Timing of Interim and Final Claims
Use of Translators
Memo from the AOC Regarding Guidelines
Statement of Policy Regarding Interim Claims
Under our arrangement with the Court of Appeal, compensation
claims are to be sent by you to FDAP, not to the court.
FDAP makes the recommendation for the amount of hours and
expenses approved; but please note, claims are subject to
random audit by the judiciary's Appellate
Indigent Defense Oversight Advisory Committee (AIDOAC),
and AIDOAC may alter the amount recommended. In highly unusual
cases, the court itself may make the final decision as to
Claims are evaluated under the compensation
guidelines. The hourly rate for panel attorneys varies depending upon
the type of case. These guidelines originally were based
upon a survey done of experienced appellate attorneys in California
by Appellate Defenders, Inc. This survey
assessed what time reasonably "would be devoted to the
appeal by an attorney who is experienced in handling criminal
appeals." The guidelines were subsequently approved,
in their current form, by the courts and Administrative Office
of the Courts in November, 1989 and modified periodically
since 1989. The experience of all projects around the
state has been that these guidelines have generally resulted
in fairer and more consistent compensation awards.
The panel attorney bears the obligation to keep track of hours.
You should also attach an explanation for work which you feel
justifies compensation beyond the guidelines. Total
processing time from FDAP's receipt of a claim to processing
by the AOC and then to the Controller's issuance of a check
averages approximately three to five weeks. (Note: final claims
in Wende and Sade C. cases cannot be forwarded by FDAP to
the AOC until 30 days after the filing of a Wende brief
or Sade C. statement.)
The guidelines are neither a floor nor a ceiling on panel
attorney compensation in a given case. You should bill
only the amount of time you have actually spent on a given
task, even if that amount is less than you believe the guidelines
would permit. On the other hand, if you bill above the
guidelines amount and that amount is justified, you may be
awarded full compensation as claimed, but you MUST include
an explanation for hours clearly over guidelines.
If you anticipate unusual expenditures for travel or other
expenses, you should consult with your FDAP buddy about seeking
advance approval from FDAP and/or the court. For example,
although the guidelines provide for reimbursement for expenses
for expert witnesses, it is a rare case in which such an expenditure
is needed. Before hiring either an expert witness or
an investigator you must discuss the matter with your FDAP
buddy and obtain pre-approval.
A few specific areas concerning compensation claims:
follow the 2014 AOC-approved instructions for reporting habeas time on claim forms.
FDAP is authorized to approve, in appropriate cases, requests
for funds up to $900 for investigator and/or expert services
(as long as the expenses are also within the approved rates
of $65/hour for investigators and $125/hour for experts).
Requests for more than that amount, or for a higher hourly rate,
must be submitted to the Court of Appeal, as described below.
A few points in connection with the question of when to go
directly to the court, and when to go to FDAP:
-If you reasonably believe from the outset that you will need
more than $900 (or that you are requesting expenses at a higher
rate), you should make the request directly to the court in the form of an ex parte application (i.e. a pleading, not a letter).
submit the request to the court, you should: (a) entitle it:
Ex Parte Application for [Investigator/Expert] Funds;
(b) address it to the Presiding Justice of the division; and
(c) mail it, however, directly to FDAP, which will forward the request to the Managing Attorney at Court of Appeal. (As an Ex Parte application, you
would not serve the Attorney General.) The Managing Attorney, in turn, will submit the application to the Presiding Justice, who will issue an order either granting or denying authorization to incur the requested expenses.
-If you reasonably believe that you will only need $900 or
less to complete the services for your case, you should make
the request to FDAP.
-The more difficult situation is where you reasonably believe
that an initial investigation/expert for less than $900 would
reach a fairly definitive point at which you would know either:
(a) it did not pan out and nothing further will occur; or
(b) it did pan out and there are now clear follow-up steps
that will be needed which will bring the total cost above
$900. In that situation, it is proper to bring the initial
request to FDAP, and then subsequently go to the court for
the further funds if the initial showing warrants it.
