Appointed Counsel Vol. 18: Experts and Investigators

Joe Byrd is joined in this episode of Appointed Counsel by Laura Hood, a long time team member of the AOC, starting with the Fiscal Services Division and now with Experts and Investigators. Their discussion in this episode is centered around how attorneys can get experts and investigators assigned to their cases. 

Transcript

00;00;02;27 - 00;00;28;01
Host
Welcome to Appointed Counsel, a 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 18 Experts and Investigators. And today we have with us Laura Hood, who takes care of reviewing all of our expert and investigator invoices and orders.

00;00;28;04 - 00;00;31;20
Host
And so, Laura, we're glad that you're here today. Welcome to the podcast.

00;00;31;26 - 00;00;33;05
Laura Hood
Thank you for having me.

00;00;33;12 - 00;00;42;17
Host
So, Laura, you have been a regular employee here at the AOC for a few years. How long have you been employed here?

00;00;42;19 - 00;00;44;29
Laura Hood
I've been with the AOC for 24 years.

00;00;44;29 - 00;00;49;14
Host
24 years? And you were ten years old when you started. You're 34 years old.

00;00;49;15 - 00;00;51;09
Laura Hood
That is correct, right? Yes. Thank you.

00;00;51;10 - 00;00;58;17
Host
So, Laura, we're so glad that you're here. Tell us a little bit about what you've done over these 24 years here at the AOC.

00;00;58;24 - 00;01;23;21
Laura Hood
When I started 24 years ago, I was in the Fiscal Department and I was working on attorney fee claims originally, and then about 15 years ago, I was moved in to the experts and investigators just to do the audit. And, also did some of the court reporters initially.

00;01;23;24 - 00;01;52;14
Host
So, now it's interesting that you said you work with fiscal. And that gives me a great opportunity to explain something for, our attorney listeners. Prior to my coming two years ago, the Indigent Services team was a part of fiscal. Correct. And that sort of made sense because you all were processing claims for payments. But what was lacking, as I understand it, was that there wasn't an attorney kind of at the head who understood the process in the courts across the system.

00;01;52;14 - 00;02;14;25
Host
And so by bringing me on board, part of the idea was you would have an attorney who would oversee. So we actually brought you the entire team out of the Fiscal Division and were technically in the, Legal Services and Judicial Development Division of the AOC under General Counsel John Coke. But we're our own team and we're part of the legal division.

00;02;14;28 - 00;02;33;23
Host
And, but you've been doing you said 15 years, you've been doing experts, investigators. And that's really where I want to focus in today. So when we're talking about experts, investigators, experts and investigators aren't available for every case that is handled, and paid through the AOC. Is that right?

00;02;33;25 - 00;02;34;16
Laura Hood
That's correct.

00;02;34;23 - 00;02;44;04
Host
So, like, if I was handling just a standard dependency and neglect case, would I be able to get, an investigator, for my case?

00;02;44;06 - 00;02;52;11
Laura Hood
No, the only cases that are approved are going to be listed under five a.

00;02;52;13 - 00;02;53;19
Host
Yeah, under rule 13.

00;02;53;19 - 00;02;53;27
Laura Hood
Under Rule 13.

00;02;53;27 - 00;03;34;05
Host
Section 5A. And most, most of those are criminal cases. There's only a couple of times in juvenile cases, I think if I remember rule five a right. That would be for juvenile transfer hearings where they're going to try the child potentially as an adult. And then the second time, a change that was under my time being here, where the court revised the rule, where, if there if there's a reason for, juvenile delinquency cases and there is a, question of mental capacity at the time of the policy, at the time of the offense, then, there can be, an expert.

00;03;34;05 - 00;03;46;15
Host
We don't see those very often. It's usually juvenile transfer proceedings in in these cases that we we see experts, investigators usually almost everything else is criminal. I think, you know, if I'm not, that is correct.

00;03;46;16 - 00;03;47;07
Laura Hood
Criminal.

