ABSTRACT

Indigent appellate attorneys experience high stress due to their unique roles and responsibilities. Very little scientific research examines the lives and experiences of attorneys in the workplace. Characterizing and describing the variety of complexities and challenges Utah appellate attorneys face within their work provides information towards filling the profession’s gaps, stressors, and occupational needs. A sample of five Utah appellate attorneys were interviewed to better understand their perspectives and experiences in the workplace. We used thematic analysis to identify themes related to Utah appellate attorney experiences and perspectives. We identified four major themes from the data, including Personal approach, Working with clients, the 23B motion, and Waiting. Indigent appellate attorneys need well-established and enforced caseload standards. Further research is needed to develop adequate caseload standards and lessen the burden and stressors for appellate attorneys.

Keywords: Appellate attorney, indigent, law, experiences, Utah

Although attorneys experience high-stress occupational environments (Krill et al., 2016), very little scientific research examines the lives and experiences of attorneys in the workplace. Given the significant lack of indigent attorneys across the United States, deepening the knowledge regarding the experiences and perceptions of attorneys is crucial to filling the profession’s gaps. Characterizing and describing the variety of complexities and challenges Utah appellate attorneys face within their work is the central goal of this paper and is necessary for expanding the knowledge and understanding of the appellate attorney’s stressors and occupational needs.

Utah Appellate Procedure

Utah appellate cases follow a similar procedure, although each case follows its timeline. Generally, Utah appellate cases begin with the initiation and filing of an appeal within the correct subject matter jurisdiction, assuming the case in question is appealable under Utah law (Wilkins et al., 2000). After the filing of an appeal, a docketing statement is typically required from the appellant or petitioner with the appellate court clerk, followed by the preparation and transmission of the record by the trial court clerk to the appellant. The most important part of the appeal process, the appellate brief, is required within forty days of the notice of appeal. The appellee may respond with a brief of their own within thirty days of the submission of the appellate brief, and the appellant then has an additional thirty days to respond to the appellee’s brief. This process is often followed by oral argument, which is scheduled by the court clerk based on case priority. Oral arguments consist of brief presentations of each side’s case in front of the appellate court judge. Once oral argument is completed or a case is submitted without oral argument, the appellate court writes its decision for the case. A 14-day time period is permitted in which a party can file a petition for rehearing. If need be, a petition for a writ of certiorari may be submitted to the Utah Supreme Court, however a review of a case submitted to the Utah Supreme Court are completed with judicial discretion. This overview presents the general steps required within appellate law; however additional steps may play a role in the appeal process depending on the specifics of each individual case. These may include a stay or injunction pending appeal or a motion for summary disposition, among others (Wilkins et al., 2000).

Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution guarantees effective assistance of counsel to criminal defendants, creating the existence of indigent defense attorneys. The assessment of counsel effectiveness is necessary in determining if criminal defendants were provided with adequate counsel from their attorneys. Historically, the concept of ineffective assistance of counsel lacked sufficient specificity to be appropriately evaluated, in which “counsel’s efforts must have been so perfunctory as to render the trial a farce, a mockery of justice” (Finer, 1973, p. 1078). As a result, few defendants were determined to have had ineffective assistance of counsel. However, the 1984 case Strickland v. Washington established the standard of effective assistance of counsel (Strickland v. Washington, 1984). The case outlined a two-pronged approach: first, that the defense counsel’s performance in court failed to meet an objective, and second, that there is evidence that errors by the defense counsel were prejudicial (Strickland v. Washington, 1984). Given that ineffective assistance of counsel can only be determined after a case’s completion, the concept is often discussed during appellate proceedings. However, some lawyers suggest that ineffective assistance of counsel arguments are not successful due to hindsight bias and inevitability from the perspectives of judges who oversee these cases (Bibas, 2004). Hindsight bias refers to instances in which people believe something is more predictable once it become known rather than before it was known (Roese & Vohs, 2012). This may lead judges to feel that a given outcome was inevitable.

