices Based on FY 2003 Cases Opened and Staffing as of March 2004

District Category

Rural

Need Based on Final Case Weights

Actual

Implied Need

78

-

70

=

9

Suburban Urban

188 230

-

148 167

= =

40 63

Total

497

Note: Totals may not sum due to rounding.

384

112

* 62

Maryland Attorney and Staff Workload Assessment, 2005

direct representation) for every death penalty case opened within the state. This number, when coupled with the number of cases opened annually, indicates the Capital Defense Division needs 4.3 full-time attorneys to handle its work, rather than its current 4.0 full-time attorneys. Based on the experience of the practitioners in this area, the current time per case was deemed appropriate and no adjustments were made. The specific justifications for each adjustment made to the case weights for attorneys in Statewide Divisions are provided in Appendix 23. The final case weights for the Divisions are shown in the following figure. Implications. The final case weights, seen in relation to the total number of cases opened in FY 2003, suggest that the statewide divisions need an additional 13.2 attorneys. The distribution of attorneys based on the application of the final case weights is depicted in the figure below.

increases to the time study case weights. In 2 of the 9 case weights (Appellate-Criminal Appeals and Mental Health-Incompetent to Stand Trial) the final case weight was lower than the time study case weight. The group did not change the case weight for Capital Defense. Attorneys in the Capital Defense Division coordinate, on a statewide basis, legal defense services in capital murder cases. These attorneys consult with the Public Defender and the District Public Defenders on appointments of counsel, arrange for experts and investigators, support and advise appointed counsel, gather data on sentencing in death penalty cases, and provide educational resources to staff and panel attorneys. Additionally, attorneys in this division are frequently called upon to provide direct representation to litigants in capital defense cases. The time study showed attorneys in this division spend, on average, more than 277 hours providing support services (exclusive of

Figure 25:

Figure 26:

Final Case Weights for Attorneys in Statewide Divisions

Implied Need for Attorneys in Statewide Divisions Based on FY 2003 Cases Opened and Staffing as of March 2004 Minutes

■

Appellate Criminal Appeals CINA - TPR Appeals Court of Appeals

■

Capital Defense

■

CINA CINA Termination of Parental Rights

■

■

Collateral Post Conviction Parole Revocations Application for Leave to Appeal Mental Health Involuntary Commitment Not Criminally Responsible Incompetent to Stand Trial

Need Based on Final Case Weights

3,404 2,795 5,301 16,636

588 698

1,481 328 1,051

103 569 417

Actual

Implied Need

Appellate Capital Defense CINA

25.3 4.3 24.7

-

22.9 4.0 19.5

= = =

2.4 0.3 5.2

Collateral Mental Health

18.0 8.4

-

15.5 5.5

= =

2.5 2.9

Total

80.6

Note: Totals may not sum due to rounding.

67.4

13.2

63 *

Support Staff Process. We convened a separate focus group of support staff to review the staff time study results for both the district offices and statewide divisions. Although the general process was similar to what we used with the attorneys, the group evaluated the time study data by specific staff function, rather than case event, in the following 9 categories: Intake, Records Management, Secretarial Services, Investigative Services, Legal Research, Social Work, Interpreter Services, Direct Attorney Support, InCourt Support, Court/Mail Run, Docket Preparation/Management, and General Public Relations. These categories are more completely defined in Appendix 3. The staff group adjusted case weights primarily in the areas of Intake, Records Management, Investigation, and Social Work functions in district offices. The need for additional staff in these areas is underlined by the time study finding that attorneys statewide are spending the greatest amount of time performing these support staff functions. Figure 27 illustrates the nature of the adjustments made to the juvenile standard in urban districts. The staff focus group increased the time allotted to Records Management to accommodate the introduction of the ProLaw case management system, deployed statewide in 2004. The ProLaw system is data intensive and requires significant staff time to meet data entry demands. Consistent, high-quality data will yield a large quantity of relevant management information previously unavailable to OPD.

The focus group increased time in the area of Investigative Services from 10 to 20 minutes. Given the concerns of the ABA review of delinquency representation in Maryland, the focus group felt additional time for more thorough investigations of all the facts and circumstances surrounding these types of cases was merited. The group also adjusted the area of Legal Research. The time study results showed that no time is currently given to this area in juvenile cases because of a lack of resources. To remedy this deficiency, the group added 10 minutes per case (in the 15% of the cases where it is needed). The group’s final adjustment was to increase the time available for Social Work because of the long waiting lists for the few social workers currently available. All of these adjustments increased the case weight for support staff handling juvenile cases in urban districts a total of 178 minutes, from 233 minutes to 411 minutes per case. Figure 27: Adjustments to the Urban Juvenile Support Staff Case Weight

Event (Adjustments in Bold)

Intake Records Management

Event Time (in Minutes)

78

Contribution to Final Case Weight

100%

=

100%

=

3

x

100%

=

67

20

x

10%

=

1

2

0

10

x

15%

=

122

600

x

33%

=

40

198

Investigative Services

10

Interpreter Services

=

x

67

Social Work

Event Frequency (% of cases)

x

3

Secretarial Services Legal Research

x

20

78

2

1

x

10%

=