00;03;47;10 - 00;04;05;21
Host
So we say experts and investigators and those are two specific sections under under five section five of the rule. We we know that, there are different kinds of things that are required in the court, but the AOC has a responsibility to approve those claims, too, right?

00;04;05;24 - 00;04;07;02
Laura Hood
That is correct.

00;04;07;04 - 00;04;19;00
Host
And, tell me now, so, so an attorney just can't go out and just say, okay, I'm going to hire you, investigate or X to, to to work on this case and then submit an invoice to us. Can they?

00;04;19;00 - 00;04;45;02
Laura Hood
No, they must submit an order and a motion, have it signed by the judge, and then it must be sent in to the AOC for the Lead General Counsel for their approval. Once it's approved, they would receive, a copy of that approved order. Then they can request their expert to, start their services.

00;04;45;03 - 00;05;06;26
Host
Yeah, that's an excellent description because, for those cases that can get experts, investigators, and I would encourage attorneys to read over carefully section 5A, they will see the cases that can get experts and investigators. They first have to get that prior approval done. Prior approval order from the court. And the court has to make some particular things.

00;05;06;26 - 00;05;27;01
Host
They need to really look at section five A, because that order has to have certain things in it, like, you know, if an expert's outside of the 150 miles from the courthouse, an explanation for everything they tried to do to find an expert within that range, the particularized need, the court. That's part of the court's determination.

00;05;27;03 - 00;05;49;01
Host
The fees that are in our schedule used to be in rule 13. The fees that are schedule are deemed reasonable, but that fee has to be. That brings me to an interesting question. You and I talked about this recently. What if an expert says I'll do it for $4,000? Can we just accept an invoice for $4,000 and and approve an order that says it's a block fee for $4,000?

00;05;49;03 - 00;05;53;24
Laura Hood
No, we cannot. We do not accept block billing.

00;05;53;26 - 00;05;56;21
Host
Yeah. So it has to have an hourly rate to.

00;05;56;22 - 00;05;57;24
Laura Hood
That is correct.

00;05;57;26 - 00;06;24;19
Host
And actually section five talks about it having an hourly rate and I like what some judges do. Some judges want the, experts, and even the investigators to sort of give a description, a general description of the kinds of activities they would do and that are necessary in this case. But, so, okay, the process then is, is that, they go to the court, they get the prior approval order, and then that order is sent to us.

00;06;24;19 - 00;06;29;07
Host
Now, do they have to take paper copy, put it in an envelope and put it in the mail to us?

00;06;29;09 - 00;06;55;02
Laura Hood
No, we prefer it to be emailed. We have a indigent defense email address that they can submit their request to. And that's where the ball gets rolling. The order will go, to the lead counsel for their approval. Once it's approved, one of our staff members will email them back with a copy of the approved order.

00;06;55;02 - 00;06;59;08
Host
And when you say general counsel and you say the attorney, you're basically talking about me.

00;06;59;08 - 00;07;01;22
Laura Hood
Yes, I am talking about you Joe Byrd.

00;07;01;25 - 00;07;09;21
Host
But we don't want them emailing me. No, we want them to email it to this box. It's indigentteam@tncourts.gov.

00;07;09;25 - 00;07;10;17
Laura Hood
That is correct.

00;07;10;17 - 00;07;30;00
Host
All one word indigentteam@tncourts.gov and then it gets put in my queue for me to review. And I review those on a daily basis because sometimes I gotta, we gotta move those prior approvals and I review it. Now I'm not reviewing it. This this would let me talk a little bit about my review. My review is not the judge's review.

00;07;30;00 - 00;07;52;03
Host
The judge is looking at particularized need. He's looking at different things. I'm looking to see does it comply with rule 13 generally. And then is the fee within the schedule and everything that is required under the rule? Sometimes we will put down, an incremental approval. And do you can you tell us a little bit about the incremental approvals at all?

