Getting Paid

First District Policies on Expert, Investigator and Translator Expenses

Investigators/Experts

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 $900, or for a higher hourly rate, must be submitted to the Court of Appeal, as described below.

The following considerations are relevant for assessing when to go directly to the Court of Appeal and when to go to FDAP first for investigator and/or expert expense approval:

More than $900 (or Higher Rate) Needed: If counsel reasonably believes from the outset that more than $900 (or a higher hourly rate) is needed, counsel should make the request directly to the Court of Appeal in the form of an ex parte application (i.e. a pleading, not a letter).

When counsel submits the request to the Court of Appeal, counsel should: (a) entitle it: “Ex Parte Application for [Investigator/Expert] Funds” and (b) address it to the Presiding Justice of the Court of Appeal division. However, rather than submit the application to the Court of Appeal through TrueFiling, counsel should email it to FDAP, which will forward the request to the Managing Attorney at the Court of Appeal. (As an ex parte application, it will not be served on the opposing party.) The Managing Attorney, in turn, will submit the application to the Presiding Justice, who will issue an order either granting, granting in part, or denying authorization to incur the requested expenses.

No More than $900 Needed: If counsel reasonably believes that they will only need $900 or less to complete the services for the case, counsel should address the request to FDAP through the consulting staff attorney.

Uncertainty Regarding Whether More than $900 Will be Needed. The more difficult situation is where counsel reasonably believes that an initial investigation/expert expenditure of $900 or less would reach a fairly definitive point at which counsel would know either: (a) the claim under investigation was not viable and nothing further will occur; or (b) the claim appears to be viable 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 of Appeal for the further funds if the initial showing warrants it. However, the Court of Appeal does not want a situation where counsel knows they will inevitably be asking for more money but goes to FDAP first. Rather, it would be proper to go to FDAP initially, for example, 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, counsel could then go to the Court of Appeal 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, counsel could explain to the Court of Appeal what the expert has stated and then request further funding from the Court of Appeal, if necessary, for the expert’s declaration if that would take the total over $900.

As noted, there are no precise rules, but where counsel reasonably believes from the outset that they likely will need more than $900 counsel should make the initial request directly to the Court of Appeal.

Translators and Interpreters

Translation is only for correspondence and for in-person client meetings pre-approved by FDAP; no reimbursement for translating briefs, petitions and other legal documents.

The rate for translation is up to $30/hour, unless the Court of Appeal pre-approves a higher rate.

The Judicial Council’s Master List of Interpreters includes more than a thousand certified interpreters and registered interpreters (counsel can use either kind), and their contact information. The list covers more than a dozen certified languages and many more registered languages.

The list is searchable by language and by geographic area. 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 a results list may include people who live a great distance away. An interpreter’s phone number area code might indicate where they reside.

After selecting a few interpreters from the list, counsel should:

1. Call the interpreter and try to negotiate a rate of $30/hour. Pre-approval is not required for translation at that rate. Please remember, translation is only for letters or phone/in-person communication. Translating briefs or other legal pleadings and documents is not reimbursable. In-person visits to clients in custodial facilities , with or without interpreters, need pre-approval from FDAP.
2. If no available interpreter will work for the $30/hour rate, the panel attorney should confer with the FDAP consulting staff attorney to request pre-approval for a higher rate, indicating what efforts were made in terms of getting names from the list, negotiating rates, etc.

If a panel attorney has a particularly good experience with a $30/hour translator, please contact FDAP and let us know. We keep a small in-house list.