This year would be a fitting time to celebrate a leap in Kentucky public defender leadership, an innovation which advanced the systematic assurance of representation at the highest levels, a paradigm shift of how Kentucky defenders work on behalf of clients.

Our harsh Kentucky realities make such change unlikely as a matter of rational probabilities. Clients and the facts of their cases present challenges often beyond our apparent individual capacities. Supported by public opinion, legal precedents which respect individual liberties less and less. Our volume of work is more than a professional can do competently. Most disheartening of all, is the way we defenders treat each other's representation of clients within our various Kentucky defender organizations.

Today, two paradigms are available to Kentucky defenders as we decide to either settle in or to take some risks. The world inexorably moves towards interdependence: cooperation, teams, "we." Indeed, this is the risky future. Yet our defender culture mocks the world's collaborative current with its longstanding procrustean independence, its rigid rationalism imbued by our law school education, and the destructive belief of many defenders that we are the center of the universe.

We have the choice of settling into our current culture or of pioneering a new way of working within our Kentucky defender organizations. Joel Barker in Future Edge: Discovering the new Paradigms of Success (1992) tells us that the world's paradigm pioneers are characterized by: 1) knowing the new way is worth doing; 2) having the guts to act on what they believe is needed; and, 3) being in it for the long haul to see it to fruition.

Let's look at what this intuition, courage and commitment would net us if pioneered by defender leaders in this Commonwealth on a daily basis. Public defender managing is too frequently characterized by one of two dysfunctional extremes: 1) criticizing an employee's representation of a client after the fact, or 2) taking a hands off attitude as to the employee's performance.

In the courtroom, public defenders have long excelled at reacting, undermining and attacking the prosecution's case. Disabling, weakening and assailing police, prosecutors, and judges are hallmarks of effective defending within the adversary system. Unfortunately, defender managers too often consciously and unconsciously bring these destructive behaviors to the management of performance of staff attorneys. Other defender managers do little or no managing because they have no time as a result of their many cases, they believe their staff attorneys' licenses insure competence, they are reluctant to confront a colleague, or they believe ethics prohibits it.

A new paradigm of managing is upon us: systematically helping staff attorneys with proactive coaching. An example of this new way of helpful continuous coaching is the case review process.

What is case review & its purpose? The primary purpose of case review is to assure quality representation to our client before, not after, the representation. This is achieved by encouraging common sense, raising awareness, reinforcing a process, offering additional perspectives by looking at the case comprehensively at a point in time when the staff attorney feels ready for the next significant event in the case, and most importantly supporting the attorney's effective representation.

How is case review conducted? At its best, case review is an ongoing process between the attorney representing the client and the attorney's supervisor or one or more other experienced attorneys. Ideally, it is driven by the attorney representing the client. The attorney with the case to be reviewed is the person who engages others for the assistance needed. For attorneys who are not operating at a level of awareness to seek the review on their own, supervisors can invite the review process be taken advantage of or it can be a routine office procedure.

As a matter of policy, we have decided at DPA that a case review will be done on all capital cases. Each attorney without a capital case will have at least one case review done each year. This is reflected in all supervisor and employee performance agreements.

Case review can take different shapes. The medical model of obtaining data, diagnosing and providing a treatment plan with periodic checkups is a standard approach of providing help. The mental health therapeutic approach is another way to help. The patient reports the problem(s), there is a structured dialogue and then diagnosis and treatment takes place. Often the treatment amounts to arriving at an awareness of the obvious, making a commitment to the known, having an increased ability to employ healthy processes, gaining confidence, or greater perspective. The case review approaches can be highly directive or more supportive, depending on the needs of the attorney. The case reviewer can ask the attorney to articulate needs and then the two can decide which to focus on. The reviewer could systematically go through the components of the trial, appellate, or post-conviction representation questioning and dialoguing as necessary with the attorney.

It can happen between a supervisor and a staff attorney or among peers. Peer review's "proven way of enhancing performances, its various formats, and its lethargic acceptance by attorneys" is reviewed by Edmund B. Spaeth, Jr., in To What Extent Can a Disciplinary Code Assure the Competence of Lawyers?, 61 Temple L.Rev. 1211 (1988).

Context of case review. Where does case review fit into the work on a case? Quality mandates deliberate employment of quality assurance processes. Quality legal processes include thinking expansively and creatively at the beginning of the case representation process (brainstorming with others), coaching throughout case representation (case review or peer review), mock

practices with feedback; observation in court; random case-file review; evaluation by the customers (clients); and performance evaluations. The larger quality representation coaching process includes the following steps:

1) performance planning: role identification, goal setting, contracting for coaching style;
2) obtaining relevant case data;
3) organizing case information;
4) brainstorming case solutions and strategies;
5) analyzing;
6) deciding;
7) case review;
8) practicing with feedback;
9) executing in court;
10) observing litigation;
11) co-counselling;
12) case file review;
13) performance surveys;
14) performance evaluations.

