Appointed Counsel Vol. 10 - Sufficient Specificity of Claims

Section 6 of Rule 13 states that "counsel will be held to a high degree of care in keeping of contemporaneous time records, and that failure to provide sufficient specificity…may constitute grounds for denial of the claim for compensation or reimbursement." Nobody likes returned claims on either side, neither the attorneys nor the people processing the claims.  Here to help guide you through these specifics are host Joe Byrd, and two of the people who process these claims, Wyatt Jordan – Senior Auditor over criminal claims, and Jada Herndon – Senior Auditor over civil child welfare claims. This podcast is intended for attorneys.

Produced by David Stripling, Tennessee Administrative Office of the Courts

Transcript

00;00;01;20 - 00;00;33;18
Host
Welcome to Appointed Counsel podcast presented 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 ten Sufficient Specificity of claims. The AOC is tasked to ensure the claims that are submitted by attorneys comply with Supreme Court Rule 13. Eight non attorneys processed about 90,000 claims across the state last fiscal year.

00;00;33;20 - 00;00;54;08
Host
They do this by looking at a claim that's almost like putting pieces of a puzzle together. They're looking at claims, a few orders and the entries in that claim trying to piece together almost like a puzzle to see if the claim makes sense and it complies with rule 13 today. To help me talk about the issue of sufficient specificity of claims.

00;00;54;10 - 00;01;12;26
Host
I've asked Wyatt Jordan, who is our Senior Auditor, over the criminal claims that come in, and Jada Herndon, who is our Senior Auditor over the civil child welfare claims that come in to join me in this podcast. Wyatt, glad to have you today. I do think you and Jada, we're glad to have you as well.

00;01;13;01 - 00;01;14;04
Jada Herndon
Thank you Joe.

00;01;14;07 - 00;01;52;27
Host
Now, section six of Supreme Court 13 is something you all are familiar with. It's sort of our guidelines and how we are actually auditing or reviewing claims that come in specifically what section 6A6 says is that counsel will be held to a high degree of care in keeping of contemporaneous time records, supporting all claims and in the application for payment counsel is required to maintain records supporting claims for payment, failure to provide sufficient specificity in the claim or supporting documentation may constitute grounds for denial of the claim for compensation or reimbursement.

00;01;52;29 - 00;02;22;02
Host
Now this specific rule is very important, right? I mean, this is the rule that that we're looking at attorneys to keep these contemporaneous time records and then to give us a description of the activities that support the claim. I don't want to talk so much about the the documentation, the orders. What I want to talk about today is the entries that they put into their claims so that we can figure out, like I said, like a, like a puzzle piece, what it is that actually occurred and what it is that we're actually paying for.

00;02;22;04 - 00;02;40;23
Host
Now, outside the practice of law, there are very few professionals that live their life tracking their time daily and what they do for billable hours. But unfortunately, in the practice of law, this is just a rule of life. It's still the standard today for the legal profession. We live by billable hours, and really, that's what rule 13 is based upon.

00;02;40;25 - 00;03;03;24
Host
I know the hourly rate isn't great, we all know that. But still it's hourly rate. And for you and Jada's sake, I just want to put this disclaimer out there. I understand the frustration sometimes that attorneys have when they have to have their own contemporaneous time records. Maybe it's a time management software program, or maybe some are using handwritten time records, and then they still have to enter their time into a cap.

00;03;03;25 - 00;03;36;16
Host
It's like doing it twice, right? And so I get that frustration. And even more, just like in private practice, you don't bill a client for tracking your time and creating invoices. They can't claim time for the time that they're putting together their invoices. And I know also we have a very small minority who give us too much right in the activities and the majority, I would say we have a good middle group that tells us pretty well what we need to know, but we do have a good number that just leave us very little.

00;03;36;16 - 00;03;53;16
Host
And what they tell us, and sometimes we just sort of let that slide. But we really best practices and what we really need them to do is to give us that sufficient specificity. I guess the number one thing I want to say is, from my perspective, they need to hold on to contemporaneous time records. So if I have questions, they can produce those records.

00;03;53;17 - 00;04;19;13
Host
That's pretty important. But the second thing is the specificity that you both have kind of been doing this for a number of years, even longer than I have looking at these claims. And you've seen some things. So what I want to talk about is what are some some of the things you see that we don't really want to see in terms of the description of their activities, and then what are some things we want to see in terms of the descriptions that they get for the activities?

