descriptive image
[an error occurred while processing this directive] Working with FDAP

Assisted Cases   Modified-Assisted Cases   Independent Cases   Case Assignments   Requirements for All Cases

Assisted Cases

In "assisted" cases, the record will be sent directly to our office from the superior court. The assisting FDAP staff attorney (referred to as your "FDAP buddy") will review selected portions of the record, and will then prepare a short memo concerning possible issues on appeal, pertinent case law and possible needs for augmentation of the record.

The record in the case, the staff attorney memo, and any information our office has obtained from trial counsel and the appellant will be sent to you once the FDAP buddy has finished the initial memo. We will try to see that this material reaches you before the 45-day period for the AOB begins to run.

The FDAP buddy will want to consult with you (consultations will usually be by phone) after you have familiarized yourself with the case.

In assisted cases, the requirements
for panel attorneys are:

1. Consult with the FDAP buddy assigned to your case about the opening brief; it is particularly helpful to consult with the FDAP buddy before spending substantial time writing up the issues.

2. Send a draft of the appellant's opening brief (including Wende briefs, Sade C., and Ben C. no-issue statements --- see below, requirements for all cases) to our office two weeks before the brief is due to be filed, so that the FDAP buddy has time to review it before filing. The FDAP buddy may offer suggestions as to form, or suggestions to add, modify, or delete certain arguments; you should not expect the FDAP buddy to re-write the brief for you. The drafts you send to our office should be typewritten or computer-generated and double-spaced, and should otherwise be as close as possible to final form for filing with the court. You need not include draft tables of contents and authorities. Please note that it is not proper to use the fact that FDAP must review your brief as a reason for seeking an extension of time. Additional time has already been built into the AOB schedule for assisted cases. Please see Attachment H-1 to these materials, concerning extensions of time.

3. Consult with your FDAP buddy about motions you wish to file. A copy of any motion or document which is filed with the court must be sent to our office.

4. Send compensation claim forms to our office. You may send an interim claim after filing the AOB (except in Wende briefs); and a final claim at the conclusion of the case. Our office evaluates compensation claims and forwards them to the court.

5. You should also check briefly with your FDAP buddy about other aspects of the case, including the reply brief, oral argument and petitions for rehearing and review.

Modified Assisted Cases

  • A "modified assisted" case is considered an assisted case, but FDAP does not review much of the record and does not provide a full memo. Rather, in some cases, the issue-spotting and research is largely left to the panel attorney and we review a draft opening brief. In other cases, we may provide a brief memo detailing the issues, but not review a draft of the opening brief. You will be told explicitly by the FDAP buddy if the case is modified assisted and, if so, what is required of you. These modified assisted cases are appropriate, for example, in cases where FDAP feels that the panel attorney's briefing can benefit from some assistance, but the attorney's knowledge of criminal law issues is such that there is less need for the up-front memo identifying issues usually done in an assisted case; or conversely, where we believe the attorney's briefing skills are fine but some help is needed in issue selection.

  • As noted, FDAP may offer a case on a modified assisted basis because we believe that an attorney has been doing well in assisted cases and does not need the full range of assistance. Please note that there may be occasions where an attorney has been receiving cases on an independent basis, and then is offered a case on a modified assisted basis. There may be a number of reasons for this. One situation is where we are offering a case of greater length or complexity than previously offered, and thus we believe that some assistance would be beneficial. In this sense, a modified assisted case can be a stepping-stone to receiving more complex cases on an independent basis in the future. Modified assisted cases may also be offered where some of the prior independent cases have shown problems in the briefing, and it is felt that having a FDAP buddy review the draft in the next case would be beneficial. As with all assignments, things are constantly re-evaluated in light of recent work by the attorney. Thus, being offered a modified assisted case, if you have generally been receiving independent cases, does not mean that you are permanently being assigned assisted cases. As always, the director is available to discuss your case assignments.

Independent Cases

If you have been assigned to an "independent" case, the record in the case will be sent directly to you from the superior court (in non-record ready cases) and from FDAP (in record ready cases). You will already have been notified by our office that the case is an independent case, and the court order appointing you will also note that it is an independent case. Each case also has a FDAP attorney assigned to it (usually referred to as your "FDAP buddy" for the case).

For independent cases, you do not have to consult with your FDAP buddy before filing the appellant's opening brief (AOB), unless you are filing a no-merit (Wende) brief. You may consult with your FDAP buddy if you have key questions about the case. However, please note that due to constraints on FDAP's assistance and limits placed by the judiciary on how much assistance time FDAP may spend on independent cases, in an independent case it is expected that you will handle the case essentially entirely by yourself. You should restrict questions to FDAP to crucial matters which you are unable to resolve yourself.

In independent cases the requirements
for panel attorneys are:

1. Consult with our office before filing a no-merit brief (Wende) or no-issue statement (Sade C. & Ben C.) - see below, requirements for all cases.

2. Consult with our office before deciding with the appellant that the appeal should be abandoned for lack of arguable issues.

3. Send our office a copy of every document you file in the case, including all briefs. (These are necessary for our continuing evaluation process and for our role in the compensation process.)

4. Send compensation claim forms to our office. You may send an interim claim after filing the AOB (except in Wende briefs), and a final claim at the conclusion of the case. Our office evaluates compensation claims and then forwards them to the court.

  • Calls concerning compensation claim procedures or the status of a claim should be directed to FDAP's claims processor.

