A. Appellate Offices
Included in this section are standards relating to the following topics:
- Separate units, offices, and agencies
- Appropriate, adequate facilities
- Efficient management structure
- Outreach to court, trial attorneys, and legal community
1. Separate Units, Offices, and Agencies
Commentary. Specialization, scheduling, case overloads, and the need to review the performance of trial counsel are a major part of postconviction review. Appeals often last for years and might involve litigation in state and federal courts, along with hearings in the trial courts. It is extremely difficult to match appellate research demands with the equally daunting demands of trial practices. Statewide and major countywide defender offices have developed their own appellate divisions and specialized appellate defender offices in over 40 states; as a result, trial counsel rarely conduct the appeal.
The only standard that discusses the relationship of the appellate function to the trial function is the NLADA Guidelines for Legal Defense Systems in the United States. These guidelines stress the importance of separating the two functions. In contrast, other standards found in Compendium Volume I, "Standards on the Administration of Defense Services," imply that the trial attorney will ordinarily be responsible for handling any appeal, should that be necessary.
NLADA Guidelines for Legal Defense Systems in the United States
Guideline 4.3 Relationship of Appellate and Trial Functions; Task Allocation
The appellate and postconviction functions should be independent of the trial function in order to accomplish free and unrestricted review of trial court proceedings.
Where the appellate office is part of a defender system which includes both trials and appeals, the appellate function should be as organizationally independent of the trial function as is feasible.
(a) Counsel on appeal should be different from trial counsel and capable of exercising independent review of the competence and performance of trial counsel.
(b) An appellate defender should not have responsibility for any trial work while in an appellate capacity and should remain in appellate work for a substantial period of time in order to provide continuous representation to a client throughout the appellate process.
(c) While the appellate function should be separate from the trial function, under certain circumstances the trial attorney should be permitted to handle the appeal provided that there is an independent review of the record by appellate personnel.
Where the appellate defender office is separate from the trial office, it is essential to ensure the following coordination:
(a) Appellate counsel should contact and fully discuss the appeal with trial counsel; and
(b) The trial defender office should have the capacity to process interlocutory and emergency appeals.
Where paraprofessionals and law students are utilized in the appellate process, the defender assigned to a client should establish a personal relationship with the client through personal interviews and continued contact.
A copy of all pleadings affecting the merits of the case filed for a client by the defender should be automatically forwarded to the client. Because the client is not present at most appellate proceedings, the client should be informed of the occurrence of all substantial hearings, rulings and decisions affecting the case.
The responsibility for handling a case on appeal should be borne by the attorney. The attorney should supervise all supporting staff who work on a case.
The following services and facilities should be available to appellate defender offices:
(a) Adequate resources for the hiring of expert witnesses and investigative services;
(b) Administrative personnel to maintain docket control cards, open files, accumulate all court records before the case is assigned to a defender, and set up initial appointments with and explain the appellate process to clients;
(c) Word processing systems and equipment; and
(d) An adequate library and brief-bank with access to a complete resource library.
(1) Adequate personnel should be available to operate the library and maintain and index the brief-bank.
(2) Individual staff attorneys should be provided with a functional working library for their own offices.
(3) All slip sheet opinions released by the jurisdiction's appellate courts should be obtained by the office upon release, indexed and immediately distributed to the appellate attorneys.
2. Appropriate, Adequate Facilities
Commentary. Effective appellate advocacy requires more than effective advocates. Specifically, appellate work requires working conditions conducive to long hours of reading records and research materials, extensive library and on-line research, and significant amounts of writing and editing. The two standards here are directed at ensuring the adequacy of the facilities and the library used by the attorneys.
NLADA Standards and Evaluation Design for Appellate Defender Offices
Standard II. Criteria for Assessing the Efficacy of the Legal Representation
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G. Facilities
1. Office Space
a. Area for staff. Generally 150 sq. ft. should be allocated for each full-time or equivalent staff member.
b. Privacy. Each attorney should be provided an individual, private, fully walled office in which to work; investigators, social workers, and paralegal personnel should have available private office space in which they can interview persons.
c.
i. The appellate defender office should generally not be located in a government office building or in the same building as the prosecutor, but should be located in an area which is accessible to public transportation, is amenable to client visits, and is convenient to the primary appellate court.
ii. The appellate defender should be located in a building which has easy access to the public and which ensures the security of office personnel.
iii. The appellate defender office should have the appearance of a professional law office, and not a government agency. The appellate defender and all staff should work towards minimizing the institutional appearance of the office and maximizing its professional appearance.
iv. Adequate space should be allocated in the appellate defender's office for library, waiting rooms, conference space, and lounge areas for staff.
v. The appellate defender office should have adequate heating, air conditioning, and lighting to perform its required duties.
2. Library
a. Where such materials are published, each attorney in the appellate defender office shall be provided:
i. One complete set of state statutes and court rules;
ii. One set of statutes annotated, covering those statutes and rules governing criminal and appellate law and procedures;
iii. Those sections of the state digest and/or state legal encyclopedia covering criminal law;
iv. A directory of all attorneys, judges, and prosecutors in the jurisdiction; and
v. A dictionary.
b. At a minimum, each appellate defender shall have an in-house library with at least the following material:
i. A complete set of:
1) United States Supreme Court decisions;
2) All published state appellate court decisions;
3) Federal Reporter;
4) State Statutes Annotated;
5) State Digest;
6) State legal encyclopedia;
7) Law reviews published in the state;
8) Either Am. Jur. or C.J.S.;
9) Pattern criminal jury instructions for the state;
10) Federal Digest;
11) State Shepards Citations;
12) Current ABA Standards for Criminal Justice; and
13) Current prison, parole, and probation regulations for that jurisdiction.
ii. One set of all published state appellate court decisions since 1960 for every ten attorneys.
iii. Current Criminal Law Reporter.
iv. Legal Dictionary
v. One standard treatise on:
1) criminal substantive law;
2) criminal procedure; and
3) criminal evidence.
c. Priority should be given to expanding the law library beyond this minimum collection.
d. Each appellate defender shall identify those complete law libraries convenient to its offices which contain regional and state reporters, Federal Supplement, all major law reviews, and such standard references as A.L.R. and Words and Phrases. The appellate defender shall endeavor to work out procedures for the staff to use such materials during working and non-working hours and, where appropriate, to withdraw materials from the library.