Ineffective assistance of counsel is handled differently across different states. For example, under Utah Rules of Appellate Procedure Rule 23B, a claim of ineffective assistance of counsel “may move the court to remand the case to the trial court for entry of a finding of fact” (URAP Rule 23B - Utah Courts, n.d.). Referred to solely as Rule 23B, this Utah-specific appellate rule has the potential to lengthen any appellate case if there is evidence that the previous attorney was ineffective and deficient through alleging facts that do not appear within the record on appeal.

Risk of Burnout within Appellate Law

As a result of the high-stress occupational environment experienced by attorneys (Krill et al., 2016), appellate law attorneys are at an increased risk of experiencing professional burnout. Although no research to our knowledge compares rates of burnout across professions, the negative impact of occupational stress on indigent defense attorneys (Dotson et al., 2019) and public defenders (Lynch, 1997) have been discussed for a significant length of time. Deeply examined within the psychology literature, professional burnout refers to a state of exhaustion due to chronic exposure to vulnerable or suffering populations (Pines & Aronson, 1988). Burnout includes emotional exhaustion, depersonalization or cynicism, and a reduced sense of personal accomplishment (Newell & Macneil, 2010). In addition, individuals with burnout may experience depressive symptoms and substance use (Kahill, 1988). These are two issues commonly experienced within the law profession; in a survey of 12,825 licensed and employed lawyers, over 20% screened positive for potentially alcohol-dependent drinking and 28% experienced symptoms of depression (Krill et al., 2016). Professional burnout is also strongly linked to turnover, wherein an individual leaves their profession (Kahill, 1988).  

Risk factors for developing burnout include organizational factors, such as high caseloads, lack of control over policies, and unfairness in organizational structure or discipline (Newell & Macneil, 2010). Additionally, organizational behaviors, such as chronic absenteeism or low rates of completing professional duties, are warning signs for burnout. As risks factors of burnout among professionals include a lack of control over policies and high caseloads, the creation of caseload standards may prevent burnout for some appellate lawyers both by decreasing caseload sizes and increasing the individuals’ control over their work.

Appellate Law Caseload Standards

Caseload standards for public defenders are an important component of legal ethics, as the right to the assistance of counsel includes “reasonably effective assistance” (Strickland v. Washington, 1984). Without reasonable caseload standards, indigent defense attorneys are likely to become overworked, leading to a lower quality of practice. In fact, recent research suggests this is the case; a RAND report last year found that many states displayed excessive caseloads for public defenders (Pace et al., 2023).

Over the last several years, multiple states have begun evaluating the caseload standards of indigent defense attorneys. In 2013, the state of Texas passed House Bill 1318, requiring the Texas Indigent Defense Commission (TIDC) to complete and publish an evaluation to determine guidelines for the maximum acceptable caseload for criminal defense attorneys to ensure effective representation to indigent defendants (TX HB1318 | 83rd Legislature, 2013). Through quantitative and qualitative methods, the subsequent evaluation created caseload guidelines based on trial rates within Texas during fiscal year 2014 (Carmichael et al., 2015). The findings from the evaluation suggested that significantly more time was needed for cases at all levels of offense and for non-attorney investigators in addition to the increased time allocated for attorneys themselves. However, as there are wide varieties in legal practices based on differing state-level methods and laws, caseload standards cannot be generalized to indigent defense attorneys across other states.

Since the passing of Texas House Bill 1318 several other states have evaluated caseload standards for indigent attorneys, including New Mexico, Oregon, and Utah. During a similar analysis in New Mexico, it was determined that the state had a 67% deficiency in public defense attorneys and that New Mexico was in need of an additional 602 full-time public defenders for fully effective assistance of counsel (The New Mexico Project, 2022). Similarly, within the state of Oregon there was a 69% deficiency in public defense attorneys, with Oregon was in need of an additional 1,296 full-time public defenders for fully effective assistance of counsel (The Oregon Project, 2022). The pattern of results displays a significant need for additional full-time attorneys throughout the country. As experiences of attorneys within each state are not generalizable, the development of an in-depth understanding of the complexities, challenges, and workflow processes attorneys in each state experience on a daily basis may aid in the identification of policies that can fill the need for public defenders within those individual states.

