Amendments can be difficult. Many barristers leave money on the table. Some don't know where to begin. Some don't know what to ask for. Some work too long on their Amendments.
In this guide, you'll learn sound practices to ensure you know how to access Amendments.
It can be appropriate to amend where two criteria are met:
1 - Where the time spent or estimated exceeds the value of the fixed fee by 25%; and
2 - Where the matter is complex.
It is most appropriate to Amend for specific activities. These activities correspond naturally with the Fixed Fees set out in any given grant.
These Fixed Fees can be thought of as representing time:
A CMM / Case Review Hearing for a Schedule D matter is $720.
An Experience Level 2 Provider's rate is $120. (Click here to find your rate).
Therefore, Legal Aid anticipates that you will spend approximately 6 hours preparing for this matter.
($720 ÷ 120 = 6)
At Aunoa, we call this is the Fixed Fee Time Value ("FFTV").
To some extent you are expected to write off up to 25% more time than the FFTV. This is not an official mandate, but is a useful rule of thumb.
Wherever the time spent by you, the Provider, exceeds the FFTV by 20%, an Amendment to Grant is worth considering.
There are some cases in which the Fixed Fee is $0, therefore the FFTV is 0 hours.
For example, a second Pre-Trial Application is worth $0, as the activity is non-repeatable. Similarly, PAL 4 Trials are valued at $0 by default, requiring an Amendment to Grant.
Whether a matter is complex or not is ultimately a question for the Provider.
It is not whether a given matter is 'highly' complex; nor that it is the most complex matter you have on your plate.
Simply put, the matter only needs to be sufficiently complex to warrant an Amendment to Grant.
Legal Aid provides significant guidance through their complexity criteria (discussed further below). However, these are only guidelines and are in no way required for an Amendment to Grant to be approved.
To establish complexity, rely on your Amendment's Explanation in conjunction with the relevant Complexity Criteria.
Explanations to Legal Aid require a number of criteria to be satisfied, as set out on the Amendment to Grant Form.
Setting out the explanation is a straightforward process of conveying the various aspects of the matter requiring your attention.
Below is an admittedly lengthy example of a redacted explanation filed, with their permission.
The explanation should provide you with a solid framework from which to base your future Amendments to Grant:
Mr X appears on multiple charges of {PAL 4 charge}, and one charge of conspiring to do so. Mr X is facing an end sentence of life imprisonment, if not multiple life sentences. Mr Xs Jury Trial is set down for 11 weeks. There are co- accused.
It will be necessary to bring a second lawyer on as junior to assist in preparing for the matter. There is no manageable way that the disclosure could be reviewed or kept in the mind of a single barrister, especially considering the relative imminence of the Jury Trial.
As this is an extremely serious and complex PAL 4 matter, we are seeking that {PAL 4 Lawyer #2} be brought on as co-counsel. We also believe that the presence of {PAL 4 Lawyer #2} as co-counsel will assist with the prejudice inherent in jury fatigue'. The Crown have two Prosecutors attending this matter, thereby satisfying the guidelines.
The volume of disclosure for this matter is enormous:
- There are (according to our computer's estimate) over 200,000 video files containing CCTV footage, each file possibly containing relevant information.
- There are over 13,000 pages of disclosure.
- There are 76 hours of intercept phone calls.
- The Disclosure Index alone contains 1619 entries.
- There are cell phone extractions containing extensive video and image footage.
- There is a timeline of events provided by the prosecution which contains over 3,681 text entries.
Some legal research will be necessary.
A large amount of time will be necessary to prepare for cross-examination, and we are seeking (on average) 2 hours per witness.
Mr Fendant's matter is set down for {four weeks from today, the date of reassignment}.
Between today and that date it will be necessary to review the disclosure, attend, advise, and take instructions from Mr Fendant, and establish of a Theory of the Case. Between now and that date, counsel intends to spend at least 4 days meeting with Mr Fendant in prison to take instructions, particularly with regards to the intercept information. Extremely thorough instructions and a careful and informed understanding of the context of many of the phone calls will be necessary.
It will also be necessary to consider the role of the co-accused. Notably, one co-accused is considering entering guilty pleas. This will complicate Mr Fendant's matter.
Finally, we are seeking in-trial preparation for each day's time getting ready (55 days x 90 minutes).
We appreciate that this is a particularly large amendment to grant. However, considering the enormous volume of disclosure (200,000+ video files) we consider this to be a conservative estimate of our time. Please contact us if you wish to discuss it.
- Significant new points of law to be researched
At Aunoa we are aware that many providers interpret this criterion to mean “Significant legal research required”.
Considering that criminal cases are infinitely multivariate and that providers are constantly researching points of law which are new to them, this seems an appropriate interpretation.
However, it is worth making this explicit within the reasoning of your Amendment to Grant (discussed below).
- Volume / Nature of Disclosure
The meaning is set out within the Grants Handbook and has been copied below.
PAL 1. Disclosure index more than three pages long and more than 100 full pages of disclosure2. More than 60 pages of disclosure and more than half of this text transcription, photocopied hand-written material, or transcription of interviews on DVD.
PAL 2-4. More than 200 full pages of disclosure2. More than 100 pages of disclosure and more than half of this text transcription, photocopied hand-written material, or transcription of interviews on DVD.
- More than five charges being defended/Judge- alone trial
It is unclear why the words “Judge-alone trial” are included.
Reference to the Grants Handbook sets out that more than five charges is considered a criterion in all cases, from PAL 1 to PAL 4.
- Five or more witnesses
At Aunoa we recommend selecting this criterion only when witnesses are relevant to the particular hearing. At Sentencing stage? Probably not relevant.
- Co-defendants/accused
Aunoa recommends selecting this criterion only when consideration of the co- defendants/accused is relevant to the particular hearing; which is admittedly the majority.
- Three or more prosecution interviews with defendant/witness
This appears to refer to three or more interviews with any given party, rather than three or more total interviews.
- Vulnerable defendant/complainant
Children, those with mental health issues, or otherwise vulnerable individuals are likely to give ise to complexity as the matter will need to be handled delicately.
- Communication barriers
In Criminal Defence communication barriers are frequent – changing cell phone numbers, defendants with anger issues or lower intelligence, defendants that fail to appear, and so on.
A useful rule of thumb is to consider that Communication Barriers may be satisfied wherever issues in communication have required additional preparation.
Disbursement Amendments are requests for Legal Aid to cover the cost of various reports, experts, or expenses.
To seek a disbursement simply follow these steps:
1. Obtain a quote of the cost from the relevant party (Private Investigator, Psychologist, Photocopier, etc).
2. Prepare an Amendment to Grant requesting the value of the disbursement excluding GST.
3. Set out the reasons for the disbursement in the Explanation section.
4. File the Amendment to Grant via email, with the quote attached.
5. Then, when the time comes, invoice the approved disbursement.
For more assistance, sign up to Aunoa today and contact [email protected].
