Mark Stephens has been the Chief Public Defender at the Knox County Public Defender's Community Law Office (CLO) since 1990. He has litigated excessive workload cases in his office twice, once in 1991 and again in 2008. He has a passion for controlling the caseloads in his office so that he and his lawyers can give every one of their clients the competent and effective assistance of counsel each of them deserve under the Sixth Amendment and applicable Rules of Professional Responsibility.

Mark's commitment on this issue is one of the reasons his office and the Metropolitan Nashville and Davidson Public Defender Office (led by the equally committed Dawn Deaner) were chosen for a workload study funded by the Department of Justice and undertaken with the assistance of the ABA's Standing Committee on Legal Aid and Indigent Defendants ("SCLAID") and the National Association of Criminal Defense Lawyers ("NACDL"). This workload study would be modeled on the workload study of the Missouri State Public Defender, which was published in June 2014. This study, named "The Missouri Project," was conducted by the nationally recognized accounting and consulting firm of RubinBrown on behalf of SCLAID.

Like the Missouri Project, the Tennessee workload project would be grounded on the foundational data known as PERMANENT TIMEKEEPING by all public defenders. Not the twelve or sixteen or even twenty-six weeks of timekeeping done (and then abandoned) in previous studies, but PERMANENT TIMEKEEPING. That would provide the researchers with the world of "is" and would enable the researchers to then study the entirely different world of "should" with a rigorous application of the principles of the Delphi methodology to the workload of a public defender. The Delphi methodology was introduced in 1962 by researchers at the Rand Corporation. This method has been widely utilized to gather expert opinion and generate a reliable consensus.

Upon completion of the study, Mark and Dawn will be able to compare the world of "is" to the world of "should," manage their offices with continuous data showing the difference between those two worlds, and demonstrate to the legislature and the courts why they need additional funding to achieve reasonably effective assistance of counsel for every one of their clients.

This workload study would require a massive cultural change within Mark's organization. And it would require equally massive commitments to get a system up and running and to then implement it. In 2008, CLO licensed a case management system from defenderData (now Justice Works, referred throughout as such). A system called “LegalPro” had served as the CLO's case management system for approximately ten years at that time. When the CLO transitioned to JusticeWorks, Mark chose not to activate the time tracking feature.

Mark revisited that decision in 2012, inspired by a paper on public defender timekeeping published by Dennis Keefe, the then-Director of the Lancaster County Public Defender’s Office in Lincoln, NE. The CLO had JusticeWorks activate its inbuilt timekeeping capabilities, modeling their time classification system on Dennis Keefe's work. Over the course of several months, while experimentally tracking time, they made adjustments to both the user interface and the classification system. As other matters took precedence, however, the experiment gradually slowed to a stop.

That changed in late 2013 when Mark read The Missouri Project report, talked to those involved in that project, talked to Dennis Keefe (whose office had been doing time tracking for twenty years, and found it extremely valuable in controlling caseloads), and talked with many others knowledgeable about the value of timekeeping in the management of a public defender office, particularly with respect to caseload control. Mark then made the decision to revamp and reinstitute the CLO's the timekeeping project.

In January 2014, Mark and his “guru,” CLO Information Technology Director Issac Merkle, began intensive work on a system of time classification for the CLO, initially focusing on attorneys. Mark talked with Peter Sterling, the Missouri Public Defender's "guru" on timekeeping (according to the Special Master in the Missouri litigation) and asked Peter to share time tracking Codes, Tasks and Definitions used in Missouri. They reviewed Peter's system of time classification, incorporating and modifying ideas where appropriate to fit Knox County’s jurisdictional needs and work habits. In mid-February, they expanded their system to encompass work performed by non-attorney staff, as well. The CLO has a robust social work division, investigators and administrative support. All these staff members also did permanent timekeeping, even though the RubinBrown study would only analyze lawyer time.

At the same time, Issac was coordinating with JusticeWorks to get a new, customized timekeeping system incorporated in the CLO's case management system. Mark and others reviewed several existing defenderData timekeeping systems already implemented elsewhere. The approach used by the Federal Defender’s Office (who also utilizes JusticeWorks case management software) fit best with existing plans, and with about a dozen further alterations, it was adapted for the CLO's case management system. After a couple of weeks in testing, the new timekeeping system was deployed in the live user interface.

