Criminal Justice Section  


Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Criminal Justice Matters

J. Vincent Aprile II

Abuse and Misuse of Litigation Performance Standards

No reasonable student of the evolution of the criminal defense function in this country would challenge the value of the development and refinement of national standards pertaining to the representation of criminal defendants at each phase of the criminal justice system. Standards, such as the American Bar Association’s "The Defense Function" and the National Legal Aid and Defender Association’s "Performance Guidelines," have provided a vital blueprint for revealing not only the best practices and approaches, but also a mind-set for zealous advocacy.

In a misconceived effort to develop quality litigators, some institutional public defender programs have perverted the function of litigation performance standards and used them as "to do" lists in every case. Some defender programs have exacerbated that misuse by transmogrifying such standards into the basis for performance evaluations of their lawyers, insisting that each client’s case be analyzed and practiced according to a generic set of rules governing the individual lawyer’s conduct in the case.

This abuse of these national standards is the result of defender management practices that have equated the practice of criminal law with the supervision of such assembly line occupations as the manufacturing of automobiles or refrigerators. In a rush to inject "established" management principles into the operation of public defender delivery systems, some defender program directors made the mistake of concluding that there are few valid differences between managing a manufacturing or service company and overseeing a program that provides individual lawyers to represent indigent clients on a one-on-one basis. Thus, some defender programs embraced management models that emphasized standardizing the work and micromanaging the lawyers’ techniques and judgment under the rubric of "one size fits all" litigation procedures.

Lost in this approach was the realization that excellent lawyering always contains a component of "art"—individual creativity that transforms rote practices, such as a discovery motion or jury instructions, into effective pieces of a litigation mosaic, unique to this client and this charge. Instead, the standardized approach to defender representation, through brief banks, motion files, micromanagement by supervisors, and mandatory performance guidelines, attempts to perpetuate within a defender program a "cookie cutter" approach to stamping out litigators who are never encouraged to break the program’s mold even though such creativity affords the indigent client the best chance of success in his or her case.

Within public defender programs, regardless of their size, a number of common factors pressure administrators to opt for "by the numbers" representation rather than creative, individualized litigation plans in every case. By accepting high caseloads for staff lawyers, public defender administrators force themselves to opt for "quick fixes" to enable their staff to service all the program’s clients. Thus, raiding the brief bank or motion file to save time preparing a new document also means in many cases a failure to tailor the document to the unique circumstances of the present client’s case and a failure to master the nuances of the issue to be litigated. Budget restraints often induce public defender administrators to "green" their litigation staff by discouraging career public defenders, forcing the less expensive, inexperienced staff to shoulder too many cases too soon. In this milieu, resort to supervisors usurping the independent professional judgment of the inexperienced staff lawyer is commonplace, as is the administration’s reliance on "to do" lists as a gauge of whether competent representation is being provided by individual staff lawyers.

Public defender administrators were not the only managers to make this error in applying inappropriate management principles to "creative" staff. Newsrooms across this country experienced the same problem as management enacted policies calculated to reduce journalism to "assembly line" work, without regard for the resulting loss of "creativity" and quality reporting. Today much has been written critical of this management error and its unintended repercussions for the profession of journalism.

As one newspaper editor explained, "‘If you overlay some factory model onto the newsroom, you begin to detract from the thing that makes for a good newsroom—creative freedom. You can put a quantified system into any newsroom, but good journalists won’t work there." (Doug Underwood, Assembly-line Journalism, Colum. Journalism Rev., July/August 1998, at 42–44.)

By attempting through mandatory performance standards to control how the individual public defender attorney practices every case, defender administrators misapprehend not only the purpose of national standards, but also the fundamental principles of effective representation in criminal cases. As the United States Supreme Court recognized many years ago, "[p]revailing norms of practice . . . reflected" in national standards "are guides to determining what is reasonable, but they are only guides." ( Strickland v. Washington, 466 U.S. 668, 688 (1984).)

In the context of assessing ineffective assistance of counsel, the Supreme Court has emphasized that "[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." ( Strickland, supra at 688–89.) What appears in the context of an abstract, general discussion of tactics as the "best practice" may, in the reality of the specific circumstances of an individual case, be inappropriate or counterproductive to the overall theory of that case.

Such a "paint by numbers" approach to evaluating a public defender’s performance as a litigator is in actuality the defender program unethically limiting the staff attorney’s independent professional judgment and denying the indigent client his or her right to an attorney unfettered by institutional restrictions on how the client’s case may be practiced. As the Supreme Court has recognized, "[a]ny particular set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." ( Strickland, supra at 689.)

When public defenders strive not to master the case, but only to complete all the mandatory steps required by the defender program, the quality of representation will always suffer. The Supreme Court has recognized this reality. "Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s case." ( Id.)

Those who drafted these national standards recognized their inherent limitations, particularly as recipes or blueprints for preparing an accused’s defense. "The unending variety of factual situations presented by criminal cases and the constant changes in criminal law and procedure require that the attorney approach each new case with a fresh outlook." (National Legal Aid and Defender Association, Performance Guidelines for Criminal Defense Representation (1995), at vi.) But those very factors complicate the development of national performance standards. "These complexities also make the drafting of general performance guidelines a difficult and challenging task." ( Id.)

Standards, such as NLADA’s performance guidelines, are designed to serve a specific purpose. "The object of these Guidelines is to alert the attorney to possible courses of action that may be necessary, advisable, or appropriate, and thereby to assist the attorney in deciding upon the particular actions that must be taken in a case to ensure that the client receives the best representation possible." ( Id.) The acknowledged function of these standards is clearly guidance. "The Guidelines are intended to provide guidance to criminal defense attorneys (by identifying potential options, actions and relevant considerations). . . ." ( Id.)

General litigation performance guidelines are nothing more than guides for practitioners, not individualized battle plans for each client’s case. Standard 4–1.1, "The Function of the Standards," in the ABA Criminal Justice Standards, The Defense Function (3d ed. 1993), explains that "[t]hese standards are intended to be used as a guide to professional conduct and performance." It is both an abuse and misuse of these national guidelines when defender programs repackage them as performance standards to be used to evaluate the overall competence of individual defenders in their various cases.

The prerequisites for an effective standard for use in employee performance appraisals, according to the experts, are that it should be as specific, pertinent, attainable, measurable, and observable as possible. By their very nature, national criminal defense performance guidelines are inherently the antithesis of effective performance standards for employee performance reviews.

None of this is meant to denigrate in any way the incalculable value of these national standards in improving the quality and effectiveness of criminal defense representation, whether by retained counsel or public defenders. These national standards have done much to educate and stimulate the criminal defense bar of this nation. These standards should not now be distorted by public defense delivery systems into mandatory performance appraisal standards that will both suppress the independent professional judgment and stifle the creativity of institutional public defenders, while transforming public defense into assembly-line representation.

J. Vincent Aprile II is a senior capital litigator with the Department of Public Advocacy in Frankfort, Kentucky, where he has been a state public defender for 29 years and served as the agency’s general counsel for 17 years (1982-99). He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.

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