00;07;52;05 - 00;08;17;16
Laura Hood
A lot of times, what I am seeing on the incremental approvals, we have our experts that let's say they get approved for 2500 instead of their whole 5000. They tend to go over the 2500. And then we're having to go back in and request those additional funds be released.

00;08;17;18 - 00;08;48;09
Host
Yeah. Look, let me let me just, kind of back up just a little bit so everybody understands. So on the fee schedule, there are certain, incremental amounts, initial incremental amounts. So someone might get an order that's approved for $10,000, but based upon the nature of the charges in the criminal case, the incremental amount, let's say they get $10,000 for an investigator that is approved by the court up to $10,000, but we will not approve that initially.

00;08;48;11 - 00;09;05;07
Host
It's only up to $5,000. And the reason is that was set up by one of the Chief Justices years ago. It's sort of, just a little speed bump to slow everybody. Everybody down. These are taxpayer dollars. We want you to be sensitive about how that you're using it. And then it's a simple thing to get the other money released.

00;09;05;07 - 00;09;28;07
Host
All they have to do is email the original order to us and explain that the funds have been depleted and that they need to have the rest of the the rest of the funds released. And then we just we flip it around almost 24 hours within 24 hours, 24 to 48 hours back to them. Another thing I like to always point out is the email that you send it from is the email we're going to send it back to.

00;09;28;07 - 00;09;53;25
Host
So make sure that whoever sending us the email is the person who's taking care of getting the email back to your expert or investigator. So, yeah. And the the rates too, if, if they have a rate, that's, that's too high that we haven't have had approved that the Chief Justice has approved, we will either deny it and then they can always ask to have the Chief Justice give consideration.

00;09;53;27 - 00;10;13;15
Host
We do that. I wouldn't say all the time, but that happens. In fact, the Chief Justice just recently just handed down, an approval of one that I had to deny because it was over our rate. But, we send them up to the Chief Justice, and the Chief Justice reviews him. It's not a formal appeal process or anything like that.

00;10;13;15 - 00;10;33;15
Host
It's just another review by the Chief Justice. So your role, though, is you get started kind of right at the beginning. Now, I like to explain sometimes to people that a cap wasn't always created with everything in mind. And that's particularly true when it comes to experts and investigators. We have kind of a manual process that you have to do.

00;10;33;17 - 00;10;46;04
Host
I do know that we made some changes with investigators where they're able to put their own claims into a cap, now, but particularly with experts, though you have a manual process, you have to go through. Explain that to us a little bit.

00;10;46;04 - 00;11;11;01
Laura Hood
Well, that is still with the experts as well as the investigators. It's called a pre-approval number before, let's say an investigator can start there, invoice from home or their office. They must get a pre-approval number. So they email me or the box, as we talked about requesting a pre-approval number.

00;11;11;01 - 00;11;13;00
Host
Which we fondly call the p number.

00;11;13;13 - 00;11;40;15
Laura Hood
The p number. Yes, it's called the p number. Right. So once they requested I will go in manually and create a p number pre-approval number for them. Once they the p number has been approved, I'll assign it to the expert or investigator and then email them that number and they can begin their invoice. They can start their invoice.

00;11;40;15 - 00;12;02;09
Host
So the investigators can actually put in they put in their own claims in a cap once they get that p number. And then, for experts, we don't expect experts to learn this whole system, but the attorney has to approve their invoice. And then, and we have a form now for the attorneys to use, that they really can use it for the investigator so they don't give us it.

00;12;02;09 - 00;12;14;10
Host
They don't have to give us invoices. But now the experts have to give us the the invoice. And it still has to be a breakdown of the dates of service. That's not something we require. That's FNA’s requirement. Yes. Dates of service.

00;12;14;10 - 00;12;14;23
Laura Hood
Yes.

00;12;15;08 - 00;12;25;27
Host
And it has to be based on that hourly rate that was approved. And because we have to match all those things up, and then that invoice comes through and you have to review those two, don't you.

00;12;25;27 - 00;12;26;23
Laura Hood
Yes, I do.