00;04;19;13 - 00;04;29;07
Host
And we're talking about the activities that's in the second tab, activities for the entries of the time that they get. Who wants to start? What are some the things that we don't want to see.

00;04;29;10 - 00;04;34;13
Wyatt Jordan
Very vague descriptions basically is, in my opinion, like just hearing, yeah.

00;04;34;13 - 00;04;37;01
Host
Give me an example. They just put hearing?

00;04;37;01 - 00;04;48;05
Wyatt Jordan
We would like to know what kind of what happened in that hearing. And it doesn't need to be a paragraph or anything, but it should be. Yeah. It was just a motion hearing. Is this the hearing that you dispose of the case of, you know.

00;04;48;08 - 00;05;05;01
Host
It seems like that's most important to when we get near the end. Right. Is this a final hearing. So Jada in DNNs and TPRs is which I know this is an audience going to a narrow group of people who do indigent representation so they know what I'm talking about, about dependency and neglect and termination of parental rights cases.

00;05;05;06 - 00;05;15;19
Host
But that's in your that's in your world. Jada, we need to know right on some of those, especially the predisposition orders. We need to know what hearing that was don’t we?

00;05;15;26 - 00;05;39;17
Jada Herndon
Yeah. So it's really important especially in dependency neglect because we really need to be able to determine when your phase one ended, when your phase two began, when the adjudication occurred. A lot of times you can have a termination of parental rights running concurrently with the phase two and appeal. So we need to be able to distinguish the activity from all of those hearings and know that they're being billed on the correct claim.

00;05;39;23 - 00;05;49;25
Host
So if it says just hearing it would help you help the auditors that you work with, if they saw that it was saying the adjudication and the disposition hearing. Right?

00;05;49;25 - 00;06;00;11
Jada Herndon
Correct. Because then that lets us know this is the ending of phase one. So when phase two is submitted, we can pick up and go along with the with the continuation of the case.

00;06;00;13 - 00;06;18;16
Host
And I get, you know, like I said, I get the attorney just won the put hearing in. Right? Because they've already put it down in their time records and they don't know why we have to ask for it. But this is important both in terms of DNNS and TPRS. But in the criminal world, it's important to write to you because we need to know how the case ended.

00;06;18;16 - 00;06;36;18
Host
And they don't always why it they don't always think to put how a case ended on that properties page. I've seen a lot of claims where they don't put that. So knowing if they just put hearing in there, that's not sufficient. What should they be putting? I know you said like motion, but what about the final hearing? What would be a better thing for them to put in for their final hearing?

00;06;36;19 - 00;06;45;19
Wyatt Jordan
Basically what kind of disposition it was it for was a plea withdrew. Anything like that would give us some kind of indication that the case is actually over.

00;06;45;21 - 00;07;06;28
Host
Yeah. And that's that's a great point for us to bring up the policy. And we have the policies on the website say that the disposition of the case, the date of disposition of the case starts the running. Actually, the rule says the 180 day period starts on the disposition of the case. The policy says that that's the file stamp date on the final disposition, order or judgment.

00;07;07;04 - 00;07;41;21
Host
But if an attorney withdraws, okay, so there is no final disposition related to that attorney's activities. We go by the order that allows that attorney to withdraw, and that starts the 180 day running. Correct? Right. So, now one of these days, right, I'm going to get you on the podcast. When? Because Wyatt also takes care of our capital cases, which does go the opposite way in trying to calculate 180 days, because those I don't even want to confuse people, but those have to be they have to do interim billing, whereas interim billing isn't allowed in the vast majority of the claims we do.

00;07;41;26 - 00;08;06;07
Host
So Wyatt has to bend backwards to see did they actually file a claim within 180 days when he does, those reviewing those claims? But when we're talking about 180 days putting obviously and I know it's easier sometimes if they give us that final judgment. But putting in plea entered and on this date, would that be sufficient if they just put hearing plea entered or hear or jury verdict entered at day six of trial?