However, the court does not want a situation where you
know you will inevitably be asking for more money, but go
to FDAP first to try to get your "foot in the door."
Rather, it would be proper to go to FDAP initially, e.g.,
in the following types of situations:
(1) There was an alleged favorable witness who was not called
at trial; the request is to FDAP to send an investigator,
for less than $900, to find the witness. If the witness
is not found, or if the witness is found but not helpful,
that would be the end of it. If the witness is found,
and based on statements from the witness there are now new
leads, you could then go to the court for additional funds
based on what the initial investigation had shown.
(2) An expert will, for less than $900, review some materials
(e.g. appellant's medical records). If the review does
not result in anything beneficial, that would be the end of
it. If the review is positive, you could explain to
the court what the expert has told you verbally and then request
further funding from the court, if necessary, for the expert's
declaration if that would take the total over $900.
As noted, there are no precise guides, but where you reasonably
believe from the outset that you likely will need more than
$900 you should make the initial request directly to the court.
For expenses relating to interpreters, see "Translator/Interpreter"
under expenses in the guidelines and FDAP's Translator
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If you use associate counsel and/or paralegals, their time
will be factored into the time considered reasonable for you
to expend on briefing. In other words, the time considered
reasonable for you to have expended on a given task will be
reduced in accordance with the amount of assistance you received
from associate counsel and/or paralegals on that task.
At its December 2015 meeting, the Appellate Indigent Defense Advisory Oversight Committee (AIDOAC) promulgated a statewide policy regarding the use of associate counsel. Be sure to review the full 2015 AIDOAC policy on associate counsel. Also availablle is an accompanying memorandum from the appellate projects.
Excerpted here from the AIDOAC 2015 Policy is the portion relevant to compensation:
Appointed counsel must report on all compensation claims any usage of associate counsel and indicate how much of that counsel’s time is included in the hours claimed. These principles apply:
Meaning of “associate counsel”: Associate counsel must have been an active member of the California State Bar at the time the services were performed for that 3 individual’s time to be billable as “counsel” time. If that was not the case, the time is billable only as law clerk or paralegal time – an expense not to exceed $25 per hour.
Compensable costs of associate counsel: A claim with associate counsel time will be judged under the same guidelines and standards of reasonableness as those applicable to single-attorney claims. The use of associate counsel does not increase the time payable for any service performed.
Claiming associate counsel’s time: Associate counsel time is reported as a part of appointed counsel’s time for any specific task. Associate counsel time included in the claim is then itemized in the associate counsel attachment, which must state the name and California State Bar number of the associate counsel. These special rules apply:
- Counsel must first claim all of his or her own billable time and only then add any associate counsel time deemed billable on top of that: It is essential for the project to know how much time appointed counsel personally spent on the case, in order to assess counsel’s compliance with these associate counsel policies. Counsel must not cut his or her own time in order to claim associate counsel time: doing so will understate appointed counsel’s own involvement and cause the project, AIDOAC, or court to question whether counsel exercised appropriate control over the case.
- In the attachment for itemizing associate counsel’s time, the hours shown must be only those actually claimed (as opposed to those spent): In determining how much time appointed counsel personally spent on each function, the projects take the total hours reported for each function and subtract the itemized hours for associate counsel. That calculation requires that the itemized hours be only those actually included in the hours claimed. If counsel wishes to state unclaimed associate counsel time to show the extent of work performed on the case or give the attorney due credit, the comments are the appropriate place, not the itemization chart.
Note: Please review the full 2015 AIDOAC policy statement for a description of the permitted uses of associate counsel.
Use of Prior Briefing
If you use an argument which is substantially based on the
same argument used in a prior case, you must inform FDAP of
that fact on the "Prior Briefing Form," and explain what new work
you have done.
committee requires that you use the "Use
of Previous Briefing" Sheet. It requires you to indicate
whether you have used prior briefing "to a substantial
extent" in preparing any of the arguments in the current
case. It has generally been the requirement that counsel indicate
such usage, but now AIDOAC wants this standard form used.
