Step 5: Subtract FTEs in the System from FTEs Needed to get Attorney Sufficiency

To assess the adequacy of current staffing levels to handle the adult criminal caseload, subtract FTE attorneys available from FTEs Needed (Step 4). 

To complete Step 5, a provider must:

Calculate Current FTEs in System

The public defense provider needs to understand the number of FTE attorneys available currently in their system to handle the caseload. This sounds simple, but it can be complicated. Most providers have some attorneys who do not carry a caseload and others who have only partial caseloads. These are often attorneys with supervisory or training responsibilities. 

Other provider attorneys might have responsibility for cases excluded from the caseload addressed. For example, as noted previously, the NPDWS only addressed criminal cases in adult court. Most public defense providers also represent people in juvenile delinquency proceedings. Some public defense providers represent people in civil commitment proceedings or dependency proceedings. 

 

FTE in System must match Projected Caseload

In calculating FTE in System, it is important to consider the types of cases that went into, and were left out of, the Projected Caseload (Step 2). The NPDWS Case Types were only intended to apply to adult criminal cases.  In the absence of standards for juvenile cases, at least one jurisdiction (Washington State) has adopted the NPDWS standards for juvenile delinquency cases as well. Other jurisdictions had sought to adopt standards (case weights) for other types of cases from a similar jurisdiction’s workload study. For example, Washington State sought to develop standards for juvenile dependency by adapting the standards from the Oregon public defense workload study. Whatever caseload is used to calculate the Projected Caseload, the FTEs in System should include only those attorneys who work on those types of cases. In a system where trial attorneys work on both adult criminal and juvenile delinquency cases, for example, it may be necessary to discount each FTE for a percentage of time estimated for those cases not included in the projected caseload (here juvenile delinquency). 

Additionally, some public defense providers require new attorneys, or attorneys new to a division, to shadow other attorneys or to second-chair hearings and trials for the purposes of training. In such cases, these providers might choose to count these attorneys, even if full-time, as less than a full (1.0) FTE. In calculating the FTEs in System, the provider must take account for these FTEs who are not fully available to address the caseload being measured.

For example, in the fictional jurisdiction, the provider is a full-time public defender office that employs a total of 410 full-time attorneys. As noted in prior steps, the provider is applying the NPDWS to determine attorney needs for adult criminal cases.

The fictional jurisdiction provider has some attorneys who do not carry adult criminal caseloads:

  • The chief public defender, four assistant chief public defenders, and the training director do not represent any clients.
  • 40 attorneys work in divisions that exclusively handle cases other than adult criminal representations, (e.g., juvenile cases, parent representation in dependency cases, mental health cases, and appeals). 
 

The fictional jurisdiction provider also has some attorneys with only partial caseloads:

  • The adult criminal division is organized into ten teams or trial divisions. 
    • The ten division heads time is estimated at 50% caseload/50% supervision. 
    • Ten other attorneys serve as assistant division heads. Their time is estimated at 75% caseload/25% supervision.

The fictional jurisdiction provider also has some attorneys who are full-time but who are not considered a full (1.0) FTE:

  • Each year the offices hires about 30 new attorneys for the adult criminal division. The office provides these attorneys with a robust training and orientation program that includes a two-week boot camp, followed by shadowing misdemeanor lawyers for two weeks. Throughout the first year, these lawyers are also required to observe different types of proceedings, as well as second chair different types of proceedings for training purposes. The office counts these attorneys as 90% casework to allow for this additional training time.
 

The time these attorneys devote to responsibilities other than adult criminal casework must be subtracted from the total number of attorneys to get the current FTE in System available to represent the adult criminal caseload.  The Figure below shows this calculation for the fictional jurisdiction. 

 

 

Calculate Attorney Sufficiency

The provider must then subtract FTE in System from the FTE Needed to get an Attorney Sufficiency number.

 

  • If the difference is a positive number, more attorneys are needed (e.g., 200 FTEs Needed – 150 FTEs in System = 50 FTE Deficit).
  • If the difference is a negative number, the current attorney staffing exceeds what is needed to handle the caseload (e.g., 150 FTEs Needed – 200 FTEs in System = - 50 or 50 attorneys more than needed). 

The goal is for the system to be at, at least, zero, i.e., FTEs in System = FTEs Needed. A public defense provider may also want to have some excess attorney staffing to allow for unexpected caseload increases, as well as attorney medical/disability leaves or departures. A provider that seeks to provide more robust, holistic representation may also require staffing about the needs projected by the NPDWS.

In the fictional jurisdiction, the FTE Needed is 613.5 and FTE in System of 353.5. The Fictional Jurisdiction has an Attorney Deficit of 260 attorneys. 

 

In other words, our fictional jurisdiction has only 58% of the attorneys needed for their projected caseload.

 

Attorney Sufficiency FAQ (Coming Soon)