The coaching. Through the case review process, the coach has to help the attorney not only competently perform in this particular case but also help the attorney learn how to improve overall. The coaching includes evaluation of how the process of representing this client in this case is being done with the goal of increasing representation knowledge, skills, attitudes and processes for this and future clients by this attorney and other attorneys in the office. It seeks client-centered quality representation, greater self-awareness, better processes, fuller perspective. This is done with coaching the development of the following: helping the person reframe problems, helping the person transfer skills from one context to the problem area, helping the person explore strategic alternatives, and helping the person confront negativity within themself or others they are working with.

Who does case review? Obviously, new or inexperienced attorneys will benefit from case review, as they work to gain awareness, experience, perspective, and knowledge of standard methods of representation. Less obviously, the experienced attorneys will benefit form such review to confront and account for bad habits, being stuck in the routine, skipping parts of the process out of arrogance, lacking efficiency, confronting personal defenses that may be unknown.

Advantages of case review. The analysis of a case with an attorney before the attorney performs the particular work in the case has the huge advantage of helping the attorney improve by assisting future practice which gives the attorney more confidence, more control and more effective experiences. This positive experience of help is likely to encourage the employee to seek additional assistance via case review. Case review will take place frequently for new attorneys and when attorneys transition into new levels of practice, like from misdemeanor court to felony court, or from an intermediate court of appeals to the state's highest appellate court, or when handling a type of case that involves specialized skills, like a sexual abuse case. Because of their complexity, the enormity and their protracted nature, case review will occur for all capital cases and probably more than one time. Senior attorneys who fall into ruts benefit from this outside perspective, boost of confidence, and the raising of the bar.

The comprehensive case review process allows for an integrated process which addresses an ensemble of disciplines necessary for immense learning. In The Fifth Discipline: The Art and Practice of the Learning Organization (1990) Peter M. Senge details five essential learning disciplines:

Customer's standard is quality. Quality is the only acceptable standard for service to the customers of today. We always want quality service when we are the customer. We really have little tolerance for anything less whether it be service for our car, our airline flight or our body.

Some American car companies embraced a dangerous attitude in the 1970s that left an indelible mark on their image. They pushed their product out the factory door to sell it and had the attitude that they would fix anything wrong with it later. Enter the quality conscious, continuously improving Japanese who sought to sell their product only if it had no or very few defects. The Japanese knew their long range success was in customers who were satisfied from the beginning of purchase.

The Toyota Camry plant in Georgetown, Kentucky has a clothes line running the length of the assembly line. Every employee bears the responsibility to pull it if they see a defect because Toyota does not want the car to leave the plant with defects which will displease their customer. When the employee pulls the cord, fewer cars are built that day but the ones which are assembled have fewer defects which likely will insure demand for them into the future. An employee who pulls the cord receives a lot of attention because Toyota wants the defect fixed and the line rolling as soon as possible but the attention is not negative because Toyota wants to encourage the identification of defects.

While the legal representation business is in many ways significantly different from selling a material product, it does not differ greatly from providing medical services. We want our body or the body of our child competently fixed...the first time. We have no tolerance for mistakes or for a failure to use the best techniques known nationally. Defender clients who want quality are demanding innovations like case review from defenders. It's not unusual for customers to cause innovations. Koozes & Posner, The Leadership Challenge (1995) at 46.

National legal standard is quality. The ABA Standards for Criminal Justice Providing Defense Services (3d ed. 1992) set out quality as the standard for all legal representation: "The objective in providing counsel should be to assure that quality legal representation is afforded to all persons eligible for counsel pursuant to this chapter." Standard 5-1.1. Case review provides a way to continuously improve the methods of working to solve problems for clients before the representation is provided.

Conclusion. Proactive coaching which provides disciplined help for defenders is no longer an option for Kentucky defender leaders. The paradigm of defender coaching has shifted. Colorado defenders employ a pretrial review process. After a number of years of education, Kentucky defenders are beginning to implement a similar process we identify as case review at the trial, appellate, and post-conviction levels. The National Legal Aid and Defender Association has provided substantial education on these quality assurance processes at many of its Defender Management Conferences since the early 90s. See also Vince Aprile, "Appellate Case Review: A Strategy for Success," NLADA Appellate Brief, Vol. 4, No. 1 (Oct. 1996) at 1. Civil legal aid programs have long fostered case review systems. Gail Elizabeth Price, "Case Review: A Program of Self-Assessment," Clearinghouse Review (April 1984) at 1373.

Kentucky cries out for pioneers of the new paradigm of coaching characterized by proactive help. We know what the new way of coaching has to be. We do not yet have across the board in Kentucky's various defender organizations the pioneers that are implementing this new way with courage and with a deliberate commitment to making it work over the long haul. Our clients demand for high quality representation beckons a decision from us now: will we be settlers or pioneers?

The forms that follow are a product of many DPA staff attorneys, including Vince Aprile, Margaret Case, Rebecca DiLoreto, Larry Marshall, Ernie Lewis, Ed Monahan and others.

Forms:  DPA Criminal Defense Trial Case Review (Word)
            DPA Criminal Defense Appellate Case Review (Word)

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