Please note that "substantial" usage does not
include re-using passages on general principles such as standards
of review or prejudice (the guidelines assume experienced
attorneys will have access to and use such materials); rather,
the substantial use refers to the actual argument itself.
Similarly, re-use of some of the basic black-letter caselaw
as a foundation for the argument would not usually rise to
the level of substantial recycling of the prior brief.
However, where the argument itself is significantly taken
from the prior briefing you should indicate that on the form,
and explain roughly how much was prior briefing and how much
was new, e.g.: "Argument I: about 40% was copied from
previous briefs I have written. That 40% required approximately
2.0 hours to adapt the argument to the facts and update the
citations." Where appropriate you could also explain
that a number of the cases discussed were new, as well as
describe significant new factual material.
All claims must include a Use of
Previous Briefing form. You do not need to submit the
sheet in a Wende case.
A special note about reply briefs is that the formula of one-third
the time spent on the opening brief refers to the actual written
AOB work product, exclusive of time spent on unbriefed issues.
Also, counsel should be especially mindful as to reply briefs
that the compensation claimed should be based on actual time
expended. The one-third formula may be one of the less
precise elements of the guidelines; often, a short and straightforward
reply brief will justify compensation at a level less than
that yielded by the one-third formula, while a complex reply
brief addressing points raised by the respondent can justify
an award of compensation greater than that provided by this
Effective February 26, 2015, all claims will need to be electronic using the eClaims system. The important exception will be for cases in which a paper claim has already been submitted; all subsequent claims in such cases must also be manually submitted on paper. In other words, a final claim cannot be submitted in eClaims format if the interim claim was a manually submitted paper claim; all claims in any one case must use the same format for the automatic math calculations to work.
Below is a memo from the AOC setting out the court's general guidelines for determining
compensation and reasonable expenses.
Web Browser Compatibility: For computers running Microsoft
Windows, eClaims requires either Internet Explorer 5.5 or
above or the Mozilla Firefox
web browser. For Apple Macintosh computers, please use either
the most recent version of Internet Explorer or Mozilla Firefox.
Once you have been appointed to a case and are ready to file your first interim or final claim, please contact the FDAP Claims Administrator at FDAP (415/495-3119) to get your temporary eClaims password.
You can access the eClaims from the "quick links" pull-down menu on any page of the FDAP website. On the eClaims
Login screen, type your login name (your
State Bar number) and the temporary password assigned to you
when you were admitted
to the FDAP panel. Then choose FDAP for Project, and click
on Login. You will be asked at that point to create a permanent
password. Here are the rules for permanent passwords:
Use 8 characters or more, without spaces.
Among those 8 or more characters, use:
- upper case letters and
- lower case letters and
- at least one number. (For example: DAFFYdog123)
new password in a safe and secure place. The eClaims program
employs the same level security as a bank. If you do forget
your password, call the FDAP claims administrator for assistance in establishing a new password.
Submitting an eClaim: Now you are ready to begin your
first eClaim. The program asks for a case number. Enter the
number, including the capital letter prefix, and click on
Begin Search. The next screen, Locate Claims - Results, will
indicate that no such claim has been found. That's because
you have not yet begun the claim. Insert the case number at
the end of the line that begins Create new..., and click on
Interim or Final (making sure your designation of "interim"
or "final" is correct so that you won't have to
start over later; and remembering that Wende cases usually
have only a "final" claim). This brings you to the
Compensation Claims Checklist, where you can access 12 short
data-entry pages, with the 13th step for printing the claim
for your own records (as required) and submitting it to us
You'll see that much of the data is already filled in for
you. Please check to make sure that it is all correct before
submitting the claim. For your first few eClaims, please read
all of the instructions contained on the various pages carefully.
The program should be relatively self-explanatory.
