Virginia Lawyers Weekly

Come on, guys.

It’s not that hard to track the time spent on criminal cases, and it probably will im-prove your practice in the
long run.

That’s the advice of Chesapeake sole practitioner Robert E. Kowalsky Jr. to his colleagues who represent indigent criminal defendants.

“I was one of those who did nothing but gripe at the thought of keeping records,” Kowalsky said of legislation that provides for a limited waiver of the cap state law places on court-appointed attorney fees.

But the PDF form for the Application and Authorization for Waiver of Fee Cap, DC40(A), available on the Supreme Court of Virginia Web site at www.courts.state.va.us, can be downloaded and kept on a computer as a fillable form, he said.

And the chore of keeping track of the time spent on a particular case and attaching it to the request for a waiver of the cap need not be that much of a chore, he said.

Programs such as Time Logger by Responsive Software make it easy, Kowalsky said.

The program will work on a desktop PC alone, but the best use of it for attorneys is with a Palm handheld computer, Kowalsky said. The Palm can be set up easily to keep records by date, time, client and type of activity, all recorded in the 15-minute increments that the Supreme Court requires of time records.

A trial version of the software is available at www.responsivesoftware.com, and other companies have similar software for handheld devices. Project Clock CE is one such program that will work with Windows Mobile computers.

Kowalsky said he has carried a Palm with him routinely for years to keep track of his appointments and cases, but he finds it handy to note a brief conversation with a prosecutor or police officer about a case with just a few taps on the computer screen.
That information can be synced with the program on the desktop computer and generate the time records required by the Supreme Court.

“I sort of guessed at it really,” he said of the time he put on the court-appointed timesheets before the fee cap waiver went into effect in July 2007. Precision was hardly required, however, because, at $90 an hour, it took only an hour and a quarter to hit the cap for a misdemeanor and less than six hours for a felony with a punishment of 20 years or less.

Now that he’s recording the time contemporaneously, he finds that “a lot of stuff just slipped through the cracks” before he started doing so.

“Unless you keep time records, you really have no idea how much time you have in cases,” he said. “You may think you do, and you may have a general idea, but you really don’t know.”

The timekeeping also helps in setting the flat fee he typically charges private clients. A record of how long it took to handle a similar case “gives you a better idea of what fee to charge,” he said.

The General Assembly appropriated $8.2 million for the fee waiver program, but it appears that well less than half that will be spent even though the Supreme Court of Virginia estimated that it would be enough for waivers in only about a quarter of the cases in which attorneys spend enough time to exceed the cap.

Roanoke point of view

Judges at a bench-bar conference in Roanoke recently said they would be more than willing to approve the waivers in many cases in which the attorneys don’t request them.

Circuit Judges Clifford R. Weckstein and Charles N. Dorsey said some lawyers have told them that they don’t request a waiver because their clients are responsible for paying the fees as part of their court costs and they know the clients cannot afford them.

“But it’s also true that every day, some lawyer’s children need shoes or tuition payments,” Weckstein said. “If you try a case for an hour and you don’t submit a waiver … you are disserving not only yourself but everybody who wants adequate [court-appointed compensation].

“We are looking for those of you who do criminal defense work to have the ability to do it and not to give your client charity that comes out of your pocket,” he added.

Dorsey said, “It’s just an old simple political reality that, if we don’t fill out the forms and use up the money, then everybody in Richmond is going to be saying …, ‘They don’t really need it.’ “

Peter Vieth contributed to this article.

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