Page 140 - Ad Hoc Report June 2018
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one judge confided, “I’m very much concerned with cost containment, and I’m very much concerned that whatever decision I make is also going to affect cost.”408
One way that districts have tried to promote greater consistency and reduce unwarranted voucher cutting is by adoption of a “presumptively reasonable” stan- dard. One panel attorney told the Committee:
I do think there also as I said needs to be a degree of deference....If an attorney that we have entrusted with panel membership says that this was a necessary thing to do, there needs to be a really good reason for you to say that it’s not necessary. If somebody is abusing this, they shouldn’t be on the panel.... I’ve seen abuses, they shouldn’t be countenanced. [But] we shouldn’t be presumed to be abusing. We should be presumed to be reasonable. We should be presumed to be rational, and we should be pre- sumed to be professional. 409
As one federal defender explained, that is the standard that attorneys at FPDOs and CDOs are held to by their supervisors: “I don’t look at the request from my attor- neys in my office and say, ‘Is it absolutely necessary? Is there anything you could do?’ In a normal case....If they’ve written an explanation of why they need it and it’s the first request, I’m going to approve that presuming it’s reasonable.”410 Another federal defender testified that deferring to panel attorney requests as reasonable sends an important message to the entire panel about the value of a zealous defense for every client. He told the Committee that panel attorneys should be concerned about the client and building an effective defense, not about whether a judge will challenge
the cost of that defense and potentially withhold payment.411 That presumption is already used by the CJA supervising attorney in one district, where “part of her job
is to go through vouchers line by line reviewing what the attorney had indicated on there. She may ask for clarification or have an attorney maybe explain a little more in detail so the judge understands. But it’s presumptively reasonable.”412
5.2.4 Arbitrary Voucher Cutting
The problems described above, lack of knowledge, experience, training, and incon- sistency affect efforts to apply the vague “reasonableness” standard to a particular
408 JudgeDavidCarter,C.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel5,Tr.at6.
409 RachelBrill,CJAPanelAtty.,D.P.R.,PublicHearing—Miami,Fla.,Panel6,Tr.at30-31.The Committee heard testimony that some judges required attorneys to submit vouchers accompanied by research trails printed from Lexis or Westlaw in order to justify time researching an issue for their clients and be compensated for it. See David Eisenberg, CJA Panel Atty. Dist. Rep., D. Ariz., Public Hearing—Santa Fe, NM, Panel 6, Tr. at 28.
410 LisaHay,FPD,D.Or.,PublicHearing—Portland,Or.,Panel6,Tr.at24(alsostatingshetakesinto account whether the expert rate looks reasonable based on the going rates in her district, which she is familiar with in her position as lead defender).
411 ReneValladares,FPD,D.Nev.,PublicHearing—Birmingham,Ala.,Panel3,Tr.at11. 412 JessicaSalvini,CJAPanelAtty.,D.S.C.,PublicHearing—Miami,Fla.,Panel4,Tr.at29.
No recommendation presented herein represents A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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