"Complexities of appellate law: Experiences and perspectives of Utah indigent appellate attorneys" (by Whitney Howey, Stephanie Kathan, Jeremiah W. Jaggers & Chris Cambron): Review 3

Vote: Publish pending major revisions.

With significant revision, this paper has potential to make a contribution to the literature. It needs quite a bit of modification, however, before it can make a substantial contribution. One of the potential strengths of this paper is that it focuses on a subject that lacks focus in the legal literature: appellate lawyers. I have several suggestions that I would request the author to engage in before I would conclude that it is ready for publication in the Journal of Qualitative Criminal Justice & Criminology.

Since the purported focus of the article is on “indigent defense” appellate attorneys, the word “indigent” should be in the title of the paper.

The introduction is too brief. The author needs to provide more substance in the introduction before jumping immediately into “Utah Appellate Procedures.”

The brevity of the paper’s “Introduction” is replicated in several different sections of the paper, so this is a reoccurring theme of this peer review.

Under the heading “Utah Appellate Procedure,” there is a sentence that reads, “The process is often followed by oral argument, which is scheduled by the court clerk based on case priority.” The author says “the process is often followed…” meaning what? When does oral argument occur or when does it not occur? What does “case priority” mean? Who determines “case priority?”

In the next sentence at the bottom of page 2, the author’s sentence says, “Oral arguments consist of a brief presentations of each side’s case in front of the appellate court judge.” Shouldn’t this be “judges?” Aren’t appeals court oral arguments in front more than one judge?

On page 2, in the last sentence the author says, “A 14-day time period is permitted in which a party can file a petition for rehearing.” Is this “petition for rehearing” after the court decides the case or is it after the oral argument, but before the case is decided? Please clarify for readers.

At the bottom of page 2 and the top of page 3, the author says, “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.” Does the Utah Supreme Court, unlike the U.S. Supreme Court, have no original jurisdiction? While U.S. Supreme Court cases decided are almost all on discretionary review (the rule of four), there are a few situations where the U.S. Supreme Court has original jurisdiction. Please clarify for readers.

Peer Review, Journal of Qualitative Criminal Justice & Criminology, page 2

On page 3 under “Ineffective Assistance of Counsel,” toward the end of the first full paragraph, the author says, “Given that ineffective assistance of counsel can only be determined after a case’s completion, the concept is often discussed during appellate proceedings.” The author should clarify for readers whether the point the author is making applies to “right to appeal” proceedings or with “writs of habeas corpus” under state law? Or, is it both?

The last sentence of the first full paragraph on page 3, the author says, “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).” Here, the author needs a couple of more sentences to clarify the point. What does the author mean by “hindsight bias” and “inevitability from the perspectives of judges?”

Toward the bottom of page 3 under the heading, “Risk of Burnout within Appellate Law,” the author says, “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.” First, in this sentence, the author refers to the “high-stress occupational environment” of appellate attorneys. There are lots of “high-stress jobs”; is there evidence or previous research that shows appellate attorneys experience higher stress than other white-collar jobs, resulting in burnout? If not, say there are none. If yes, then cite them. Second, in this sentence the author refers to “professional burnout” and “high-stress jobs” using the citation of Krill et al. (2016). The Krill et al. (2016) cite deals with “substance abuse” and “other mental health concerns.” While this citation is appropriate for the “professional burnout” part of the sentence, the sentence has nothing to do with “substance abuse,” so I am not persuaded that this citation is correctly used here.

In the first full paragraph at the top of page 4, the author says, “As risks factor of burnout include lack of control over policies and high caseloads,…” This sentence is missing some words and/or needs to be rewritten.

On page 4 under the heading, “Appellate Law Caseload Standards,” in the second sentence the author says, “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…” While these Guidelines are a good start for Texas to shore up its indigent defense system, for the most part, the effort in Texas has been mostly “window dressing,” since there are no data to suggest that the quality of “indigent defense” (appellate or otherwise) representation in Texas has substantially improved (if I am mistaken, please cite studies showing indigent defense in Texas has improved). I am not asking the author to do anything here, but the point I am making is that the reality for indigent defense (appellate or otherwise) in Texas has not greatly improved. The author might further comment on Texas, or the other states mentioned (New Mexico and Oregon), including Utah if indigent defense has improved at the appellate level.