00;08;06;07 - 00;08;21;11
Wyatt Jordan
Yeah, I'd be okay with that. Just a lot of times on the properties tab, sometimes that disposition date on the properties tab doesn't reflect any of the activities. But then the second tab of activity. So having that date match something within there would help us out too.

00;08;21;13 - 00;08;37;17
Host
I've said this on different podcasts and in the newsletter that the attorneys put a disposition date on there, and we're going to go by the rule, no matter what they've said, we're going by the rule. So sometimes you all do it. Just as I argue, I'll return a claim and say, give us the supporting documentation for the disposition date.

00;08;37;17 - 00;08;55;06
Host
The time that on the properties page, and we're going to go by what the real calculation is, not by what they put in there. Because, Jada, in your world, there is one kind of claim that doesn't go by the final dispositional order when the 180 days starts running, and that is your.

00;08;55;07 - 00;08;56;12
Jada Herndon
Phase two.

00;08;56;14 - 00;08;57;13
Host
And phase two is.

00;08;57;13 - 00;08;59;05
Jada Herndon
What, the last date of activity.

00;08;59;05 - 00;09;23;02
Host
Yeah, phase two is the post dispositional dependency neglect cases and it's last activity. I love reviewing those because it's really easy right? We just got to look and activities. Sometimes we find that the attorneys don't think to put the final activity in there. And now something that's happened in the last year or so, we also allow the attorneys to put in time for any of like their complex and extended motions.

00;09;23;02 - 00;09;26;27
Host
We used to not do that. So that can be their last activity in those cases. Correct.

00;09;26;28 - 00;09;30;18
Jada Herndon
It can last activity is whatever your last activity was.

00;09;30;20 - 00;09;46;11
Host
And the only time I think we've we've made some exceptions to that is been when we saw that the case actually in court was closed like a year or two ago. And the attorney just tries they realize they didn't get their claim in time and they just try to just calling the clerk to say, yeah, that's a closed file.

00;09;46;11 - 00;10;08;07
Host
That's not that's not going to be sufficient. Right? Correct. So what we mean is, is you're actually doing something on a case that's still an active ongoing case. So what else. What are some that those are they activities in courts. And I can think of things I've seen them say like reset and things like that. Are there any other in court descriptions that we would want them not to use and use?

00;10;08;09 - 00;10;25;24
Wyatt Jordan
Not that I can really think of and courts pretty self-explanatory, I would think. Now the out of court it can get a little varied I guess, but a lot of thing that I've looked at is I know that a cap does not allow you to enter multiple review days for the same day, depending on what you're doing. Like say you're researching a thing.

00;10;25;24 - 00;10;46;02
Wyatt Jordan
So in a cap it says research and review. So if you're researching this and reviewing something else on the same day, you have to itemize those things. So basically if you're researching a motion itemize how long it took you to do that and then say you're reviewing the discovery. Itemize how long it took you to do that within the same description.

00;10;46;08 - 00;11;10;15
Host
Yeah. And just just so everybody knows what we're talking about, there's a difference between entering the description of the activity and the expense type. Right? Yes. The type is that review and research researcher media. True. And the description. So everybody it's it looks like two columns almost when they go to the activities. So so what you're saying is that it doesn't allow them to enter the same kind of activity because it assume that it's a duplicate.

00;11;10;15 - 00;11;28;04
Host
And right. And, and I always tell everybody that I understand their frustration for a cap. We have our own frustrations with a cap and and we get it as well. I think that there are going to be times that cases are going to be reset. We know that our case is going to be continued and so sometimes it's okay to put a hearing continued.

00;11;28;04 - 00;11;35;26
Host
Hearing continued. That's going to happen because that's a very purpose of the hearing. It's a status hearing. And the case is just getting continue.

00;11;35;29 - 00;11;50;00
Wyatt Jordan
Now, I did just get there seeing a few claims here a minute ago that had two dates on in court. It said motion to withdraw. Okay. Well which they did you actually withdraw. And you know that's hard for us to determine without actual judgments or a final order.

00;11;50;01 - 00;12;11;10
Host
I do see sometimes where people put in their out of court activities, they'll put down prepared for this hearing. And then you look up to see was there a hearing in the in court and there's no corresponding in court activity? Well, for me, not only are they cheating themselves because they should be at least getting probably a 10th of an hour, you know, that's the minimum that they built.