In Utah, a recent study developed caseload standards for appellate attorneys based on administrative records, interviews with indigent appellate attorneys, a national expert panel, and peer review (Author, 2023). Similar to Texas, New Mexico, and Oregon, the report found that Utah’s indigent appellate attorneys were carrying a caseload that far surpassed occupational standards, with some caseloads twice the established standards (Author, 2023). However, some Utah-specific findings displayed differences across states due to variability in legal proceedings; within the case standards recommendations report’s quantitative data, 9% of Utah appellate cases examined included the Utah-specific filing of a 23B motion which has the potential to greatly increase the time attorneys spend on an individual case Author, 2023). Still, more research regarding the day-to-day experiences of indigent appellate attorneys is needed to understand the complexities and challenges that appellate lawyers experience.

In summary, there is very little research regarding the occupation of appellate attorneys. Many factors, including the appellate procedure, state-level policies, burnout and caseload standards may influence appellate attorneys’ experiences within their profession. More research is needed to examine how these factors play a role in the occupation. To fill this research gap, the purpose of this study was to deepen our understanding of the factors related to indigent appellate attorney practice that adds complexity to their occupational experiences and workflow within Utah’s appellate circuit.

Method

A qualitative approach was used to explore and better understand the experiences and perspectives of Utah appellate attorneys. Semi-structured interviews were used to collect information and to allow further details and insights to emerge about this topic that is only somewhat understood (Wilson, 2014). Institutional Review Board (IRB) approval from the University of Utah was obtained in February 2023, before recruitment and interview procedures.

Participants

The eligible participants were indigent appellate attorneys in Utah. Because we were interested in diverse experiences and perspectives, the participants came from multiple agencies and backgrounds and served various areas across Utah. Convenience sampling allows for researchers to select participants based on their willingness and availability to participate in a research study (Andrade, 2021). Convenience sampling was used in this research study to identify participants, which resulted in nine Utah appellate attorneys being interviewed. Of the nine participants, five interviews (N = 5) were randomly selected and coded. The research team concluded that saturation had been reached with the five randomly selected interviews.

The research team obtained a list of stakeholders (attorneys on the Utah Appellate Roster) from program staff and the research team emailed those individuals to explain the study further, determine interest in participation, and set up interviews with interested individuals. During this initial conversation, stakeholders were informed that their participation was voluntary and that their participation or non-participation in the study would be kept confidential. The participants received a $100 gift card for their involvement in an interview.

The first author (WH) conducted in-depth interviews between July and October 2022. Interviews were audio-recorded for transcription and averaged approximately 45 minutes. Confidentiality of the participants was ensured by conducting interviews in a private setting, using pseudonyms, and storing transcripts on password-protected computers, only accessible to the research team. The purpose of the study and the option to withdraw at any time were explained before starting the interview.

The interview questions were designed to gain insight into the experiences and perspectives of Utah indigent appellate attorneys. Some guiding questions used in the interviews included: “Can you describe a typical case?”; “Describe the elements of a case that are most time-consuming.”; “Can you explain what elements of a case are most difficult to accomplish?”; and “Are there notable cases that you had where you did not have sufficient time? What were the features/elements of that case that was most limiting?”. The interviewer encouraged each participant to share their experiences and perspectives openly, expanding beyond the interview guide if necessary. The semi-structured interview guide can be located in Appendix A.

Data Analysis Plan

The responses were transcribed verbatim for thematic analysis using NVivo auto transcription services (Version 13, 2020 R1; Lumivero, 2018). Thematic analysis (Braun & Clarke, 2022) was utilized to identify themes related to Utah indigent appellate attorney experiences and perspectives. First, transcripts were evaluated and checked against audio recordings to ensure that any transcription errors were corrected. Second, two authors (WH & SK) coded line-by-line and identified initial codes. Any disagreements between coders were resolved by further discussion. Third, codes were grouped as potential themes. Finally, themes and subthemes were defined and supported with participant quotes.

