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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?

A New Study on Public Defense Well-Being: The Stress of Injustice

A new study of public defenders was published on Dec. 12, 2020, entitled The Stress of Injustice: Public Defenders and the Frontline of American Inequality, by Baćak, Valerio and Lageson, Sarah and Powell, Kathleen. It is summarized by The Crime Report in Public Defenders Suffer From the ‘Stress of Injustice’: Study (Jan. 26, 2021).

Both the article summary and the study itself are worth reading, offering perhaps the first study I’ve seen that examines the problem at the systemic level and offers systemic solutions. That’s right, not a single mention of curing everything with yoga and lavender oil—both of which I appreciate for helping me cope with the symptoms of job stress, while I understand that systemic solutions are needed to address the causes of that chronic job stress.

Using semi-structured interviews, these researchers at Rutgers University and Drexel University applied a series of tools to assess the “social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged” to a sample of 87 public defenders across the United States.

They found three “major stressors” of injustice that affected the emotional health of those practicing indigent defense just as definitively as the individuals they defended:

(1)    penal excess

(2)    economic divestment and 

(3)    the criminalization of mental illness.

While the researchers said their study was not designed to suggest policy, they noted their findings implied approaches that could mitigate public defenders’ occupational stress. Possible approaches included:

(1)    Increase funding for public defenders;

(2)    Provide assistance with secondary trauma as soon as an attorney starts a job;

(3)    Introduce workplace interventions for overworked attorneys to reduce occupational stress;

(4) Educate young attorneys about stress management early in their careers, or even in law school.

3 Spheres of Public Defense Well-Being: A Framework for Understanding Impacts and Obstacles, and for Responding with Appropriate Tools and Strategies

I’ve been thinking for a while about a useful framework for discussing well-being in public defense. I believe there are three spheres relevant to our well-being in public defense work: self, service and system. These three spheres provide a useful framework for understanding impacts, obstacles and challenges to sustaining well being, and also guide us in responding with appropriate tools and strategies

The Self sphere refers to the personal experiences we bring to this work and the personal practices we rely on to sustain us—things like mindfulness or gratitude journals. This circle also includes the ways we approach our work, like struggles with boundaries or work addiction. And it includes the basic self-maintenance like proper sleep, nutrition and exercise.

The Service sphere contains the impacts of this work. Public defense work has undeniable traumatic impacts that we must mitigate and process in order to stay in this work. It also includes public defense culture—the leadership, training, mentorship and support that impacts well-being.

The System sphere contains the larger systemic obstacles discourage us and wear us down when they get in the way of us providing the high quality and client centered representation that motivated us to do this work in the first place. System obstacles are things like high caseloads, racist systems, under resourced offices, and hostility toward the defense function from other system actors.

What public defenders need to sustain well-being are strategies in all three spheres.

(1) Individual strategies and practices to promote wellness and to mitigate inevitable impacts of trauma.

(2) Colleagues and leaders that build a culture that supports well-being.

(3) Systemic strategies to reduce obstacles to providing highest levels of representation.

It is essential to match the appropriate response and strategy to the obstacle or impact. It is common to shift the responsibility to the individual to fix everything with self-care. But systemic obstacles need systemic responses.

What do you think? Let me know if this framework feels useful to you. It’s one small piece of the A-Z Resource Guide I’ve been working on. A new update has been uploaded.

Some Thoughts on Public Defense, Data Entry and Moral Injury

I’ve been thinking about moral injury and data entry. This may not seem the sexiest topic during a pandemic, but during a pandemic is when many public defense offices are simultaneously rolling out or increasing data collection.

This focus on data also may be because I’ve just spent many weekend hours entering file notes and case data. I did not enjoy it. I resented that I was not spending my time meeting with clients or writing motions for upcoming trials.

Moral Injury, covered extensively at this site from doctors Wendy Dean and Simon Talbot, is a useful lens through which to view the movement to collect data in public defense. Moral injury looks at the impact on our well-being from systemic obstacles to meeting the needs of the people we represent.