One of the best features of eClaims is that it gives you the ability to begin a claim and then log out and back in many times to complete it, taking as much time as you’d like. You can also inspect your old eClaims and see the project’s recommendations in each case, along with the date the recommendations were sent to the AOC.
Please remember, all claims are cumulative. That means that if you entered 1 hour for "communications" in the Interim Claim, and you are now preparing a Final Claim with an additional 1.5 hours, your Final Claim for "communications" must be the full 2.5 hours.
If you have any questions about your claims, please call (415/495-3119) or email FDAP. If you have questions or suggestions related to the eClaims program itself, you may call Jay Kohorn, Assistant Director at CAP-LA) (213/243-0323).
of Interim and Final Claims
submit an interim claim when the appellant's opening brief
has been filed, except in Wende or Sade C. cases.
(If a Petition for Writ of Habeas Corpus is filed in a Wende
or Sade C. case, then an interim claim can be filed.)
 Your final
claim can be submitted when the case has concluded (i.e.,
after the Supreme Court has granted review or the time within
which a petition for review can be filed has expired). [CLARIFICATION:
You may choose to file the final claim after you have filed
a petition for review, but prior to the court's ruling, if
you want to forego claiming any time spent on the case after
you submit that final claim. Remember, if review is
granted, a new case number is issued and all of your new work
is billed directly to the California Supreme Court.] AIDOAC
policy is that a final claim should be submitted no later
than six months after the court's opinion.
of policy regarding interim compensation was adopted by
the administrative presiding justices of the Court of Appeal,
effective as of July 1, 1992.
Use of Translators
-Translation is only for correspondence and for FDAP-pre-approved
prison visits; no reimbursement for translating briefs, petitions
and other legal documents.
-The rate for translation is up to $30/hour,
unless the court pre-approves a higher rate.
-The Judicial Council website (below) is a good source
for finding possible translators.
A good source of translators is Judicial Council's
List of Interpreters. The list includes more than
a thousand "certified" interpreters and "registered
interpreters" (you can use either kind). The list
covers eight "certified" languages and dozens of
The list is searchable by language and by geographic area.
It will give you the phone number of the interpreter.
However, the county search refers to the county in which the
interpreter is willing to work; most of the interpreters indicate
they will work in all counties, so your list may include people
who live in Los Angeles, etc. If you prefer an interpreter
who lives in a local county, you can look at their work/home
phone numbers and figure out who's local.
Once you have selected a few interpreters from the list, you
1. Call the interpreter and try to negotiate a rate
of $30/hour. The standard trial court interpreter rates
is higher, so it may well be
possible for you to negotiate a $30/hour rate. You do
not need pre-approval for translation at that rate.
Please remember, translation is only for letters or phone/in-person
communication. It is not permissible to be reimbursed for
translating briefs or other legal pleadings and documents.
In-person prison visits, with or without interpreters need
pre-approval from FDAP.
2. If you cannot negotiate a $30/hour rate, check with your FDAP buddy to request pre-approval for a higher rate. You should
indicate what efforts you have made in terms of getting names
from the list, negotiating rates, etc.
If you have a particularly good experience with a $30/hour
translator, please call our office and let us know.
We will keep a small in-house list and, over time, you may
wish to call initially to see if we have any recommended
translators for your specific language.
[Note: The memorandum below
was written in 1984. We have updated the hourly attorney
rate and the hourly paralegal rate to reflect current compensation.
Footnote added by FDAP.]
THE JUDICIAL COUNCIL OF CALIFORNIA
ADMINISTRATIVE OFFICE OF THE COURTS
TO: All Appointed Counsel Administrators
FROM: Administrative Office
of the Courts
John A. Toker, Attorney
DATE: June 20, 1984
SUBJECT: Revised Guidelines
for Appointed Counsel
We are enclosing a copy of the revised guidelines for appointed
counsel that have been drafted by this office for the Supreme
Court and the courts of appeal.
The principal purposes of the revision are to achieve uniformity
within the courts and, as far as expenses are concerned, to
put appointed counsel on a similar footing as retained counsel.