3. Other Research Aids
a. Briefbank
i. Each appellate defender office shall have an index of briefs such as will allow other staff members and other researchers to have access to briefs completed by the office.
ii. Each office shall have a procedure for requiring the cataloging of briefs done by the office.
iii. Each office shall have a procedure for requiring the cataloging of motions/research done by the office.
b. Automated Research Devices
i. Where funds are available, each appellate defender should determine the feasibility of using automated research equipment to do legal research.
ii. The automated equipment should be put in a location that is accessible to all staff members, but disrupts the research of other staff members as little as possible.
iii. The office should develop procedures to ensure the utilization of the automated equipment by staff members.
iv. The office should monitor the cost efficiency of all automated equipment within the office to determine whether it is sufficient for the office's purpose.
c. Unless it would seriously disrupt the operation of defender office, the appellate defender should make its library, brief bank, and research tools available to other public defenders and members of the private bar.
New Mexico Public Defender Department, Performance Guidelines for Appellate Criminal Defense Representation
Guideline 2.7 Research resources
(a) The appellate division shall maintain an in-house law library and provide counsel with such computerized research tools as are necessary to fulfill the division's mission of providing quality appellate representation.
(b) Appellate counsel shall know how to utilize these resources, and should be given any necessary training in this regard.
3. Efficient Management Structure
Commentary. An effective appellate defender office must be run like any other office, with operating procedures to guide staff personnel decisions. The office must also have a management information system that can help measure workload and control how that workload is dealt with. Since these standards were written, litigation, legislation, and the courts have shown significantly increased concern over appellate delay and excessive caseloads. In addition, dramatic changes have occurred in office management use of computers. Appropriate availability and use of computers is implicit in the latter standards.
NLADA Standards and Evaluation Design for Appellate Defender Offices
Standard II. Criteria for Assuring the Efficiency of the Legal Representation
A. Regular Office Procedures
1. Every appellate defender office shall have written office procedures covering the internal operation of the office.
2. These written procedures shall be provided to all staff members.
3. Staff members shall be familiar with the procedures which are set forth in the written procedures.
4. The office shall adhere to the written procedures.
5. The written procedures of the office shall include hours of operation, compensation policy, promotion procedures, vacation, sick leave, staff meetings and interaction, forms for legal documents, hiring and discharge proceedings and procedures, discipline procedures, grievances procedures, and all similar matters relating to the operation of the office.
6. Each appellate defender office shall have standard forms for the perfection and pursuit of appeals and for such other proceedings as are routinely taken in postconviction or appellate cases. Such form books shall be available to all attorney and secretarial personnel within the office and shall be utilized, in the most appropriate manner possible, to increase the efficiency and productivity of the office.
B. Management Information Systems
1. The appellate defender shall determine what types of information need to be gathered for the day-to-day operation of the office, for the long term needs of the agency, and for case tracking.
2. The office shall determine whether the information being gathered meets the needs of the office.
3. The office shall review the manner in which the data are collected to determine whether it is efficient or whether the efficiency can be improved through an enhanced management system or through automation.
4. The office shall adopt a weighted caseload system for all cases entering the office to ensure a fair distribution of cases and accurate information on caseloads.
4. Outreach to Court, Trial Attorneys, and Legal Community
Commentary. This standard combines the general duty of the defender office for outreach (see Compendium Volume I, "Standards on the Administration of Defense Services") with the requirement to work together with the other members of the appellate court workgroup.
NLADA Standards and Evaluation Design for Appellate Defender Offices
Standard II. Criteria for Assuring the Efficiency of the Legal Representation
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H. Feedback
1. With Appellate Courts
a. The appellate defender and his or her staff shall establish regular lines of communication with judges on the appellate court and with appellate court staff to determine whether the office is providing representation in a manner acceptable and appropriate to the court.
b. The appellate defender shall establish procedures for the disposition of administrative matters which arise on an emergency basis and to avoid confrontation with court staff.
2. The appellate defender should establish a cordial, and professional, relationship with the appellate court prosecutor so that mutual problems can be solved administratively or with a concerted effort.
3. The appellate defender should have on-going contact with the criminal defense bar in the jurisdiction.
4. The appellate defender should have contact with the private bar generally within the jurisdiction.
5. The appellate defender should reach out to the client community, and particularly to the community of institutionalized persons, to provide assistance, information.
New Mexico Public Defender Department, Performance Guidelines for Appellate Criminal Defense Representation
Guideline 2.5 Contact with courts and prosecutors
(a) The Appellate Defender and his/her staff shall establish regular lines of communication with appellate court judges and staff to facilitate the provision of quality representation.
(b) The Appellate Defender should establish a cordial and professional relationship with the Director of the Criminal Appeals Division of the Attorney General's office so that mutual problems can be solved administratively or with a concerted effort.
(c) Appellate counsel should act in a professional and dignified manner in all dealings with judges and prosecutors.