00;12;26;23 - 00;12;28;11
Host
So talk about that process.

00;12;28;13 - 00;13;05;01
Laura Hood
Just the process is, I'm looking for of course, number one, the approval number, which I'll already have. But then I need the dates, as you said, the dates, a brief description of their activity along with their rate of pay. And I'm looking at when the order was approved by you, the Lead Counsel. And we're just we need to make sure that they did not start prior to getting, AOC approval.

00;13;05;04 - 00;13;07;17
Laura Hood
So that's one of the main things I'm looking for.

00;13;07;22 - 00;13;34;04
Host
Yeah. And you said me, but we do have Gene Geuree in the Legal Division who helps me out a great deal. And prior to that, Laura Blount was also helping us out. So, but they help me and, and so I appreciate Gene's assistance. So because of this manual process and having to create the claims and how everything goes through, we we're not able to stay within a 30 day target for the most time on these experts and investigators.

00;13;34;04 - 00;13;39;09
Host
It's about 45 days. Has to be the goal once we get the claims filed. Is that right?

00;13;39;12 - 00;13;44;03
Laura Hood
Yes, but I'm really working hard on getting to that 35 day mark.

00;13;44;05 - 00;13;59;15
Host
And I have to point out for everybody so that they understand that you're the only person who does experts and investigators. It's, first of all, it kind of has a specialty to it. It does involve a couple of other people. So one person going on vacation or getting sick, it can throw us behind a little bit.

00;13;59;16 - 00;14;14;18
Host
We have to get caught up. So we work on those targets. And I appreciate you trying to get it to 30 days. But we our target goal is 45. If we're less than that it's great. And sometimes we we might get a little behind. It might go over 45, but we work hard to keep it right around there.

00;14;14;21 - 00;14;35;17
Host
Let me just ask you if, for reasons that you have seen, claims returned or invoices returned, what do you think are some of the things that you would tell experts and investigators or the attorneys who who hire them? What are some of the things you see that come up as problems sometimes in this area.

00;14;35;19 - 00;15;06;09
Laura Hood
In that area a lot. What I'm seeing is missing the attorney approval. So when you submit an invoice, you must submit it to your attorney for their review. And they can do that by filling out a form that we have that you have created, Joe, here at the AOC. Or they can even sign the invoice, you know, with their signature and date it, stating they approve the expert's invoice.

00;15;06;13 - 00;15;24;08
Host
Let me just add that's just that requirement for us to do that is because we have the FNA, and the Comptroller's Office will need us to verify that someone's looked at that invoice and approved it. We don't know. We're processing. We don't know what that that, investigator expert did. The attorney is supposed to know what they did.

00;15;24;26 - 00;15;52;22
Laura Hood
Correct. Correct. So that is one thing that I'm seeing. Another thing that, that I'm having, I'll have to return invoices or just contact the, the expert are receipts. All receipts must be attached when submitting your invoices, such as hotel or any kind of, people searches, any medical billing that was incurred during the the services of the expert.

00;15;52;27 - 00;16;20;06
Host
Let me just say on that. We talked in another podcast with Kendall and with Alyssa, and we talked a little bit about the fact that the attorneys don't have to redact the orders that they submit to us. But now on those invoices, particularly like medical records and the invoices, the background checks, they usually have, Social Security numbers, EIN numbers, all of that must be redacted and it will get kicked back to us.

00;16;20;06 - 00;16;21;00
Laura Hood
Absolutely.

00;16;21;00 - 00;16;41;15
Host
And that slows the claim down a lot. So if you want to get paid faster and better timing it help us to help you by making sure you redact that personal identification. But it's not out of the orders, it's out of the receipts. And those are all of those documents that are outside of the orders.

00;16;41;20 - 00;16;58;05
Laura Hood
Correct. That's correct. And and we do see a lot of that in the experts invoices that are submitted. But I go in in there and redact if they've missed the EIN number or a check that was attached if they do not redact the account number.