The court will reimburse those expenses, to the extent that
they are reasonable and necessary, for which a defendant will
normally reimburse private counsel. The guidelines also
end any distinction between expenses incurred in the office,
such as photocopying, and those for outside services.
PAYMENT GUIDELINES FOR APPOINTED COUNSEL
REPRESENTING INDIGENT CRIMINAL APPELLANTS
IN THE CALIFORNIA APPELLATE COURTS
1. The compensation rate for appointed counsel for indigent
criminal appeals is $70 per allowable hour.
2. The compensation rate is multiplied by the number
of allowable hours of appellate work to determine a reasonable
sum for compensation.
3. The number of allowable hours is an estimate of the
amount of time an attorney, experienced in the handling of
criminal appeals, might have devoted to the appeal.
4. Appointed counsel should record the number of allowable
hours devoted to the following phases of appellate work:
a. Communications with appellant and/or trial counsel;
b. Reviewing the record on appeal;
c. Motions and applications;
f. Oral argument;
g. Travel (specify location and purpose);
h. Post-decision petitions;
i. Other services (specify).
5. The following factors are considered in determining
the number of allowable hours.
a. Length of the record;
b. Complexity and novelty of the legal issues;
c. Quality of work.
6. Be able to justify time spent on exceptional procedural
matters, such as repeated applications for augmentation of
the record on appeal.
7. In a case the court deems extraordinary, the exceptional
circumstance of the case will be considered by the court in
ordering reasonable compensation. If you believe you
have such a case, explain your reasoning at the time your
claim for payment of compensation and expenses is presented.
8. In the Courts of Appeal for the First, Second, and
Fifth Districts, you may submit one request for an interim
payment of compensation and reimbursement of necessary expenses
actually incurred up to that time, at the time of, or after,
the filing of the opening brief. [Note: All courts of
appeal now permit interim claims.]
9. In the courts of appeal the final claim for payment
of compensation and expenses is not to be submitted until
your services have been concluded; i.e., after the Supreme
Court of California has granted a hearing or the time within
which it can do so has expired, or after your services have
been otherwise terminated.
10. In the Supreme Court you may submit a request for
payment of compensation and expenses every 60 days.
The hourly fee should cover all overhead related to a case,
with the exception of the reimbursable expenses listed below.
These expenses will be reimbursed to the extent that they
are itemized and are reasonable and necessarily incurred during
the course of the appeal. Prior approval may be required
for extraordinary expenses, such as for travel and expert
The costs of photocopying will be reimbursed, whether the
copy is done on counsel's machine or by a copying service.
2. Postage and delivery costs.
3. Telephone charges.
4. Travel expenses.
The court will determine the reasonableness and necessity
of travel expenses on a case-by-case basis. Counsel
is cautioned that travel expenses are not considered necessary
when the purpose of a trip may reasonably be accomplished
in another way, such as by telephone or correspondence.
When travel is required, reasonable and necessary meals and
lodging will be reimbursed.
5. Services of paralegals, law clerks and associated
Counsel shall be reimbursed for the compensation of paralegals
and law clerks who are not members of the State Bar of California,
at the rate of $25 per allowable hour. Compensation
of members of the State Bar shall be reimbursed at the same
rate per allowable hour as appointed counsel.
Reimbursement of the compensation of all persons performing
legal services, other than appointed counsel, shall be subject
to the following conditions:
(a) In submitting a claim for reimbursement, counsel
shall describe the legal services performed by each other
person so the court can evaluate the reasonableness of the
services and expenses as part of appointed counsel's overall
claim. It is expected that the time that is devoted
to legal services by others will reduce the time that appointed
counsel will devote to those services.
(b) Appointed counsel shall not delegate to others those
functions that require the ability and experience for which
counsel was appointed.
(c) Appointed counsel shall supervise and have full
responsibility for the services performed by others.