00;12;11;11 - 00;12;32;09
Host
But also it really makes it confusing when we're trying to figure out how did this case end, where did this go? So if they put down that they prepared for a hearing down in the out of court activities, I look for them to have the in court corresponding in court activity, don't you? I do okay, Jada, let's talk about out of court activities.

00;12;32;09 - 00;12;38;11
Host
What are some of the descriptions of activities that you have found that aren't very helpful to us in reviewing the claims.

00;12;38;18 - 00;12;59;21
Jada Herndon
On the dependency neglect side, I think give them a little bit more detail is better. Especially I know some of the activities can be kind of lengthy. So you want your description to be able to justify the amount of time that you're billing. So if it's not very detailed and vague and but you're billing 3 or 4 hours, you know, we're kind of going to look at it.

00;12;59;21 - 00;13;11;17
Jada Herndon
And then we're either going to have to return a claim which we don't like doing, or email you for some clarification. So we kind of need what's being billed submitted in the description to kind of match what the time frame is that you're billing.

00;13;11;20 - 00;13;14;00
Wyatt Jordan
That's a good point. I see that non-capital is also.

00;13;14;03 - 00;13;33;19
Host
You see that in the criminal side that, you know, it occurs to me that while this may be frustrating to the attorneys, if the attorneys ever work for an insurance company who will look very closely at their invoices for their hours, they will literally put down, you only get so much time for a particular kind of motion, a motion for summary judgment.

00;13;33;22 - 00;14;08;25
Host
You preparing that motion is only going to be X number of hours. A motion for continuance might only be less than a half an hour. We don't do that. We don't look that granular at them. And I don't look for you all to sort of look at the records that way. But for all the frustrations they might have about what we do, really, in the legal profession, where you're working for clients that are corporations or insurance companies, they look at what you're talking about and a far more granular level saying what exactly what you're saying sounds to me like is it's just just give us a general enough description so we know, hey, that that

00;14;08;25 - 00;14;29;11
Host
supports a three hour time entry that was $150 activity, right? Now, now we're glad to say $180 activity since the rates up to $60. So all right Wyatt your turn, out of court activities. What are some unhelpful descriptions that you can think of and what would you rather see for out of court descriptions of activities?

00;14;29;13 - 00;14;39;28
Wyatt Jordan
Similar to what she said? Just elaborate a little bit more on the descriptions and try to make sure that what is being said makes sense with the time that is being claimed.

00;14;40;02 - 00;15;01;03
Host
But you guys are being very kind. Let me air a couple of complaints that I have abbreviations now. There are some that we know, right? Like you're in the civil child welfare side. We know what a c ftm means. Or f crb. Yeah, we know what those are. But I remember when I first came, there are some courts that that talk about a 17.75 hearing.

00;15;01;06 - 00;15;22;04
Host
And I practiced in several counties doing DNN work and TPR work. Of course, I know it was about 20 years ago, and so that was all. But we never called anything a 17.75 hearing. And what I learned was when the attorney put that down was he was talking about the final status hearing as the child was getting ready to age out.

00;15;22;07 - 00;15;38;29
Host
And if I see a 17.75 hearing, I'm not going to return it to the attorney now. But I think that would be helpful for the attorneys to know that if you're going to put some abbreviations down, we know most of them. There's one that I always get caught on that's come up a couple times. Jada, what is the one that I was talking about the other day?

00;15;39;00 - 00;15;52;12
Jada Herndon
I believe this is a newer one that we're starting to see and is the MSA. See the Metro School Attendance Committee, and those are stemming from the educational neglect. Okay. At first I didn't I didn't know what that was. It's like, what is MSA C right.

00;15;52;12 - 00;16;12;13
Host
And that's here at Davidson County. Correct. Mainly so my point is, is that the attorneys may know what that stands for, but we don't know what that stands for. And that could be an important issue for us to to understand the nature of the claim. So those abbreviations are a little bit of a irritation sometimes to me, when it's hard for us to understand.

00;16;12;16 - 00;16;27;16
Host
Well, we can't walk away from talking about entries without talking about time on the entries, right? We like the federal system. Don't let them do block billing. One of your favorite topics. Why it tell them what block billing is.

00;16;27;16 - 00;16;34;17
Wyatt Jordan
Block billing would be billing and point 5 to 1 hour increments instead of 10th increments.

