Chapter 6, § 640: Case Budgeting

§ 640.10 Overview
§ 640.20 Purpose and Procedures
§ 640.30 Matters for Inclusion in the Capital Case Budget
§ 640.40 Authorization for Investigative, Expert, and Other Services Prior to Submission of Case Budget

§ 640 Case Budgeting

§ 640.10 Overview

(a) All capital cases should be budgeted with the assistance of case-budgeting attorneys and/or resource counsel where appropriate. See:  JCUS-MAR 2019, p. 18.

(b) Courts are encouraged to require appointed counsel to submit a proposed initial litigation budget for court approval that will be subject to modification in light of facts and developments that emerge as the case proceeds.

§ 640.20 Purpose and Procedures

(a) The budget should serve purposes comparable to those of private retainer agreements by confirming both the court's and the attorney's expectations regarding fees and expenses.

(b) Case budgets should be submitted ex parte and filed and maintained under seal.

(c) Consideration should be given to employing an ex parte pretrial conference to facilitate reaching agreement on a litigation budget at the earliest opportunity.

(d) The budget should be incorporated into a sealed initial pretrial order that reflects the understandings of the court and counsel regarding all matters affecting counsel compensation and reimbursement and payments for investigative, expert, and other services.

(e) An approved budget should guide counsel's use of time and resources by indicating the services for which compensation is authorized.

(f) Case budgets should be re-evaluated when justified by changed or unexpected circumstances and should be modified by the court where good cause is shown.

§ 640.30 Matters for Inclusion in the Capital Case Budget

Matters that may affect the compensation and reimbursement of counsel and payments for investigative, expert, and other services (see: Guide, Vol 7A, § 640.20(d)) include, but are not limited to the following:

(a) The hourly rate at which counsel will be compensated (see: Guide, Vol 7A, § 630.10 and § 630.20);

(b) In capital habeas corpus cases:
The best preliminary estimate that can be made of the cost of all services (counsel, expert, investigative, and other) for the entire case (in its discretion, the court may determine that defense counsel should prepare budgets for shorter intervals of time);

(c) In federal death penalty cases:

(1) Prior to prosecution decision to seek death penalty authorization:

The best preliminary estimate that can be made of the cost of all services (counsel, expert, investigative, and other) likely to be needed through the time that the Department of Justice (DOJ) determines whether to authorize the death penalty;

(2) After prosecution decision to seek death penalty authorization:

The best preliminary estimate that can be made of the cost of all services (counsel, expert, investigative, and other) likely to be needed through the guilt and penalty phases of the trial (in its discretion, the court may determine that defense counsel should prepare budgets for shorter intervals of time);

(3) Death penalty not sought:

As soon as practicable after a decision not to seek the death penalty, the number of appointed counsel and hourly rate of compensation should be reviewed according to § 630.30;

(d) Agreement that counsel will advise the court of significant changes (counsel, expert, investigative, and other) to the estimates contained in the order;

(e) Agreement on a date on which a subsequent ex parte case budget pretrial conference will be held;

(f) Procedure and schedules for submission, review, and payment of interim compensation vouchers (see: § 660.40.10 and § 660.60);

(g) The form in which claims for compensation and reimbursement should be submitted (see: § 630.60) and the matters that those submissions should address; and

(h) The authorization and payment for investigative, expert, and other services. See: § 660.

§ 640.40 Authorization for Investigative, Expert, and Other Services Prior to Submission of Case Budget

(a) Recognizing that investigative, expert, and other services may be required before there is an opportunity for counsel to prepare a case budget or for the court to approve it, courts should act upon requests for services where prompt authorization is necessary for adequate representation.

(b) Courts, in examining the case budget, may reconsider amounts authorized for services prior to the budget's approval; however, courts may not rescind prior authorization where work has already been performed.

Chapter Appendices

Appx 6A Recommendations Concerning the Cost and Quality of Defense Representation (Updated Spencer Report, September 2010) (pdf)

Last revised (Transmittal 07-014) January 5, 2022
Last revised (minor technical changes) January 2, 2024