Public defense offices are embracing data collection and championing it as a tool to secure additional resources, demonstrate inequities at all phases of cases, and quantify arguments that have previously been anecdotal. These are all goals worth pursuing and collecting empirical data may be a powerful tool in those efforts.

However, I have concerns about the way data is being collected in public defense and the toll it is taking on our well-being. The lens of moral injury invites these questions of leaders: is the action that is being taken making it easier or harder to do right by the people we represent? Is it increasing or decreasing obstacles to achieving the goal of providing high quality and client centered representation?

Leaders offer data as a tool to improve representation. However, in the day to day life of public defense staff doing the data entry, it is often experienced as an obstacle.

Onerous data collection tasks are often added to a workload with no discussion of how the time is to be re-allocated or re-prioritized. Directives to collect data sometimes roll out in emails worded like this: you are all now directed to collect the following 941 data points for each case, using the 443 drop down menus described in the accompanying 231 page technical guide, and to log this information into the case management system by the close of business on the day of the court appearance. I now spend 25 minutes logging data points for a 5 minute court appearance.

The ABA’s Well-Being Toolkit includes in its definition of a healthy workplace that tasks and responsibilities can be accomplished successfully within the time available. (Well-Being Toolkit For Lawyers and Legal Employers, by Anne Brafford for the American Bar Association, August 2018, at p. 9.) In most public defense assignments, this is laughable. We are continually triaging essential tasks like communicating with the people we represent, completing investigation and legal research for their cases, consulting with experts on everything from complex DNA analysis to immigration consequences of a charge or conviction, coordinating with advocates and other county agencies to address housing, mental health and substance use treatment needs. We work long hours into the evening and weekends and still don’t complete important tasks. There is never enough time.

Public defenders do not have “spare time.” When a time-consuming task such as data entry is added, something else must give. The two most likely responses are: (1) sacrifice non-work hours in the evening and weekend, instead of spending that time with loved ones and/or engaging in activities of rest, recreation and resilience building; or (2) displace other tasks, which then fill lists to be completed later or not completed at all– such as client communications, motions and investigation.

This is experienced as a negative impact on well-being, both by forcing work into non-work time and by de-prioritizing direct client service in favor of data entry. This obstacle to the goal of providing direct client service –at a high level and in a client-centered way– is experienced as moral injury, the betrayal of our motivating purpose for becoming and remaining public defenders.

If we are to embrace data as a tool, aren’t there better collection models? Can’t we be creative in finding resources to add staff at the onerous collection stages at the front end, not just in using the collected data to advocate for more resources in the future? Can certain data be collected for a period of weeks, or must we live with the constant adding of new toggles and drop down menus to data entry checklists that grow so long it seems farcical? How can this new category of work be thoughtfully allocated? Integrated into staff workflow in a way that still respects autonomy to prioritize tasks?

Each time onerous data tasks are added, there has to be discussion of how this impacts other task priorities. The discussion needs to include the cost of reducing basic human communication and collaboration. The shift from anecdotal to data can feel like a shift away from listening and being heard. The people we represent feel it when we look away from them to navigate drop down menus on computer screens. Requiring simultaneous data collection conflicts with best practices of building trust through eye contact and periods of listening without note taking.

Similarly, public defense staff members feel unheard if they describe their actual human experience and are told by leaders that the experience isn’t valid until supported with data. The tool of data cannot replace the listening, anecdotal storytelling, and empathy that are central to public defense at all levels.

I would love to hear examples of places in which data collection has been rolled out smoothly, welcomed by those doing the collection, and recognized as a valuable tool rather than an obstacle to providing high quality representation. I hope you’ll post and reply with your success stories, so that we can all learn how to better use data collection as a tool, rather than experience it as an obstacle to our work and a negative impact on our well-being.

RBG: May Her Memory Be A Revolution

Though the news cycle has moved on, today to the hearings to confirm the nominee to replace her, I am still thinking about RBG. I am grateful that she was there as a beacon for four generations of feminists. I’m grateful to her for opening doors that I walked through.