6. Expert witnesses.
The compensation of expert witnesses shall be reimbursed at
the same rate per allowable hour as appointed counsel and
the same items of expense shall be reimbursed as for appointed
Secretarial Services Not Reimbursable
The costs of secretarial services, word processing and the
like are considered part of counsel's overhead and are not
reimbursable, whether performed by an employee or an independent
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JUDICIAL COUNCIL OF CALIFORNIA
ADMINISTRATIVE OFFICE OF THE COURTS
[Footnotes added by FDAP.]
TO: First District Appellate Project
California Appellate Project, Los
Central California Appellate Program
Appellate Defenders, Inc.
Sixth District Appellate Program
FROM: Mary Carlos, Manager
Court Appointed Counsel
RE: Interim Payment of Claims
DATE: June 16, 1992
Enclosed is the Statewide Policy on Payment of Interim Claims
which the administrative presiding justices have adopted.
It is important to note that the policy is intended to address
a specific problems. It is not intended as a solution
to the current fiscal problems of the state and is, in fact,
revenue neutral to the courts. The policy includes the
following changes made in response to the comments received
from the administrators and panel attorneys:
The preamble has been amended to reflect the intent of the
policy more accurately.
Expenses will be exempt from the 5% holdback and will be considered
in full at interim just as they are currently.
Only a final claim will be accepted in Wende matters.
Unbriefed issues may continue to be included in interim claims
in those districts that currently accept them at interim.
Justice Kremer has indicated that Fourth Appellate District
already has a procedure in place to ensure that interim payments
do not exceed the reasonable value of services and costs as
ultimately determined by the court on review of the final
claim. Fourth Appellate District will continue to use
The policy becomes effective July 1, 1992 for all claims filed
after that date. The claim form will be modified as
quickly as possible and will be sent to you separately.
Please notify the attorneys on your panel of the adoption
of the policy.
Clerks of the Court
Statewide Policy on Interim Claims
[Footnotes added by FDAP.]
Amounts paid to appointed counsel on interim claims should
approximate the reasonable value of services plus costs rendered
to date. However, the ultimate determination of reasonableness
cannot easily be made until the case is concluded. Each
district should adopt a procedure to ensure that interim payments
do not exceed the reasonable value of services and costs as
ultimately determined by the court on review of the final
claim. The following procedure is deemed appropriate
to achieve that objective:
1. Maximum payment of interim claims is set uniformly
at the lesser of 95% of the amount claimed for hours expended
or 95% of the appellate project's recommended amount for hours
2. Interim claims will continue to be filed in each
district on the same basis as currently, that is, those districts
which require that interim claims be based on the prima facie
allowance will continue to do so and those districts which
accept interim claims based on the ordinary range will continue
to do so. Similarly, those districts which accept interim
claims for time spent on unbriefed issues will continue to
3. Judicial review of interim claims should be eliminated
for claims that fall under a "trigger value" to
be set individually by each district. The processing
of these interim claims, including arithmetic verification
and calculation of the amount to be paid, should be delegated
to non-judicial personnel. Interim claims in excess
of the trigger amount, or any claim that appears unusual,
will be referred for judicial review.
4. Interim claims will not be accepted for Wende
5. Expenses are not subject to this policy and may be
authorized in full at interim.
6. No other exclusions should be made in the assessment
of the interim claim.
7. Administrators should continue the same thorough
review of interim claims that they now perform.
8. Unusual claims may, at the discretion of the court,
be treated differently than set forth above.
 Generally, in a or
Sade C. case, you can submit a final claim 30 days
after filing the Wende brief or Sade C. letter,
even if the opinion/dismissal has not yet issued. back
 See Attachment B-1,
discussing current rates. back
 Additionally, only
a final claim will be accepted in Sade C. matters.
 FDAP accepts unbriefed
issues at interim. back
 Claims are no longer
"triggered." All claims (except for rare exceptions)
follow the same processing scheme. back
 Interim claims also
will not be accepted in Sade C. matters. back