Results

Five attorney interviews were analyzed to understand better Utah indigent appellate attorneys’ experiences and perspectives. The thematic analysis identified four primary themes. The four major themes from the data include Personal approach, Working with clients, the 23B motion, and Waiting.

Each respondent has a code, which can be used to connect their quotes across all themes without divulging their identity. For example, Respondent 1 is labeled R1, and their comments can be seen across three of the four themes.

Theme 1: Personal Approach

The first theme that arose from the attorney interviews was the personal approaches and practices applied to appellate cases. The attorneys shared how they undertake an appellate case, including individual strengths and weaknesses. The various approaches across the participants highlight an individual-level complexity that may impact an attorney’s experience within the position.

And I'm always sort of frustrated by the amount of time that I don't get to do that and how frequently that work happens at night or on the weekend. And again, I don't blame the system or my office or anything like that. I think a lot of that comes down to my personal preferences and my peculiarities. (P1)

You sort of reading everything and soaking it in and sort of making notes about stuff you want to go back to and issues that might be interesting, but it doesn't take a whole lot of, like, really intense focused effort, you know, that all sort of comes later when you start digging into the issues that you're really going to think, you think you're going to be important and you get it at like the hardcore research and start drafting the briefs and stuff, that's the more intense part that happens later. (P2)

So, I think, I'm sure there's probably a big, longer list of appellate issues, I should probably start getting that list in front of me. I think it's probably good practice and just go down and check boxes as to whether this appellate issue’s there, this appellate issue’s there. (P3)

And you kind of start to get in a flow, at least I do, because I make lists every single day of here's what I, here's what I need to get done today like here's what's on my desk that I'm going to try to get off my desk or move toward my desk. (P4)

And I think that it's just because of my personal work habits, right? Like I realized, like, I was getting ready to fall behind because I liked doing hand-written notes and I was like, I just can't do this anymore. (P4)

I also listen to oral arguments that are on a similar topic so I can see what the judges have asked. That is part of oral argument preparation. And and and if I'm not familiar with the judges and when I listen to oral arguments where on the bench just so I can see what they're like, what questions they ask in oral argument, what's most important to them? So, listening to oral arguments of other attorneys? Even outside the appellate team, right? (P5)

As the appellate attorneys shared their individualized approach, their strengths concerning how they presented the cases for the interview began to emerge. Strengths described by individual attorneys varied greatly, and the participants demonstrated self-awareness regarding the aspects of an appeal that are easier for them and the aspects that personally take more time and effort.

And then writing the appeal, I feel like I'm a little bit faster at that than a lot of other people, like once I, because once I do so much background that once it's time to write it really is like, it kind of just flows. (P4)

And I will also practice (oral argument) with family members, and you want to get to the point where the family members who are laypeople and don’t understand the law, understand your arguments because that means you're explaining them well. So, there's that practice. Plus, I just want to rehearse my answers so that they come like almost second nature for me. (P5)

In addition to personal strengths, attorneys shared personal weaknesses when approaching an appellate case. Similar to the personal strengths, the weaknesses shared varied based on the individual’s perspectives and experiences. Additionally, one participant shared other considerations and responsibilities that attorneys do outside of appeals that should be considered when exploring life experiences.

I also just think it's like some people are really good at buckling down and getting stuff done. And I don't feel like I'm one of those people. (P1)

It's worth noting that in addition to my official responsibilities with appeals, I also have like lots of other things that I do. And that probably should be accounted for. I guess what I mean is like if, if, if the study was just, what does a full-time public defender doing appeals have to do, I'm not going to be as efficient as it probably should be because of those other considerations. (P1)

And then there's the part, which is this sort of really mentally intense, it's the most tiring, sort of the hardest to get done, and that's the research and the actual writing. I found that I didn't want to do that for like half a day, four or five hours a day before it's just like, I'm not really making much progress. (P2)

In my experience, that's been the most difficult, just the writing aspect. I mean, physically, it's taxing, I have a neuropathy, so typing. I'm starting to master more and more dictation. So, I just caught a typo the other day, where I dictated something, and, you know, the word is close, but not quite. And then of course, it was after I submitted it that I caught it. (P3)