In March of 2014, Mark, Issac, and several others in the CLO began time tracking. In this initial month of real-world testing, many adjustments were made to the Codes, Tasks and Definitions. Then he met with his staff, explained what he was doing, and why he was moving in this direction.

Mark gave his staff the history of the Missouri experience and contrasted that with what was happening in Tennessee, and gave his staff The Missouri Project Report to read. He explained how important developing a long-term strategy for controlling their workload was to the mission of CLO. Issac Merkle then demonstrated to the staff how JusticeWorks’ time tracking worked. The Codes, Tasks and Definitions were distributed to the staff and time tracking began as a practice run. All staff were invited to participate in a several month long live experiment, during which feedback would be used to refine the system further before it was “locked” from future modification and timekeeping became mandatory for all staff.Throughout April, May, and June, roughly 70|PERCENT| of staff participated to some degree, with about half of total time being tracked in the test system. At monthly staff meetings, time tracking was discussed. Mark listened to feedback, made changes to the system and made every effort to ensure that everyone was playing by the same rules. In the June meeting, Mark advised everyone that now that they had 90 days of "practice" under their belt, they would go live on July 1, 2014 with time tracking. "Live" meant that all staff members were time tracking and the data so maintained would be subject to scrutiny by outside agencies.

To facilitate time tracking – since many if not most public defender tasks are not done in the office, but in court, jail or the field – the CLO licensed a web-based version of its case management system and purchased iPads for each lawyer, social worker and investigator, so they could track time contemporaneous to the performing of the activity. Contemporaneous time keeping substantially increases the reliability and accuracy of the data. JusticeWorks permits time tracking and file documentation to be done contemporaneously.

Six months went by with "live" time tracking. On January 27, 2015, Mark notified his entire staff with a memo that "we are only a few days away from going live on the NACDL/ABA Time Tracking project.” He made clear the goal: "This project, if successful, will provide a data trail that will establish the CLO as the most responsible, transparent, accountable and reliable agency in Tennessee government." And he made no bones about his most immediate objective for his staff, describing the project as "the greatest opportunity to take charge – and control – of CLO workloads."

Mark let his staff know in no uncertain terms how important their task was. "Remember, what we are documenting will be put out for the entire world to see. You have a responsibility to your clients and co-workers to understand what we are asking of you and to give us your very best effort to memorialize what it is you do on behalf your clients, and how much time it takes for you to do it." Again, he gave them a copy of The Missouri Report, urged them to read it again, and told them, "We are following that blueprint."

Mark noted that in studying their time tracking to date he had noticed a potential issue. "A work year for any CLO employee (including an attorney) is calculated at 1875 hours (7.5 hours per day x 5 days per week x 50 weeks per year, with 75 hours of annual leave (2 weeks)," and noted that most lawyers (public or private) are "expected" to work more than 7.5 hours per day or 1875 annual work hours. Then he set out the controlling principle: "Our uncontrolled workloads, and the Rules of Professional Responsibility, mandate that we work longer than an 8:30 to 5:00 day in order to fulfill what is ethically required of us."

Time tracking, Mark noted, "is part of an attempt to gain some control of our workloads." Then Mark looked at the last quarter of 2014 numbers and noted that a majority of his lawyers had reported working less than a projected 1875 hour work year. This undoubtedly was due to the newness of timekeeping, but Mark insisted that hours "tracked" should come close to hours "worked," and that would surely be used by CLO's detractors that CLO lawyers were working less hours than they were being paid to work, reinforcing the "governmental worker" stereotype.

"So here's my message to each CLO lawyer: if you are working 7.5 hours per day (or less), step it up. With our existing workloads, you can not meet your ethical and professional obligations to clients working 8:30 to 5:00."

The effect of Mark’s January 25, 2015 memo to his entire staff is dramatically illustrated in two charts extracted from an internal CLO Attorney Time Tracking Data report. First, look at the time tracked by CLO attorneys during the fourth quarter of 2014 (October-December), and see how many attorneys are “in the red.”