June 17th, 2009 | 3 Comments
Lately, I’ve been hearing a lot about state, county, and municipal budget problems. Both prosecutors and public defenders tell me about hiring freezes, forced unpaid vacations, and pay reductions. Judges seem hesitant to sign off on any order that will cost the court much money. One county’s superior court apparently has a new policy of authorizing no more than $200.00 in initial compensation for contract defense investigators, billable at a rate of $20.00 per hour. I’m sure that’s affected the quality of the investigators on the contract list considerably. That same court has a brilliant new policy involving orders.
To give you some background, when filing many types of motions, defense lawyers will attach a proposed order with everything filled out except for the lines where the judge needs to sign and date. For things like motions to transport a defendant from prison to court, motions for a deposition, or motions to appoint, the judge will be irritated if you don’t attach an order. He’s going to grant it without much thought, maybe even without reading it, so you should have prepared something for him to quickly date and sign. If you didn’t, his judicial assistant will probably have to do your work for you.
After you submit the motion and the judge has granted it, you need to get a copy of the signed order. The signature may be a stamp, or it may be a real signature. Regardless, your proposed order is useless until it’s signed. I doubt you could even get one of those $200.00 investigators to start work unless he knows for sure that he’s been authorized to get paid. Before you receive the order, you probably won’t know when it was granted or even if it was granted.
Most courts mail a copy of the granted order to defense counsel. The clerk of the court I mentioned above, however, decided that postage and copies are too expensive. Now, they want defense attorneys to give them an extra copy of the order along with a self-addressed, stamped envelope. My complaints with that policy fall into two distinct categories: problems with the reasoning behind it, and problems with the way it’s actually carried out.
I can understand why the clerk wants to save money, but why do things like this always have to be at the expense of the defendant? Whenever someone has to bear some cost, everyone immediately looks to the defense. Losing money because prosecutors are filing more cases than the system can take? Assess a big prosecution fee against the defendant! Prosecutors overwhelming the system by forcing too many cases to trial due to absurd plea bargaining guidelines? Discount appointed defense counsel’s trial bill! I’m tired of seeing defendants pay for government excess. The county attorney’s office is right down the hall from the clerk, so the policy doesn’t have any effect on them. The cost of the new policy in criminal matters thus falls only on defendants. Not surprising, but irritating and wrong nonetheless.
Additionally, I doubt much thought went into the actual savings of the policy. Here’s what I bet was the extent of the reasoning: “making defense lawyers pay for something means we don’t pay for something, which means we save money.” I seriously doubt anyone actually bothered factoring in the cost of training people on the new policy, the cost of notifying attorneys of the new policy, and the effect of temporarily having at least one extra, duplicate piece of paper for almost every motion in almost every file. Courts have trouble keeping track of paperwork as it is. Also, I doubt they considered the cost of having judges sign or use their signature stamps twice as much, which leads me to one of the primary practical failings of the policy.
Every time I file a motion and order, I give the court an extra copy of the order. However, I almost always receive a copy of the signed order instead of the incomplete copy I provided with a stamp or signature added to it. What do they do with the copy I gave them? I think some of the clerks feel that having the judge sign or stamp two copies results in two originals, so they just throw away the one I give them and make a copy after the judge signs it. With that in mind, how on earth do they justify the policy? Honestly, I feel like the court still likes it for no other reason than the fact it’s something else for the defense to do.
Believe it or not, there is one even dumber practical problem with the way the policy works. If an attorney forgets to provide a self-addressed, stamped envelope, the clerk will mail the attorney a letter telling the attorney he or she forgot it. Although the letter threatens that the clerk will not mail out any future letters or orders, the clerk usually continues to mail out orders, each with the accompanying angry letter. Many attorneys in the jurisdiction have a box in the clerk’s office and affix a post-it note to the extra order asking the clerk to put it in their box. When the clerk loses the post-it note, which is not uncommon, they will mail the attorneys the same letter he would’ve gotten had he been unaware of the policy.
From what I recall, the letter lists the case title, the case number, the date of filing, and the type of order, so it likely took up a little bit of someone’s time to create. It’s also an extra sheet of paper, and thus offsets the extra copy the defendant was supposed to provide.
To summarize, the policy likely took a fair amount of time, effort, and resources to create and implement, and it doesn’t actually save paper because they don’t use the extra copy anyway. In fact, it wastes paper because they mail out a letter with the order if the defense attorney forgets about the policy. Furthermore, enforcement takes up time that employees could have used for other, more important things, and it creates additional paperwork for the court to shuffle around.
All things considered, I’d say this is another brilliant government idea.