Oral argument preparation, I think in particular, is really hard because it probably takes, I allow myself one week to like to prepare where all I work on that week is preparing for oral argument, and I kind of hate it because I realize I don't have anything tangible to show for my work at the end of the day, right? Because I'm not drafting anything, I have like an outline. I have like my notes, so I sort of reframe those things, but it's like one page that's getting refined as I, as I just say my argument over and over and try to pretend like I'm answering whatever questions they might have. So that's hard. (P4)

Theme 2: Working with Clients

Aside from the overall experiences of attorneys, challenging aspects of a case were also explored. Some appellate attorneys expressed the difficulties of working with the client throughout a case.

I feel like I'm not, umm good at utilizing the time that I am given. I feel like I get distracted on, you know, on other issues and I maybe spend too much time coddling my clients or making them feel good when I should just say, shut up and let me do my job. (P1)

There's an X-Factor that can really affect, I think, how much time and energy and just general sort of stress a case, a given appellate case will be for you, you know? For me, I guess, for an appellate attorney and that's just the client, the client themselves. (P2)

You know, your client is especially difficult for one reason or another, and it's hard to, it’s something that would be hard to account for, I think, in sort of the numbers and the caseloads of something that makes to me anyway, it makes a huge difference. (P2)

So, working with difficult clients can be something that makes it harder. (P5)

Participants shared a variation in the communication between themselves and clients. Varying types of communication include emails to clients, telephone correspondence, letters, and in-person interactions. Additionally, the frequency of client communication via the methods mentioned earlier is described below.

I mean, I would guess, like meeting with clients for the average case is probably going to be two to three hours of either in-person or on the phone consultation. I mean, usually the first meeting with a client is about an hour. Just to introduce yourself, explain the process and answer their questions. That's usually about an hour. And I and my preference and what I've tried to set as the standard here is that we do that in person for every client. (P1)

After that, most of the communication will be through the letter or through phone calls. Unless something really specific comes up, you know, if we're going to have them write or sign a 23B affidavit, then you know, we will have prepared on the phone and then I'll go to the prison to, you know, finalize the details. (P1)

I also then want to interact with the client to make sure the client's okay with me representing them on this appeal. And usually, that's pretty straightforward. Sometimes I will say tracking down my clients. It can be a challenge because, you know, they're just, unsheltered or, you know, other issues going on. (P3)

So, but, you know, typical, typical case, I probably talk to my clients, meet with him face to face anywhere between, you know, 20 minutes and an hour. And, and then I just try to be available like, I'm more available. (P4)

Participants shared insight into eliciting perspectives and opinions from their clients regarding their case, including minimal eliciting of the client’s perspectives and opinions. Clients were provided education regarding the appeals process to aid the client in making an informed decision. Interviewees also reported being welcoming of their client’s concerns and suggestions concerning their case.

Because when they talk about wanting an appeal, they don't very often know what that means and when they're informed about what that means, you know, sometimes they won't want to file an appeal. I was I was at the prison yesterday consulting with someone who had written a letter asking for an appeal. And after he found out what that meant, he said that’s, I don't want that. Absolutely not. That's not what I'm interested in and wants this other thing. (P1)

But if there is a sort of a way that we can do it in good faith and do our best on an argument, we will do it if the client wants to. (P2)

They're (clients) just very difficult to reach and make contact with, which can be good in a way, that makes it easy because they've all said, ‘I want to appeal,’ and that's all the input they ever have on the case. (P3)

One of the things could be working with the client, if they have really strong opinions about what they want to put in the appellate brief. And sometimes those aren't the kind of questions that you can appeal. (P5)

Theme 3: 23B Motion

A 23B motion is unique to Utah. It is a motion that claims ineffective assistance of counsel (Utah Courts, 2022). The state-level factor impacts a case’s complexity and, therefore, the experiences. Interviewees provided insight into how their experiences have been impacted, including more time spent on a case, more challenging cases, and ultimately increased implications.

