Our commissioner's court recently thought it would be a great idea to track the productivity of all county employees. Of course, that includes us in the appellate section.

The commissioners left it to us to devise some method of quantifying our productivity. Our chief fears that any simple system (like saying I wrote 26 appellate briefs and 3 writ answers in 2003, for example) will be used against us because people outside of our specialty will not appreciate how much work can go into each brief (especially in a death-penalty case).

I'm afraid that any productivity-tracking system we come up with will suffer from that same defect, no matter how complex. I do think it is reasonable to take into account all the time we spend answering trial attorney questions, updating the library, etc. As all of you already know, appellate lawyers do a lot more than just write briefs.

I'm hoping that someone else has already created a satisfactory method of measuring appellate productivity. Please share it with us if you have.

R. Dulany
El Paso

We have a fairly broad set of numbers we report each quarter, briefs coming in, briefs filed, success rates, overall backlog, time to brief, writs coming in, writ reponses filed, success rate, #of late responses, and basic numbers reports for assorted litigation we handle, such as expunction requests, open records requests, post conviction DNA motions received, etc.

Much of what we report is generated by our case management database.

What we have not been able to do well is record and report the number of hours we spend helping trial prosecutors with issues.

I've emailed you examples.

While attending the NDAA Appellate workshop in South Carolina two years ago our small group discussed the problem of fairly evaluating appellate workloads. Besides recording the quantity of each type of project completed, some of us have attempted to assign values to them. State's appeals, capital cases, novel issues, long records, etc., are assigned a higher value on a 1-5 range than generic writs and briefs. I do this when assigning briefs and then reconsider the value after reading the finished product. Of course, even this process is subjective--but maybe it is some small improvement on recording mere quantities.
We also have to provide our commissioners with a statistics on workload measures and outcome measures (a quantities game, unfortunately). Dallas has a similar program. If you call (972) 548-4323 (our general number) and ask for me I will ensure we FAX a copy of our worksheets.

JS makes a good point. Our database tracks the number of points in a brief and the size of the reporter's record. When assigning cases, we consider difficulty of the issues, experience with similar issues, and pending workload. The database can also give a basic idea of the number of cases an attorney has at a given point. We have not been reporting that information, but it has been used to support budget requests.

We report capital numbers separately from our non-capital numbers.

The simplest thing, though, has been to figure out everything we do that can be counted, count it, and report it.

Do the commissioners somehow reward those who look to be productive? Or do they start questioning the employment of someone who appears not to make the grade? What is their purpose in this exercise? I suppose it really makes no difference since they must be kept "happy", but the productivity of the appellate mind cannot be judged in this fashion. When you are primarily representing the appellee even "success rate" is largely misleading, considering you would not even need to respond to 50% or more of the briefs to win. I don't know about everyone else, but I view myself much like an inventor. The best ideas come when I least expect them and often enough not while I am on the county clock (I still include them in my brief). Now I am curious how they measure productivity of the appellate sections at civil firms.

There is a danger in factoring in a "win" percentage when evaluating appellate prosecutors: Unlike trial attorneys, who can plea bargain with a weak case, appellate prosecutors are forced to "dance with the one who brung ya." There are no "negotiated plea agreements" after the notice of appeal is filed. (Well, at least I never got to do that.) Thus, there are times when appellate prosecutors get stuck with an appeal they know they're going to lose before they even write the brief. (See Bass v. State, 64 S.W.3d 646 (Tex. App.--Texarkana 2001, pet. ref'd) for my personal favorite.)

I think a better way to measure "productivity", versus "effectiveness" (if the latter can even be measured accurately), would be to evaluate clearance rates. For example, is the prosecutor creating a backlog or alleviating a backlog? Does the attorney file three motions for extension as a matter of course, or does the attoreny file the State's brief within the first 30 days (20 days if its an accelerated appeal) from the filing of the appellant's brief?

One of the chief measuring sticks the Office of Court Administration uses to evaluate the courts of appeals is to measure their "clearance rates." While not perfect, the system at least gives each appellate court some indication of where it stands in terms of productivity when compared with the other courts.

I also agree that the commissioner's court should be made aware of how many hours beyond 8-5 the attorney works. As one person already noted, appellate attorneys often come up with their best ideas outside the normal work day... and I would say most probably take their work home (reporters records) with them at least 1 night a week.

The numbers we report include clearances as well as success rates. You really need both so that the people who are evaluating the unit can see you are not compromising in one area to achieve success in another. An objective observer could review our numbers from the last five years and see that we eliminated a significant backlog, that we complete our cases faster, but that we still maintain the same overall result. They can also evaluate the overall volume of work coming in and going out. No one measure is useful without the others for control purposes.

No reporting system is perfect. It is easy to let reporting and stat keeping get out of control, to the point where an organization spends more time keeping records than doing anything useful. An office with one or two appellate lawyers (also trying cases) will need a different system than we have here with 23 lawyers litigating appeals, writs, and all other "orphan" tasks.