I decided to go to law school—solely to be a public defender– during the summer of 1991, my interest sparked by working as a student investigator at the Public Defender Service in DC. Before that, I’d made fun of friends headed for law school the same way I’d made fun of the people saying I should spend my time at Cornell pursuing an M-R-S degree. My senior year of college was spent applying to law school during the hearings at which Anita Hill was treated horribly, Clarence Thomas horrifically replaced Thurgood Marshall, and everything about SCOTUS, politics and the legal profession was demeaned. I was ambivalent enough about law school to defer going for a year.

August 1993, the month I ultimately did start law school, was the same month that the Senate confirmed RBG to join the Supreme Court. During my first year, she spoke on campus at Celebration 40, an event [unironically] celebrating that the law school had been admitting women for [only?!] 40 years. RBG talked about the hostility toward her as one of nine women in a class of 400 in 1956, and of being unable to find a job after graduation. “I struck out on three grounds,” she said. “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible.”

As a student a few months into experiencing male law professors leading discussions dominated by overconfident male law students, it’s hard to overstate the impact of hearing her speak candidly about the challenges she’d overcome along the path to SCOTUS (where she noted that the Court had just that week renovated the robing room to install a women’s restroom equal in size to the men’s).

She graciously tolerated that a small group of us women ILs followed her around like ducklings during that fall day in 1993, from building to building, peppering her with questions while stumbling over our own words. She was a tiny, witty, warm, encouraging, piercingly smart, warrior. Every one of us weird little ducklings got a glimpse of how she had brilliantly blazed a trail that created opportunity for us.

I was lucky to see her speak at other law school events over the years. She was always impeccably composed and charismatic. I’d listen and wonder if she’d ever wanted to scream burn it down and stopped herself, instead relying on that piercing confidence that she would outwork and outsmart and out strategize everyone.

Her focus on women’s rights was a strength, and perhaps sometimes a weakness. Her strategy was brilliant and effective over time. And she is rightly criticized for a mixed record in other areas, and for her failure to hire people of color as clerks. I think of this sometimes when I question dedicating so much of my own life to the rights of the indigent accused, all the while not marching as much as I would like for other crucial issues like climate change or racial justice. Sometimes this prioritizing disappoints me; sometimes I remember that persistence and focus over time produces results. These are not easy decisions, choosing a cause to which to dedicate your one wild and precious life.

In 2010, I was one of 30,000 people in the audience at Maria Shriver’s Women’s Conference in Long Beach, when Diane Sawyer interviewed Sandra Day O’Connor and Ruth Bader Ginsberg together, and this happened:

“I’ve got to tell you, I went to the Supreme Court recently… I sat in on an argument, and I looked up at the bench on which I sat for 25 years, and what did I see?” O’Connor said. “I saw on the far right, a woman. On the far left side, a woman. And here in the middle, a woman. And it was dazzling.”

“It’s the first time the public can see we’re really there. Really there to stay,” Ginsburg said.

“How many women would be enough?” Sawyer asked.

“Nine,” Ginsburg replied with a smile. “There’ve been nine men there for a long time, right? So why not nine women?”

The roar of the crowd was deafening. At that time, my daughter was four, and I was in a trial assignment that made for an impossible juggle of long murder trials and birthday parties at which I’d failed to procure some requested necessity like pink princess burritos. Barely 90 pounds of the SCOTUS rock star RBG, smiling on a stage far away in a stadium, reminded me that this is the juggle we do. Dig in and handle it, be grateful for having the opportunity so many weren’t given, try to grow the opportunity even more for the next generation.

In June of 2017, I was sworn in at SCOTUS. As we watched the arguments in the morning before the swearing in, I kept thinking there are THREE women up there asking questions. I hoped that my daughter seeing three women on the court seemed normal, the only way she’d ever seen it, prompting only the question but why not more? I hoped that meeting RBG had the impact of making seemingly impossible things feel a little more within reach. At the reception, I asked RGB if she still thought nine was the right number of women on the Court, and she gave that coy smile and said yes, and we needed to pick up the pace.

It was ridiculous to think a person aged 87, who fought cancer five times over three decades, might live forever. Yet it still seems a little stunning that she didn’t pull it off by out strategizing death or sheer force of will.

May her memory be a revolution.