…other things that very often end up complicating things are the litigation of ineffective assistance of counsel through 23B process. That can take on a whole, its own world. (P1)

The one, the complicating factor in appeals is that Utah has a special rule of appellate procedure where if you think there's a certain kind of issue something called ineffective assistance of counsel, there’s this procedure where you can actually try to take the case back into the trial court so that you can put on new evidence about, well, what could the original counsel have done better? (P2)

And it's like so those cases, like a 23B case, is essentially two cases in one. (P4)

So, 23B’s, the research for those is really extensive. So that takes a long time. And then getting ready for the district court takes a long time and waiting for the court of appeals to make decisions and for the state to argue what they want to argue. So yeah, they're, 23B’s add a lot more work to make a case. (P5)

23B motions are really trickyand difficult. (P5)

Theme 4: Waiting

Many participants detailed their experiences with the “waiting periods” that occur within stages of a case. For example, an appellate attorney submits a brief to the court and then must wait for the state’s reply brief to be submitted before anything further can be done. Furthermore, depending on the case stage and what is required from different entities, waiting periods are varied. Several participants stated that these waiting periods impacted their workflow on other cases, leading to a rotation of working on a case until a waiting period occurs and working on other cases during said waiting periods.

So yeah, there's sort of this long kind of holding pattern when you get assigned a case, but then at some point, you know, you get there, you get the record, you start going through it. (P2)

So that process is pretty slow because they have to request transcripts and they get the audio from the court and that goes to a transcriptionist and that usually takes a quite a while to finish the transcripts. So, there's this process of waiting early on. You say, ‘I’ll take the case.’ But it usually is not much for you to do on it initially because it takes a while to get what we call the record. (P3)

Right, right now, I have no, I mean, I'm just waiting and waiting for the state to reply to a brief. So, I have nothing that's weighing on me right now appeal-wise. (P3)

And then there's another big chunk of waiting for the decision to come out, and it's anywhere between like three months and like a year, sometimes when the decision comes out. (P4)

And so, I sort of describe, right, there's big chunks of time where you're waiting, right? And so, I feel like every appeal is like you break it up into the first two chunks or like you do that record review and you write that opening brief and then you can move that off of your desk and then you do it on the next one. And in the meantime, they're waiting for the state. So, it's like, I'm just in a constant state of like what work is on my desk and shifting it off until it's for somebody else's job to do whatever they need to do. (P4)

So, we're waiting for the opinion, and it's another one where I had to correct the record. And so that took a while. (P5)

Participants shared insight into how waiting impacted the time it took them to refamiliarize themselves with existing cases. The more time spent waiting, the longer it would take to refamiliarize oneself with an existing case.

So, I probably take an hour or two to read my brief, but then it depends on like what their response is. And if they're saying things that I'm like, ‘Where did this come from?’ And then I have to go check to make sure they're not misrepresenting what the record said. (P4)

So, first of all, you have to get familiar with the facts of the case and the law that you argued again, because you've been working on all these other cases in between and so that case is gone from your mind. Right. So that takes a little bit of time. (P5)

Discussion

Results show that attorneys had significant concerns regarding the time it takes to successfully appeal a case. As an indigent appeals attorney, much like public defenders, there seemed to be a significant case burden. While all agreed that there is a fundamental right to an appeal, it is difficult to maintain balance given the extensive caseloads they carried. This is exacerbated by the fact that many were in private practice as well, meaning they were juggling multiple case types and different client expectations.

Individualistic Approaches

As each attorney approached the work associated with an appellate case slightly differently, and attorneys have individual strengths and weaknesses within the work, individual level attorney factors interacted with each piece of appellate case work. For example, some attorneys indicated that they spent a significant amount of time on preparation, while others focused on the steps necessary to keep up with the workload more generally. These individual approaches yielded individual strengths and weaknesses. Some found that they were able to accomplish critical tasks, such as writing the appeal, more easily because they committed so much time to preparation. On the other hand, focused preparation time may contribute to a longer case. Taking extensive notes, writing a thorough argument, and spending time practicing oral arguments requires more time, which may take away from other tasks. The result is that, while attorneys wanted to do their best, time is a pressing issue that contributed to their workflow.

