Appointed Counsel Vol. 9 - Policy Highlights

This episode covers the new amendments to Rule 13, including redactions that are no longer required, policies relating to mistrials, and deadlines for the 180 day rule. Host Joe Byrd explains the changes you will see moving forward, in a podcast intended for attorneys. 

Produced by David Stripling, Tennessee Administrative Office of the Courts

Transcript

00;00;02;00 - 00;00;33;04
Host
Welcome to Appointed Counsel podcast a by Tennessee Court Talk. For those involved in indigent representation, I'm Joe Byrd, lead attorney for the Indigent Services team of the Tennessee Administrative Office of the courts. Episode nine Policy Highlights. Rule 13 can't control everything. There are just some things you can't put in the rule. So to make up for that, we have policies, certain policies, and how we handle claims, how we look at specific deadlines, those sorts of things.

00;00;33;07 - 00;00;59;10
Host
So we attempt to have policies that are formalized and we publish those policies. Now on the website you can go to TNcourts.gov and go to the Indigent Services team page. And you'll see that we have those policies listed for you. I want to highlight a few policies that I think are important. First of all, a recent change earlier this year was that redaction of court orders and motions are no longer required.

00;00;59;13 - 00;01;25;13
Host
Now, this is a big deal, because this is the number one reason that claims were returned and returned claims is the number one reason that claims are delayed in getting paid. So by not having to deal with the redaction not only saves the attorney time, not having to redact the order in the motion, it also keeps us in the AOC from having to return the claim back to the attorney for the redaction.

00;01;25;16 - 00;01;48;09
Host
Now, back in the days, we said the reason we weren't doing the redaction was because it would even slow the process down. And that's true because there were only eight of us. However, we were able to negotiate a circumstance where we no longer had to do the redactions and keep the motions and orders internally within the AOC. Therefore, you no longer need to redact motions and orders.

00;01;48;12 - 00;02;10;12
Host
The exception to this is as if you have a receipt or an invoice that might have like a EIN number on it, or something along those lines. Those need to be redacted still, because those do get sent over to finance and administration. So we need those documents still receipts, invoices still need to be redacted for any personal identification information.

00;02;10;15 - 00;02;38;18
Host
But orders and motions, which are mostly the kinds of things that come through for claims. Those no longer need to be redacted. We believe this policy is going to be able to make us more efficient and processing your claims. Another big issue is our policy on combining claims. Now, the rule has been recently revised, but I want to point out to you how that we look at from a policy status on when claims should be combined.

00;02;38;21 - 00;03;05;25
Host
Rule 13, section six has time spent by counsel on a single case or proceeding shall be included in a single claim for compensation. However, often for judicial economy, courts consolidate cases where possible, so a client is charged with multiple charges and those don't all come at the same time. But the court doesn't listen to each charge individually, even though they may have been raised and charged on different days.

00;03;05;27 - 00;03;37;21
Host
The court consolidates all of those charges and hears them all in one proceeding. Oftentimes, in a DNN dependency neglect case or TPR, there can be children added and not added, and all of those will be consolidated. Typically in one proceeding. Our policy recognizes that reality. Previously, our policy was a bright line rule that said, if charges or cases were disposed of on the same day, they had to be combined.

00;03;37;24 - 00;04;07;13
Host
That policy has been slightly broadened so that now here's the official policy. Claims must be combined into a single claim where one. The court has consolidated the actions underlying the claims. Typically in a DNN or a TPR or two, where criminal charges against a defendant are heard in the same proceeding. Now, we recognize that sometimes courts do keep charges separate, and here's them in different proceedings.

00;04;07;15 - 00;04;33;07
Host
So it might be helpful for you to understand how we look at should a claim be combined. We look at is it the same appointment order? Was it disposed of on the same date? Are there common in court time entries? Now part of this is also for the convenience of the attorney. We're assuming that you don't want to track fractions of hours and times spent on the different cases, and you would just put them in one claim.

00;04;33;09 - 00;04;55;23
Host
But there are times where you clearly track it differently. There's a different appointment order. And certainly if there's a different dispositional order or judgment, then it's a separate claim. Generally, though, if it's the same client, same appointment order disposed of on the same date. There are common in court time entries and even out of court time entries combine it all in one claim.

00;04;55;25 - 00;05;24;02
Host
I know it's not a bright line rule, and sometimes we have to work through it, but that's simply the nature of the beast. The next policy is disposition date. Rule 13 section six A5 says this appointed counsel in non-capital cases are not permitted to file interim claims, but shall file claims for compensation no later than 180 days after disposition of the case, and each court in which representation is provided.

