What is the gold standard of public defense coverage?

What is the gold standard of coverage, so that people can have restful and undisturbed time away from work? I tried to crowdsource this question on social media in January 2021, and most of the replies I received were something like what is this time off of which you speak?

Taking vacations is one of the single best predictors of overall well-being. The 2018 ABA Well-Being Toolkit points out, at p 12: “In their study of 6,000 practicing lawyers, law professor Larry Krieger and psychology professor Kennon Sheldon found that the number of vacation days taken was a significant predictor of lawyer wellbeing–and was stronger even than income level in predicting well-being.”

Many public defenders don’t take vacations. I know many who are losing vacation accrual because they’ve exceeded the maximum number of unused vacation days. Some take vacation days to have uninterrupted prep time before trials or big hearings, because their court schedules include no prep time. Many describe taking vacation as too punishing to even bother, due to crushing caseload and lack of effective coverage.

These same obstacles can cause defenders to come to work sick rather than calling in for coverage. I’ve heard too many stories of colleagues rushing from a family crises or car collision to get to court on time. We, and our office cultures and policies, create these expectations of ourselves. We need to uncreate them and create a new model.

Taking a restful vacation (or other time away) requires adequate coverage. It is unreasonably and unnecessarily stressful to worry that clients are standing alone in court with no one standing next to them, or to return to angry and frustrated clients who had motions dropped or cases continued unexpectedly with no explanation.

For a small office, having a court partner or a small team can provide built in coverage for brief absences. This requires a culture of clear communication and cohesion, in which people volunteer and cover for each other with the knowledge that the same coverage will be extended to them. However, for a lengthy vacation or trial, it’s not reasonable to ask a court partner to do double work for a period of weeks or months.

The “knock on doors and find coverage” method might occasionally work, but can result in people perpetually overloading less senior staff who feel disempowered and unable to say no.

The “just clear your cases” method might work for short absences, but should never require a defender to choose between taking time off and pursuing an action most beneficial to the client. For example, if a client is clearly better off doing a motion hearing during the attorney’s planned absence, adequate coverage should be provided to seek to accomplish this. The attorney should never be required to convince a client to waive a speedy trial right or delay a motion in order to take a vacation. This is not reasonable.

I have worked in large offices that have a person assigned to the coverage/miscellaneous assignment, who spends the day darting from courtroom to courtroom covering cases for absent colleagues. This can work very well.

Whatever the set-up, adequate coverage has the following components:

  1. The person who will be absent is expected to leave sufficient notes/memo/coverage information for another person to provide high quality advocacy.
  2. The person who will be absent is expected to avoid setting cases while away as long as no interest of a client is harmed (but clients are not asked to waive or give up rights for staff vacations; staff are not required to choose between time off and pressuring clients to agree to continue proceedings that are not in their interest to continue).
  3. There is a clear procedure for the person who will be absent to seek coverage and provide the coverage instructions, and a person assigned to cover tasks and cases, with sufficient time to prepare (ideally this is done by a supervisor, and not by going door to door begging for help).
  4. The person covering the cases is expected to provide meaningful advocacy (communicate with the clients, argue motions or resolve cases to the extent possible, not just continue everything).
  5. Both the person who is absent and the person who is covering provide clear and timely communication about the coverage.
  6. A supervisor/manager is responsible for ensuring timely coverage assignments and is available to provide the coverage when needed.

A second obstacle to taking meaningful time off is the failure to pause new assignments during an absence. Many defenders describe returning from time away to a towering pile of tasks or cases that were assigned during the absence. This amounts to an expectation of actually working the hours that were taken as leave time, typically by doubling up as soon as you return to work and adding hours to be worked without compensation during evenings and weekends in addition to full time work. This is a particular insanity that occurs throughout PD offices. Not only is this an unreasonable work expectation, but it means returning to work feeling behind and facing people who are reasonably frustrated that no one has met with them or been working on their cases. Defenders describe this as so punishing and demoralizing that they don’t take vacation at all. Are there other professions that expect time off to be “made up” by working the hours to cover and complete all the work that would have occurred during the hours taken off? This is not reasonable or sustainable.

Post or send me your thoughts? What is your office doing well to provide coverage and uninterrupted work time?

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