This was further impacted by the nature of the appeals process. Often times attorneys submitted all the requisite paperwork only to have a case repeatedly delayed or scheduled months away. This meant that much of the work had to be revisited several weeks, if not months after submission. Refamiliarizing themselves with the case once again impacted the time they spent working on an individual case, at the cost of other work tasks.

The “X-Factor”

Many attorneys expressed frustration when working with their clients. Client behavior can be unpredictable, and some clients consumed a great deal of time. While this is not unique to appellate law, the strict time requirements, extensive preparation, and excessive caseloads made “difficult” clients even more “difficult” than they might have been at the trial level. Client engagement, while necessary, can be distracting especially for those carrying heavier caseloads. The individualistic nature of each attorney’s process meant some spent 20 minutes or less with a client while others spent 3 or more hours. These estimates do not account for the X-Factor – clients who are unpredictable and in need of more time from their attorney.

Many times, clients lacked the awareness of the appeals process, eliciting appeals based off of a preconceived notion that was largely informed by fiction or the media. A good faith effort was expressed by each attorney in explaining how the appeals process works, and in some instances, clients realized the complexity and time required to go through the appeals process. While some clients were constantly in contact with their attorney, in many cases needlessly so, others were difficult to reach. This required that attorneys commit a considerable amount of time to simply trying to contact their clients.

23B

Utah law allows for appellate attorneys to file a 23B motion (Utah Courts, 2022), also known as ineffective assistance of counsel (IAC). A case that includes a 23B required even more time. The research required to support a 23B argument is extensive, with some adding that a 23B is almost a separate case unto itself, even though it is actually part of the overall appeal. To successfully argue a 23B required a thorough scrutiny of all evidence presented at trial, identifying evidence or legal action that was omitted by the trial attorney, and sufficient documentation, which is provided by the trial court and, in most cases, a private investigator. When successful, a 23B resulted in the case being remanded to the lower court for further consideration of facts not presented during the trial.

Attorneys expressed that the 23B added a significant amount of time to each case. In addition to preparing the appeal, attorneys had to pour over each record, including additional evidence that may be uncovered. The 23B impacted the case duration and further impacted the amount of time necessary to prepare for oral arguments. Simply put, attorneys had to review every bit of evidence from the trial record, in addition to situating new evidence of ineffective assistance of counsel into the appeal. Instead of a single waiting period where the case is considered, the time commitment was also impacted by the wait for the lower trial court record and any investigation that needed to be conducted.

Strengths, Limitations, & Implications

This study includes a number of strengths. First, it adds to the emerging research in this area. There is a push towards more rigorous evaluation of current caseloads, and implementation of fair standards. In addition, given the unique nature of IAC rules in Utah, we were able to identify specific challenges associated with preparing for and investigating potential IAC. Finally, the results of this study identified specific areas that can be targeted for caseload reform.

The findings of this study must be interpreted within the boundaries of its limitations. This study used convenience sampling. All attorneys interviewed handled cases within Utah’s metropolitan areas. Given the significant lack of attorneys serving rural clients, it is possible that the caseload for those individuals is even higher. Additionally, while a qualitative approach provides much nuance, caseload standards must be developed using quantitative measures, thus specific recommendations cannot be made based on these results alone. Finally, the results of this study are not generalizable to other states. Given the uniqueness of each state’s appellate process, matters discussed here should be used with caution in other states.

Conclusion

The importance of equal representation cannot be overstated. It is a critical element to the American justice system, and is among the founding principles laid out in the Constitution. Still, indigent representation across all criminal court systems is known to be sub-par. This is due in large part to the heavy case burden experienced by many public attorneys. This imbalance means that those able to afford a private attorney, who is likely to have a much lower caseload, means that income becomes a major factor in fair representation. That is, those with the resources required to hire a private attorney likely have stronger representation. On the other hand, indigent defense is a Constitutional guarantee, with no explicit limits on caseload - simply having an attorney is the only guarantee of legal representation.