Peer Review, Journal of Qualitative Criminal Justice & Criminology, page 3

The discussion in the first two paragraphs on page 4 under the heading “Appellate Law Caseload Standards,” begs the question that indigent defense (trial or appellate) has been grossly inadequate throughout the U.S. for decades, notwithstanding the holding in Strickland v. Washington (1984) regarding ineffective assistance of counsel. Research shows that our indigent defense systems, state-by-state, have indigent lawyers that are overworked and under-appreciated. This paper needs to more strongly argue that there needs to be more research on indigent defense, especially in the appellate arena. The author needs to hammer this point home, especially in the “Conclusion” of the paper.

The last sentence to the first full paragraph on page 5, the author says, “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.” Given that “indigent appellate” practice is the focus of this paper, it is not appropriate that the word “indigent” does not appear anywhere in the paper again until page 11 under the heading “Discussion.” Readers are left to wonder why “indigent appellate defense” is not mentioned in the methods and findings sections of the paper. In fact, throughout the Method, Data Analysis Plan, Results, Theme 1: Personal Approach, Theme 2: Working with Clients, Theme 3: 23B Motion, and Theme 4: Waiting sections, the word “indigent” is not mentioned. In fact, the paper goes on for so long without mentioning the word “indigent” that the reader could possibly forget that the focus of the paper is on indigent appellate attorneys. This obviously needs to be rectified.

On page 5 in the “Method” section, the author says, “Semi-structured interviews were used to collect information.” How these interviews were conducted needs elaboration. An in-depth discussion of how the interviews proceeded needs to be described.

In the next sentence on page 5 in the “Method” section, the author says, “Institutional review board approval was obtained before recruitment and interview procedures.” Something is missing at the end of this sentence; the sentence needs to be rewritten.

On page 5 under the heading “Participants,” the author says, “The eligible participants were 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 was used to identify participants, which included five Utah appellate attorneys.” Again, nothing in this statement says anything about “indigent” defense. That ought to be mentioned in this paragraph.

On page 5 under the heading “Participants,” in the third full paragraph the author says, “Confidentiality and anonymity of the participants were ensured by conducting interviews in a private setting.” Only “confidentiality” was “ensured” since whoever did the interviews knows the identity of the interviewees. Anonymity requires that even the interviewer does not know the interviewees’ identity.

Peer Review, Journal of Qualitative Criminal Justice & Criminology, page 4

In the first paragraph at the bottom of page 5 the author says, “The interview questions were designed to gain insight into the experiences and perspectives of Utah appellate attorneys.” Here, would be another place where the word “indigent” should appear.

Again, on page 6 under the heading, “Data Analysis Plan,” there is no mention of the word “indigent.”

In the first sentence on page 6 under the heading “Results,” the author says, “Five attorney interviews were analyzed to understand better Utah appellate attorneys’ experiences and perspectives.” Again, here is another place in the paper where the word “indigent” should be mentioned.

While the direct quotes of the interviewees are an appropriate part of the paper, at the end of each of the four “Themes,” the author needs to write a summary of each specific Theme.

Also, in the “Discussion” section, the Themes need to be connected to the concepts and/or theories of “Burnout.”

Also, in the “Discussion” section of the paper, the author needs to engage in analysis, in-depth examination, and/or theoretical development with respect to the Themes. It is not the job of this reviewer to tell the author what sort of theory and/or analysis should be applied to the Themes, but some sort of analysis and/or theoretical development must accompany the descriptive nature of the paper. The most appropriate part of the paper where this should occur is in the “Discussion” section.

On page 13, under the “Strengths, Limitations, and Implications” section of the paper, the author says, “There is a push towards more rigorous evaluation of current caseloads, and implementation of fair standards.” Here, the author needs to elaborate on what they mean by “push.” In addition, the word “towards” should be changed to “toward.”

On page 13 at the end of the first paragraph under the “Strengths, Limitations, and Implications” section, the author says, “Finally, the results of this study identified specific areas that can be targeted for caseload reform.” Here, the author needs to explain and/or address exactly what “specific areas” should be “targeted for caselaw reform.”

On page 13, in the second paragraph under the “Strengths, Limitations, and Implications” section of the paper, the author says, “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.” Perhaps these results are not generalizable to other states, but the author needs to drill down on the results that they did produce with this study and analyze the results in more detail and elaboration with respect to application in the state of Utah.

Peer Review, Journal of Qualitative Criminal Justice & Criminology, page 5

Moreover, the “Conclusion” needs more work. The paper should also have more citations and/or have more references.

In the “Conclusion” section, the author needs to focus more on the “policy implications” of his/her results. Several sentences on specific areas of “future research” needs to be discussed as well.

Overall, I have many suggested changes for the author to make, but I think this paper could provide a quality contribution to the literature once these revisions are fully integrated