00;16;34;19 - 00;16;48;18
Host
Yeah. So basically what you're talking about is an hour, hour and a half. That's not that. The standard is both in the federal court where they do the indigency appointments. And really what I've learned across the states that that do this is tenths of an hour. They're supposed to be billing.

00;16;48;18 - 00;16;50;16
Wyatt Jordan
And that's what itemization helps for too.

00;16;50;16 - 00;17;08;16
Host
That doesn’t mean that a hearing can't take place in 30 minutes? Sometimes it's going to we. Sure. But it's when we see that constantly that we don't see them doing anything but one hour or a half hour. We know they're basically doing the block billing and it's something that isn't allowed. It's supposed to be done in tenths.

00;17;08;18 - 00;17;12;18
Host
Jada, is there anything else you're seeing in some of the claims that are coming through?

00;17;12;20 - 00;17;33;03
Jada Herndon
Yes. And this is going back to in court hours. And now we have a lot of new attorneys that are billing ACAP claims now. Welcome. One thing we're seeing lately is all activity being billed in court might be 1.8 hours, and there's no correlating of court activity. We really needed wait times and travel times or anything that's not you addressing

00;17;33;03 - 00;17;35;01
Jada Herndon
The judge billed and out of court.

00;17;35;06 - 00;17;51;24
Host
Yeah. And this is important. I know the reason that the attorneys used to think that they would do the in court and out of court billing was because there used to be a different rate that we paid. Right? I mean, that was back in the days I got paid $40 out of court, $50 an hour, only for the time I was up talking to the judge or to the jury.

00;17;51;24 - 00;18;10;26
Host
But attorneys think, well, that's gone. Why do we still have to do the difference between in court and out of court? And the fact is, is the court uses this sometimes and how it looks at and analyzes the data on how things are being used. So we still need to do that in court. In court Time is time that is in front of a judge or talking to the jury.

00;18;10;28 - 00;18;17;14
Host
In that moment, all out of court time paid the same rate, but all out of court time would include wait time.

00;18;17;21 - 00;18;23;01
Jada Herndon
Any discussion with your client or opposing D.A. that's not in front of the judge.

00;18;23;06 - 00;18;25;16
Host
Then in your world, it would be talking with the.

00;18;25;16 - 00;18;29;23
Wyatt Jordan
D.A., talking with the client, and making text message. You know, anything like.

00;18;29;23 - 00;18;47;24
Host
That, right? So while they're in the courtroom, it's not caught in court time, because in court time refers to when I'm talking to the judge, when I'm talking to the jury, when I'm examining a witness or cross-examining a witness, something along those lines are making an oral argument on a motion. So we need then to keep those divided.

00;18;47;24 - 00;19;06;25
Host
And if they are putting everything in the in court, they need to stop because it's something where in this comes back to we try to keep our turnaround time in about 30 days. The eight non attorneys handling those 90,000 claims, it takes us some time to get those claims. They just come in constantly over the weekend all the time.

00;19;06;25 - 00;19;33;07
Host
We get them. And so it takes us some time to turn those around because of various phases and reviews. So we try to keep it to 30 days. The number one thing that keeps claims from getting processed in that time is when we have to return a claim. So if you put everything in the in court and we've got to return it to make you fix it, well, you may have just now cost yourself another week or two by the time it goes through the rest of the process.

00;19;33;07 - 00;19;37;14
Host
So not getting your claims returned is one of the key things.

00;19;37;15 - 00;19;40;05
Wyatt Jordan
We know acap don't give you a notification when a one is returning.

00;19;40;05 - 00;20;07;04
Host
Yeah, that's a I wish acap had the ability. We looked into that last year of being able to send emails when there was a change or return in the return folder, and it was just cost prohibitive. It it's just it was so expensive for us to even make that change. We didn't do that. Well, then we have put up on the website some examples that we think are pretty good examples of activities, both in the civil child welfare cases and in the criminal cases.

00;20;07;04 - 00;20;24;25
Host
And the attorneys can always take a look. tncourts.gov at what some of the good examples of entries are, and we encourage them to do that. Thank you for listening today to Appointed Counsel. For more information and check out the Indigent Representation web page at tncourts.gov.