It is clear that indigent appellate attorneys, like their trial court peers, need well established and enforced caseload standards. Given the extensive amount of work, potential IAC investigations, waiting, and re-preparation, appellate cases consume a considerable amount of time. State courts should be proactive by working with indigent appellate attorneys to find a balance between the need for appellate attorneys and the significant burden each case adds to attorney workload. This burden is exacerbated each time a new case is added, but with adequate standards, the amount of work can be lessened.

References

Andrade, C. (2021). The inconvenient truth about convenience and purposive samples. Indian Journal of Psychological Medicine, 43(1), 86–88.

Bibas, S. (2004). The psychology of hindsight and after-the-fact review of ineffective assistance of counsel. Utah Law Review, 2004(1), 1–12.

Carmichael, D., Clemens, A., Caspers, H., Marshbanks, M. P., & Wood, S. (2015). Guidelines for indigent defense caseloads: A report to the Texas Indigent Defense Commission. Public Policy Research Institute.

Dotson, E., Brody, D. C., & Lu, R. (2020). An exploratory study of occupational and secondary traumatic stress among a mid-sized public defenders’ office. The Journal of Law and Criminal Justice, 4(1).

Finer, J. J. (1973). Ineffective assistance of counsel. Cornell Law Review, 58(6), 1077.

Authors. (2023). Caseload recommendations for Utah indigent appellate attorneys: Report to the Utah Indigent Appellate Defense Division.

Kahill, S. (1988). Symptoms of professional burnout: A review of the empirical evidence. Canadian Psychology, 29(3), 284-297.

Krill, P. R., Johnson, R., & Albert, L. (2016). The prevalence of substance use and other mental health concerns among American attorneys. Journal of Addiction Medicine, 10(1), 46-52.

Lynch, D. R. (1997). The nature of occupational stress among public defenders. The Justice System Journal, 19(1), 17-35.

Newell, J. M., & Macneil, G. (2010). Professional burnout, vicarious trauma, secondary traumatic stress, and compassion fatigue. Best Practices in Mental Health, 6(2), 57-68.

Pace, N. M., Brink, M. N., Lee, C. G., Hanlon, S. F. National Public Defense Workload Study. RAND Corporation.

Pines, A., & Aronson, E. (1988). Career burnout: Causes and cures. New York, NY, US: Free Press.

Roese, N. J., & Vohs, K. D. (2012). Hindsight bias. Perspectives on Psychological Science, 7(5), 411-426.

Strickland v. Washington, 82-1554 (May 14, 1984).

The New Mexico project: An analysis of the New Mexico public defense system and attorney workload standards. (2022). Moss Adams LLP and the American Bar Association Standing Committee on Legal Aid and Indigent Defense.

The Oregon project: An analysis of the Oregon public defense system and attorney workload standards. (2022). Moss Adams LLP and the American Bar Association Standing Committee on Legal Aid and Indigent Defense.

URAP Rule 23B (Rules of Appellate Procedure)—Utah Courts. (n.d.).

Wilkins, M. J., Bertelsen, K. L., & Snow, M. (2000). A primer in Utah state appellate practice. Utah Law Review, 2000(1), 111–134.

Wilson, C. (2014). Semi-structured interviews. In Interview Techniques for UX Practitioners (pp. 23–41). Elsevier.

Appendix A

IADD ATTORNEY QUESTIONS

Interviewee Antonym

Location of Interview

Date & Time of Interview

1. Can you tell me a little bit about yourself? How long have you been an attorney? How long have you done criminal appeals?

2. Can you describe a “typical” case?

3. What kinds of cases take more time than you had anticipated? (atypical cases)

4. Describe elements of a case that are most time-consuming.

5. Can you explain what elements of a case are most difficult to accomplish?

6. Tell me about a time when a case required more of your time and energy than was expected? 7. Can you describe circumstances or cases that consume most of your time?

8. Are there notable cases that you had where you didn’t have sufficient time? What were the features/elements of that case that was most limiting?