  • As noted, the expectation in an independent case is that the panel attorney does not need guidance or reassurance. Rather, any contact with FDAP should focus solely on critical areas of the appeal where the panel attorney is at an impasse.

  • If you do call your FDAP buddy, please make every effort to keep the communication short and to the point. The FDAP buddy will try to give guidance, but the FDAP buddy will not be able to do research for you. The primary function of the limited assistance in independent cases is to help get you through particularly difficult points by sounding out different approaches and helping to point your research in a sound direction. Finally, please note that as occasional "quality control" checks we may ask to review a draft of the opening brief in an independent case. If we do, we will provide a very rapid turnaround of the draft, within a couple of days, so as not to impinge significantly on your briefing time.

Case Assignments

  • FDAP administers the appointment process in accordance with rule 8.300(d), California Rules of Court, pursuant to our contract with the Court of Appeal, First Appellate District, through the Administrative Office of the Courts (AOC). In each case processed by this office to the point of appointment of counsel, we recommend an attorney from our panel to the court for appointment on that specific case. Orders appointing counsel are of course issued by the court, not by this office.

  • Be advised that admission to the First District appointment panel does not entitle you to any particular number or kind of cases or to continue to be listed on any particular appointment panel within the First District; since its inception in 1986 the First District Appellate Project has been under contract with the Court of Appeal to carry out the functions stated in rule 8.300, including the evaluation provision of rule 8.300(d): "[Evaluation] The court shall review and evaluate the performance of appointed counsel to determine whether counsel's name should remain on the same appointment list, be placed on a different list, or be deleted." The specific factors considered in attorney evaluations can be viewed here. The classification of cases can be viewed here.

  • If FDAP deletes your name from the appointment panel, you may contest that decision and the Court of Appeal will make the final decision on whether to retain you on the panel. Initially, you should contact FDAP's Executive Director.

Requirements for All Cases

1. Personal Responsibility of Counsel. In both assisted and independent cases you, as the appointed attorney, must take complete responsibility for the case. While you may use paralegal assistance and, in independent cases, the assistance of other attorneys to supplement your own work on the case, you must be completely familiar with the issues and facts of the case. When FDAP staff attorneys call to consult about the case, they need to talk directly with you, not with someone who is helping you with the case. The final product must be yours.

Specifically, that means in all cases that you are personally responsible for

  • reading the entire record carefully,
  • making sure that all necessary pleadings are filed and are factually and legally correct,
  • meeting all deadlines,
  • making sure the record on appeal is complete, and
  • ensuring prompt, proper and thorough communication with the client, FDAP, opposing counsel, and the court.

2. Use of Associate Counsel. Appointed counsel may use associate counsel in independent cases only. (AIDOAC policy prohibits an attorney handling a case on an assisted basis from using associate counsel, except under extraordinary circumstances with prior approval of the project director.) The appointed attorney must abide by all of the requirements noted in paragraph 1 above regarding appointed counsel’s personal responsibilities.

In December 2015, the appellate projects announced a new statewide policy on associate counsel promulgated by Appellate Indigent Defense Advisory Oversight Committee (AIDOAC). Before using associate counsel or a law clerk, be sure to review the projects' announcement of the policy and the 2015 Associate Counsel Policy itself.

Additional information regarding compensation for the work of associate counsel is in the claims area of this website.

It is the appointed attorney's own responsibility to ensure that the work of any associate counsel is complete, correct, and up to the quality of the attorney’s own work. The nature and complexity of cases FDAP selects for a panel attorney are based on evaluations of that attorney’s performance in prior cases. Ceding control of a case to another attorney, or failing to properly supervise associate counsel, undercuts those efforts to find for the appellant an attorney qualified for his or her case. And the failure to adequately supervise the work of a subordinate attorney or non-attorney employees or agents can be a failure to act competently on behalf of a client. (See Rules Prof. Conduct, rule 3-110, "Discussion," and cases cited therein.)

3. In cases in which appointed counsel believes a brief under People v. Wende (1979) 25 Cal.3d 436 or a no-issue statement under In re Sade C. (1996) 13 Cal.4th 952 or Conservatorship of Ben C. (2007) 40 Cal.4th 529 should be filed, appointed counsel must first consult with his or her FDAP staff "buddy" prior to filing the no-issue brief or statement. This consultation usually will involve sending your buddy the record and draft statements of the case and facts. It is also helpful to provide a short account (in writing or on the phone) of any issues you considered. In a rare case your buddy may conduct the no-issue review in some other fashion, such as reviewing a draft statement of case and facts and conducting a detailed telephone discussion of the case.

4. Whenever you have a change of address you must use AOC form found here. NOTE: using the AOC form does not satisfy the requirement that you also file a "Notice of Change of Address" with the Court of Appeal in each case you have pending.

5. If you call about a case, please direct that call to your assigned FDAP buddy for that case. Please do not call for the Attorney of the Day (AOD), unless your FDAP buddy is out for the day and it is a true emergency, otherwise you should just leave a message for your buddy. (When a FDAP staff attorney is on vacation, another attorney will cover those cases and your case will be directed to the covering attorney so there will be no delay due to vacations.) There will be times when your FDAP buddy may direct you to another staff attorney in the office who has particular expertise in an area of law, but you should begin with your buddy.



Copyright © 2019 First District Appellate Project. All rights reserved