00;16;58;11 - 00;16;58;20
Host
Yeah.

00;16;58;20 - 00;17;00;18
Laura Hood
So we'll go in and redact.

00;17;00;22 - 00;17;06;10
Host
Try to redacted. So what other things do you see that you have to return claims or invoices for?

00;17;06;12 - 00;17;34;21
Laura Hood
Well, one thing I do see, Joe, is when they have depleted all their funds. But with with that being said, there's still funds available, but only an incremental amount was approved. So now they need to contact the office via email so the additional funds can be released. And I've noticed that a lot of times they don't do that until after the invoice has been submitted.

00;17;34;24 - 00;17;56;05
Host
Yeah. In fact, section five makes pretty clear that before an expert or investigator supposed to start, they're supposed to have the AOCs approval. So if we only give that incremental approval, it's important that somebody on the team between the lawyer, the expert, the investigator is watching how much they have racked up and if they need to get that approval.

00;17;56;08 - 00;18;12;01
Host
It's a simple thing. Just email us the I ask everybody to always email us the the order that has our approval on it. So it's easy for us to find and just tell us that the funds are depleted. And then just go ahead and just tell us that you need the the rest of the money depleted. Now, let me ask you this.

00;18;12;05 - 00;18;27;00
Host
What if so an order goes down that's $10,000. We initially approve it for 5000. They send us the email and now they now they have gone through the second 5000. So they blown through all 10,000 is that it is at the end of the trail for them?

00;18;27;02 - 00;18;36;23
Laura Hood
Not necessarily. They can have the attorney submit another order requesting more funds to, you know, to be approved.

00;18;36;23 - 00;19;10;08
Host
Right. And inside baseball for us, we call that additional funds additional in order for additional funds. And so go back to the court. If the court approves it and gives additional funds, we'll go back through and and we'll we'll give the approval and kind of load back up that amount into what they can draw down from. I have something I want to mention to you, Laura, I have seen some attorneys, particularly recently, where in a criminal case there can be different, different indictments, there can be different charges, but they're typically, informally consolidated.

00;19;10;12 - 00;19;33;02
Host
And so they're heard at the same proceeding. And usually there's a global plea if there's going to be a plea agreement or they're often tried. Now sometimes there's there are the occasions where there are separate tracks. But we've seen some experts and investigators see their attorneys getting separate orders for every single case number. So we'll get three. And over here is the charge for, domestic assault.

00;19;33;02 - 00;19;48;11
Host
And then over here's the the stalking charge and, you know, or, you know, the robbery charge or whatever. And they think that they're getting more money, I think that way, but they're not getting more money. They're actually kind of creating a headache for themselves, aren't they?

00;19;48;18 - 00;20;16;19
Laura Hood
Yes. Because each one would have to be entered individually. And you have three different orders, three different case numbers. That's three different pre approvals numbers, the p numbers. So not only is it causing more work for them it's slowing the indigent, my area, it's going to slow it down because I'm having to create three individual case numbers.

00;20;16;19 - 00;20;36;07
Host
Yet they're and they're not getting any more money. No. If they go in and get one order, I don't even if they if the court approves it at 15,000, sure, we might only give an incremental approval for a portion of that, but they still are approved for all the way up to that 15,000. The the expert investigator is not going to be able to stack all those orders up.

00;20;36;07 - 00;20;57;18
Host
And then they have to be careful in their invoicing. They can't just bleed over those. So it unless there's two separate tracks of proceedings against the one defendant, all of those things should be consolidated into the same order. Will will release those funds incrementally and then they can get additional funds. It's not getting them any more, any less money.

00;20;57;18 - 00;21;07;18
Host
It is creating more work for them. And it's really slowing down their process because we have to make sure that we're tracking everything on each case number and everything. Am I right on that?

00;21;07;18 - 00;21;09;07
Laura Hood
You are absolutely right.