00;05;24;09 - 00;05;45;21
Host
Now, the first thing I would note about that is, is please note it is the disposition of the case in each court in which representation is provided. So if you change courts, that claim ends and it goes to another court, another claim. So the trial court is one claim. The Court of Appeals is another claim and the Supreme Court is a separate claim.

00;05;45;23 - 00;06;12;29
Host
Those are separate claims. Don't combine them. And they each have their own 180 day submission period. Section six A five continues. However, claims for the post dispositional phase of a juvenile dependency and neglect proceeding shall be filed no later than 180 days from the last activity related to the case. Claims for compensation submitted after the 180 day period shall be deemed waived and not paid.

00;06;13;01 - 00;06;37;12
Host
Please note the only case type that has the last activity as a disposition date is what we call a phase two, or a post disposition or dependency neglect case. The disposition date of all other claims are from the date of the dispositional order. The dispositional date is determined by that file stamped date of the final disposition order or the judgment.

00;06;37;15 - 00;07;03;21
Host
It's not told by filing an appeal. It could be told only in the rare instances of such things as a motion to alter, amend, or motion for new trial. Then the order on those motions would be the final dispositional order. But basically that final judgment, that final dispositional order in which there's no other contingency, the file stamp date, that's the date that the 180 days begins to run.

00;07;03;23 - 00;07;27;04
Host
Attorneys often just put the last activity on the properties tab as the disposition date. The AOC will not return the claim if it's clearly timely, even though the date on the property's tab is wrong. However, when the claim is near, the 180 day period, we will request a copy of that final disposition, order, or judgment to support the disposition date that you entered in the properties tab.

00;07;27;07 - 00;07;56;03
Host
And we are authorized to request that under section six six, another policy relates to mistrial. Although it's relatively uncommon, there are cases that end in a mistrial for one reason or another. Underlying the structure of rule 13 is the assumption that certain cases should generally take a typical number of hours from appointment until conclusion. However, the rule doesn't contemplate that a case will proceed to a full trial which ends in a mistrial and which is then required to be retried.

00;07;56;09 - 00;08;20;10
Host
The result is is that the appointed attorney finishes the case, usually nearly or completely exhausting the caps. Even the increased complex and extended caps appointed counsel is either forced to retry the case pro bono or request leave to withdraw where counsel is permitted to withdraw. That retrial means that the new attorney has to be appointed and gotten up to speed quickly.

00;08;20;13 - 00;08;50;17
Host
But this is a waste of judicial resources. So the policy was approved that in cases where a mistrial occurs, a new claim can be filed for the retrying of that case. It's important for the attorney when filing the claim for the retrial. After that, the mistrial has been declared to give us certain information. For instance, get a second appointment order, and in the appointment order, note that the first trial ended in a mistrial and that now you're being reappointed for the retrial of the case.

00;08;50;20 - 00;09;17;18
Host
Also, put that information in the time entries or in the history comment section in your claim in ACAP. The final policy that I want to address in today's podcast has to do with the deadline for the 180 day. Now claims, as we said earlier, have to be filed within 180 days from the file stamped date of the final dispositional order or judgment.

00;09;17;21 - 00;09;47;13
Host
But what happens when the 180th day ends on the weekend or on a holiday? Now, most attorneys know that the rules of civil procedure, rules of criminal procedure. The rules of appellate procedure. Whenever a deadline falls on the weekend or holiday, it always gets bumped. Then to the next business day. Rule 13 does not specify that the deadline is bumped whenever the 180th day falls on a holiday or on the weekend.

00;09;47;15 - 00;10;12;03
Host
And the policy has been in the past that the 180th day is the final cutoff. This policy has now been changed. The policy has been reviewed, and it's been determined that now rule 13 will conform with the other rules of procedure so that the 180th day deadline, if it falls on a weekend or holiday, will be bumped to the next day.

00;10;12;05 - 00;10;37;21
Host
This is the policy moving forward. It's not going to be retroactively applied to reactivate any former claims. There are various policies that will get set and will change. We try to make those policies available on the website or we put them in a memo. For instance, there's a memo that is newly published and is on the website now and was emailed to all attorneys whose email address was in a cap.

00;10;37;23 - 00;11;01;21
Host
Please review the memos because the policies are reflected in specific instructions are given to help you to keep claims from being returned or denied. I hope that going through these policies have been helpful, but I would encourage you to pay attention to as many of the policies and all the memos we send you as you can, to make sure that you're getting paid as quickly and as much as you can.

00;11;01;24 - 00;11;09;24
Host
For more information, check out the Indigent Representation web page at TNcourts.gov. This.