For non-capital representations, courts are encouraged to use case-budgeting techniques in representations that appear likely to become or have become extraordinary in terms of potential costs (ordinarily, this would be a representation in which attorney hours are expected to exceed 300 hours or total expenditures are expected to exceed $30,000 for appointed counsel and services other than counsel for an individual Criminal Justice Act (CJA) defendant). If a court determines that case budgeting is appropriate, counsel should submit a proposed initial litigation budget for court approval. The initial litigation budget includes the proposed costs of attorney work and the use of investigative, expert, and other services. [Guide, Vol. 7, § 230.26.10]
Courts are encouraged to require the submission of a case budget in all federal capital and capital habeas corpus representations. [Guide, Vol. 7, § 640]
Case budgets should be submitted ex parte and filed and maintained under seal. The budget should be incorporated into a sealed initial pretrial order that reflects the understandings of the court and counsel regarding all matters affecting attorney compensation and reimbursement and payments for investigative, expert, and other services. An approved budget should act as a guide for the attorney's use of time and resources.
The initial litigation budget is subject to modification in light of facts and developments that emerge as the case proceeds. For instance, budgets should be updated if the prosecution seeks death penalty authorization. Budgets may be submitted for the entire case, or the court may determine that defense counsel should submit budgets for shorter intervals of time, such as stages of a representation (e.g., in a federal capital case, through the Department of Justice determination of whether to seek the death penalty).
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. Courts, in examining the case budget, may adjust compensation budgeted for services, unless the work has already been authorized and completed. [Guide, Vol. 7, § 230.26.30 and Guide, Vol. 7, § 640.40]