00;21;09;09 - 00;21;25;06
Host
I've been trying to send emails out to attorneys when I see that happening saying, please, no, and it's not the attorneys. I think some of the investigators somehow this this got started with some and they they because I've, I've tried to I've had to talk to them a few of them to say no, that's not the way it works.

00;21;25;06 - 00;21;42;08
Host
They thought they had to have a separate order for each case number in each charge. And no, if they put all the case numbers on the same order, it's the same proceeding. Now, if it's a separate proceeding, two separate courts, obviously, those are two separate things altogether. But if it's in the same proceeding, it's all the same hearing.

00;21;42;08 - 00;21;59;28
Host
It's all going to be the same trials. All going to be the same, you know, global plea. Then just keep it in one order is the best thing to do. Anything else you can think of that you might would advise a, experts, our investigators or the attorneys who get them and engage them for their, for their work.

00;22;00;03 - 00;22;27;08
Laura Hood
One suggestion is always submit an invoice. That's a legible invoice, but always include, like I've said prior, your dates, your hours, a brief description, all your receipts. You're approvals. When you submit an invoice with all your, t's crossing your eyes dotted, it makes just the process go so much smoother. And I'm not having to return.

00;22;27;10 - 00;22;39;29
Laura Hood
Send emails or to the attorney or to the expert. And I also never start working on on a case unless you have a copy of the approved order that's been approved by the agency.

00;22;39;29 - 00;23;00;23
Host
I would tell every investigator and expert, do not start until you see a copy that not only has the judge's signature, but mine or Gene Geurre’s signature approved on it. Then start work. Because getting it, fix it. Fixing that is not not something that we will always do all the time. And they need to know that, that that's the requirement.

00;23;00;23 - 00;23;21;22
Host
They're not supposed to start work until they get that order from the AOC. So, that's it. That's good advice. I think that you've given and and I also think that, you know, exactly what you said. Sometimes I think people think because we return things that we get some kind of enjoyment out of returning things. They have no idea we want.

00;23;21;29 - 00;23;29;08
Host
We want it all to be right, to just get it off our desk and to just move it on. So we're as frustrated that we have to return it as they aren’t we?

00;23;29;08 - 00;23;30;16
Laura Hood
Absolutely.

00;23;30;24 - 00;23;51;17
Host
Yeah. We want to get that. We want to get things through the queue. We want to make our targets, our goals. We want them to get paid on time. You know, for me, selfishly, I was just talking to Allysa and Kendall, and I said, you know, y'all's queues are always full. They're never empty. I since my when I do the complex and extended reviews, my queue will get empty because I do them once a week.

00;23;51;17 - 00;24;07;15
Host
And, you know, I probably do about seven a week. And so I can I can kind of go through mine pretty quickly because I'm not doing the detailed review. You all do and that they do. But I don't know how you live with always having the, the, the queue for because I want the queue empty, I want it done.

00;24;07;15 - 00;24;22;25
Host
And I want to say, okay, now my mind is clear and I can move on to the next thing, but when we return them, then they have to come back and they get recycled and recirculated, and sometimes it starts the process over. Well, any last words, Laura, that you would want to tell the attorneys? The experts or investigators.

00;24;22;29 - 00;24;35;07
Laura Hood
What I'd like to say is back to the orders. If you don't have a copy of that approved order by the AOC, call me or email me and I'll be glad to email you a copy and you can get started.

00;24;35;08 - 00;24;50;00
Host
Well, let me just as the last word in this podcast say, Laura, if there's an order, you can find it. There are times that I look in our systems to find an order, and I never find it. And I turn to you and you're always able to seem to find it for me. So I appreciate your your help all the time.

00;24;50;02 - 00;24;50;25
Laura Hood
You're welcome.

00;24;51;00 - 00;24;54;03
Host
So thank you for being on this podcast for us this week.

00;24;54;10 - 00;24;55;14
Laura Hood
Thank you Joe.

00;24;55;16 - 00;25;02;11
Host
For more information, check out the Indigent Representation web page at tncourts.gov.