July 13, 2014

CJA and §1988 Fee Requests

Having elected to continue his blog -- which comes as a relief, but that's a different post -- U.S. District Judge Richard G. Kopf explains his approach to CJA vouchers. For my colleagues who submit these things, it is an interesting look behind the curtain. For those of us who are not CJA attorneys, it is still an interesting look at how one judge conducts his review of fee requests.

CJA attorneys are private practitioners who are members of a panel of defense attorneys who are assigned criminal defendants who cannot afford their own counsel. The attorneys are paid at an hourly rate of $126. Requests for payment are normally submitted to the district judge who assigned the case. When requests for payment exceed certain limits, the fee application has to be at both the district and the circuit levels.

I have never been a CJA attorney, although on one occasion a judge asked me to handle a case for post-trial motions, sentencing, and appeal, with the understanding that I would be paid at CJA rates. He was very apologetic. I was maybe four years out of law school and flattered to have been asked. So my one experience was favorable. 

I have heard stories about certain judges who reflexively cut requests, or demand more detailed affidavits to explain why so much time was spent doing X or Y. In my one CJA case, the Hon. Sonia Sotomayor, then sitting on the Second Circuit Court of Appeals, asked me for the same sort of explanation. It didn't bother me at the time, it might a little bit now. I say that because I had performed a substantial amount of work, all of which was readily visible, on a RICO conviction that followed a six-week trial and complicated sentencing motion practice trying to stave off a life sentence for my 20 year-old client. My papers were more than sufficiently detailed to warrant a quick approval.

As somebody who has to submit time sheets and declarations when I represent a prevailing a prevailing party in a civil rights case, the process can be more than a little aggravating. We submit a detailed break down of our time, and follow that with a declaration that is one-part braggadocio and one-part begging to justify our worth. The defendants then challenge it, claiming we spent far too much time on various tasks and bill at too high a rate. The Courts, which surely must hate this this time consuming motion practice as much as we do, has to then examine our reports in detail, and pass judgment on our work, our rates, and our value. Built into this practice is the inevitable comparison between rates given to various local attorneys who perform the same work, which is not the sort of public pronouncement that judges I know are thrilled to make or that my colleagues are happy to hear. Personally, I have no complaints about the outcomes, but it doesn't change my antipathy towards the practice. 

Just as it is with attorneys who submit CJA vouchers, we find ourselves starting out on the defensive, having the burden of proof that what we are seeking is what we are worth. This is particularly grating for CJA attorneys I know, who are forced to bill at a rate that is a small fraction of what they ordinarily charge.

So I am relieved, but not surprised, to read that Judge Kopf ordinarily assumes that the hours/work performed claims by counsel are accurate. Yes, I know that federal prosecutors are not challenging the CJA attorneys' claims, but it is refreshing to hear a judge acknowledge your worth, assume the truth of your submission, and, on occasion, defer to the attorney's judgment.

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